Weis Markets, Inc. v. United Food & Commercial Workers Union, Local 400

JAMES S. GETTY, Judge, Retired, Specially Assigned. Weis Markets, Inc. and West Side Associates (hereinafter referred to collectively as Weis), appeal from a decision of the Circuit Court for Montgomery County denying appellants’ petition for an injunction restraining United Food and Commercial Workers, AFL-CIO, Local 400 (hereinafter referred to as Local 400) from engaging in informational picketing on appellants’ property. West Side Associates owns and manages a shopping center in Gaithersburg, Maryland. Weis Markets, Inc., owns and operates a supermarket within the center and is the owner of an undivided 16% interest in the common area of the center.

The parking lot and driveway in front of the supermarket are referred to as common elements, and the sidewalk adjacent to the store, including the pick-up area at the front of the sidewalk, is designated as a limited common element. These common elements are reserved to Weis in the Declaration of Condominium incorporated by reference in the Weis deed. Weis has constructed a canopy over the sidewalk and an intermittent metal railing at the outer edge of the walk. Beneath the canopy are 300 shopping carts which narrow ²⁸⁷ the pedestrian area from 12 to 8 feet.

A customer takes a cart inside the store, selects and pays for his purchases and returns to the sidewalk area. Employees stationed on the porch area watch the merchandise while the customer brings his vehicle to the front of the market. The employees transfer the merchandise to the vehicle and return the cart to the storage area. Since October 1, 1988, Weis has posted a sign on the outside wall of the store stating: “Solicitation, Distribution of Literature or Trespassing by non-employees on these premises is Prohibited.

Weis Markets, Inc.” West Side, moreover, has posted signs informing the public that the shopping center is private property and that solicitation, loitering, or distribution of handbills is prohibited. West Side’s Rules and Regulations prohibit picketing, solicitation and distribution of literature in the common areas. Weis’s no trespassing policy has been strictly enforced despite requests from fraternal, charitable, religious and other organizations seeking permission to hand out literature, conduct sales or collect money on the premises. On November 2, 1989, Local 400 established a picket line numbering 24 people, including one attired in a seven-foot tall rat suit, under the canopy or porch area of the supermarket.

The pickets wore signs requesting that customers not shop at Weis, they distributed literature to Weis customers and verbally requested that the customers patronize a Weis competitor. Varying in number from 2 to 11, the picketers continued for an additional 6 days over the next several weeks. Offers to compromise by allowing pickets on the island next to the pick-up area were refused by Local 400 and, to eliminate the interruption of its business, Weis sought an injunction. A temporary restraining order issued by the circuit court limited the number of pickets.

Thereafter, Local 400 filed a motion to dismiss the complaint contending that the court lacked jurisdiction to grant relief by reason ²⁸⁸ of the Maryland Anti-Injunction Act and the National Labor Relations Act. Local 400 also alleged that it did not engage in criminál trespass and that under Maryland law an injunction was not obtainable even if the court had jurisdiction. On November 29 the circuit court dismissed the case for lack of jurisdiction under Article 100, Section 65 of the Maryland Anti-Injunction Act. This appeal followed.

The trial judge concluded as follows: I do not believe any of the defendants’ actions have risen to the status of a criminal trespass. I do, however, believe that for the purpose of this proceeding that the defendant Union is chargeable with a civil trespass. Having made such a finding, were this a case for a traditional equitable injunction, without more — even though such relief is an extraordinary remedy, I would be inclined to grant such an injunction; however, labor disputes have generated much federal and state legislation, and I am prohibited from granting an injunction unless I find all of the following, and what I find very germane in making this decision is two sections of Article 100 which deals with work, labor and employment in Maryland, particularly Section 65(e) [1] which makes a court without jurisdiction to grant an injunction where the action involved is giving publicity to or obtaining or communicating information regarding the existence of or the facts involved in any dispute whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be even with intimidation, and I add the word intimidation,1 2 or coercion or by any other meth ²⁸⁹ od so long as that method does not involve, and I am freely interjecting words in here, fraud, violence, breach of the peace or threat thereof____ The issues raised by this appeal are: 1. Whether the trial court erred in concluding that Section 65 of the Maryland Anti-Injunction Act deprived it of jurisdiction to enjoin appellee’s picketing. 2.

Whether the trial court erred in concluding that the conditions necessary to enjoin appellee’s conduct under Section 68 of the Anti-Injunction Act were not established. 3. Whether the matter is preempted by federal law, since the dispute is within the jurisdiction of the national Labor Relations Board. A brief review of the history of the Maryland Anti-Injunction Act and the case law, primarily federal case law due to the paucity of Maryland cases, is meaningful in deciding the issues raised herein. Maryland’s Anti-Injunction Act, sometimes called “Maryland’s Little Norris-LaGuardia Act,” was passed as a supplement to the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115 , ²⁹⁰ to “abridge substantially the authority of courts of equity to issue injunctions in matters involving labor disputes____” National Union of Hospital and Health Care Employees District 1199E v. Lafayette Square Nursery Center, Inc., 34 Md.App. 619, 628 , 368 A.2d 1099 (1977).

Thus, art. 100, § 63, titled “Declaration of policy” provides in pertinent part: In the interpretation and application of this subtitle, the public policy of this State is declared to be as follows: Negotiations of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers the individual unorganized worker is helpless to exercise actual liberty of contract, and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from interference, restraint or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Md.Ann.Code art. 100, § 63 (1985 Repl.Vol.). The plain language of the Act clearly states the purpose and legislative intent. In Logan Valley Plaza, Inc. and Weis Markets, Inc. v. Amalgamated Food Employees Union Local 590, 425 Pa. 382 , 227 A.2d 874 (1967), the Pennsylvania Supreme Court, notwithstanding the Pennsylvania Anti-Injunction Act of 1937, affirmed a lower court injunction against picketing by 13 pickets on a Weis Market porch and parcel pick-up zone at a shopping center in Altoona, Pennsylvania. The Court ²⁹¹ held the Anti-Injunction Act to be inapplicable since the trespassory nature of the picketing made it unlawful.

On further appeal, the United States Supreme Court held that the union’s picketing was protected by the First Amendment. “Because the Pennsylvania courts have held that ‘picketing and trespassing’ can be prohibited absolutely on respondents’ (shopping center) premises,” the Supreme Court said, “... we have no occasion to consider the extent to which respondents are entitled to limit the location and manner of the picketing or the number of pickets within the mall in order to prevent interference with either access to the market building or vehicular use of the parcel pickup area and parking lot.” Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 321 , 88 S.Ct. 1601, 1610 , 20 L.Ed.2d 603, 613 (1968). Four years after deciding Logan Valley, the Court considered the scope of a shopping center owner’s property rights in Lloyd Corp. Ltd. v. Tanner, 407 U.S. 551 , 92 S.Ct. 2219 , 33 L.Ed.2d 131 (1972). The center strictly enforced a policy banning distribution of handbills and ejected individuals protesting the Vietnam War. Citing Logan Valley, the protestors sought an injunction against the handbill prohibition.

The Court held that the picketers had no First Amendment right to protest political activity on the center’s private property. Citing the dissenting opinion of Justice Black and Justice White in Logan Valley, the Court noted: Respondent’s argument ... misapprehends the scope of the invitation extended to the public. The invitation is to come to the Center to do business with the tenants.... There is no open-ended invitation to the public to use the Center for any and all purposes, however incompatible with the interests of both the stores and the shoppers whom they serve.

Id. at 407 U.S. 564 -65, 92 S.Ct. at 2227 , 33 L.Ed.2d at 140 . Four years after Lloyd, the Court overruled its Logan Valley decision that a union had a First Amendment