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May Dept. Stores v. Teamsters Union Local 743

OCTOBER 2, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. L. SHELDON BROWN, Judge, presiding.


Venture Stores, Inc., a subsidiary of May Department Stores Company, operates a department store in the Village of Oak Lawn which opened for business in March 1975. In February of that year, the Teamsters Union Local No. 743 and its director of organization, Robert Simpson, sought to persuade Venture employees and prospective employees to join their union. Venture filed a complaint for a permanent injunction and a petition for a temporary restraining order to enjoin the union and its representatives from soliciting employees on Venture's premises. The complaint charged that the organizational campaign was carried on despite State and Village antitrespass laws, despite requests that it be stopped and despite the store's posted rule prohibiting solicitational activity for any purpose by either employees or nonemployees. A copy of the rule was attached to the complaint.

The defendants filed a motion to dismiss. Among the reasons advanced for the dismissal were that the National Labor Relations Act had preempted the State's jurisdiction; that the Illinois statutes prohibited restraining orders in cases growing out of disputes concerning conditions of employment; that a protest had been lodged with the regional office of the National Labor Relations Board and therefore the administrative rights of the plaintiffs had not been exhausted. A copy of the protest accompanied the motion as did an affidavit by Simpson stating that the organizing efforts were made outside the store and were limited to the hours before it opened and after it closed.

After hearing the testimony of one witness and the arguments of counsel, the court issued a ten-day temporary order restraining the defendants from soliciting the plaintiffs' employees on the premises owned by the plaintiffs but permitting it on adjacent public sidewalks. Ten days later the plaintiffs' motion for a preliminary injunction was granted. The terms of the injunction paralleled those of the restraining order.

The issue presented for review is whether a State court may enjoin under antitrespass laws, conduct arguably protected by the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-168 (1970).

The defendants concede that the solicitation took place on premises owned by the plaintiffs, but in the trial court they disputed this and the lone witness who testified was called by the plaintiffs to prove ownership. His testimony and the exhibits received in evidence established May's ownership of a block of property in Oak Lawn that is bounded on the north by 95th Street, on the south by 96th Street, on the east by Crawford Avenue and on the west by Keeler Avenue. Located on this tract is a large building which Venture shares with an Atlantic & Pacific food store. There is a sidewalk in front of both stores and a spacious parking lot surrounds the building on three sides. When this litigation began a gasoline station was under construction on the property; the station was owned by May and was to become a department of the Venture store. There is no sidewalk nor parking space on the 96th Street side of the tract, but sidewalks built by the plaintiffs and dedicated to public use border the other three sides. The sidewalk running along 95th Street is intersected by an entrance and exit sufficiently large to accommodate two cars going each way. There is an entrance and exit of unspecified size on the Crawford and Keeler sides as well.

The union representatives, none of whom were employed by the store, conducted their campaign at the entrance of the store before and after normal business hours. The purpose of the nonobstructive campaign was to acquaint the store's employees with the advantages of union membership and with their organizational and bargaining rights under the NLRA. Venture officials repeatedly asked the solicitors to leave but made no attempt to evict them. They refused to stop and this litigation followed.

Before the opening of court on the morning the plaintiffs' petition for the temporary restraining order was noticed for hearing, the defendants filed an unfair labor practice charge with the National Labor Relations Board (NLRB). The complaint asserted that the Venture store was impeding the union's communication with its employees, was enforcing an unlawfully broad no-solicitation rule, and that its supervisors and agents had interfered with the distribution of union literature and had instructed the store employees to throw the literature away.

Section 21-3 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 21-3) forbids anyone from remaining upon the land of another after receiving notice from the owner or occupant to depart. Under the ordinance of the Village of Oak Lawn a person commits an unlawful trespass to private property if he fails to leave after being requested to do so by the owner or occupant. (Ordinances, Village of Oak Lawn, 1973, §§ 14-43, 14-44(c).) On the other hand, labor representatives promoting union goals are given a special status by the NLRA. The Federal Government has put a protective arm around labor representatives and they have, in certain limited circumstances, significant privileges. The immediate question to be answered is whether under the facts of this case, the antitrespass laws and the company antisolicitation rule, which would in most instances give the property owner the right to eject unwanted persons, applied with the same force and effect to the union personnel.

Section 7 of the NLRA states:

"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * * *."

Section 8(a) of the Act provides:

"It shall be an unfair labor practice for an employer —

(1) to interfere with, restrain, or coerce employees in the exercise of the rights ...

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