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May Dept. Stores v. Teamsters Local 743





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. L. Sheldon Brown, Judge, presiding.


This appeal involves a dispute between non-employee union organizers and the owners of a department store. The principal issue is whether the filing of an unfair labor practice charge with the National Labor Relations Board (NLRB) by the union preempted the authority of the circuit court of Cook County to issue an injunction restraining the union from soliciting employees of the owners of the department store on the plaintiffs' property. We hold that it did not.

Plaintiffs, May Department Stores Company and Venture Stores, Inc. (hereinafter Venture), operate a department store in the village of Oak Lawn. In early February, 1975, the defendants, Teamsters Union Local No. 743 and Robert Simpson, the director of organization for Local 743, embarked on a campaign to organize the workers at the Venture store. The organizational campaign consisted of solicitation of employees and distribution of union literature on the company-owned parking lot.

Venture, on February 13, 1975, filed a verified complaint for a permanent injunction and a petition for a temporary restraining order alleging that the union's activities were in violation of the Illinois criminal trespass statute (Ill. Rev. Stat. 1973, ch. 38, par. 21-3) and an ordinance of the village of Oak Lawn, and that the union was unlawfully trespassing upon Venture's private property. Venture further alleged that the union's activity was in violation of a nonsolicitation rule in force at the Venture store and that the union organizers refused to cease soliciting employees on company property after they had been notified of the nonsolicitation rule. No answer was filed to dispute the factual allegations of the complaint.

The union filed a motion to dismiss contending inter alia that the jurisdiction of the State courts had been preempted by the National Labor Relations Act (hereinafter NLRA) (29 U.S.C. sec. 151 et seq. (1970)).

The motion to dismiss was filed February 13, 1975. On that same day the union filed an unfair labor practice charge with the NLRB. The NLRB charge asserted that Venture had violated section 7 of the NLRA by enforcing an unlawfully broad nonsolicitation rule and by interfering with the union's organizational campaign. The filing of the complaint for injunction in the circuit court was also listed as an unfair labor practice. The NLRB charge did not, however, allege that the union had no other means of communicating with Venture employees than by going upon company property.

The circuit court issued a temporary restraining order and 10 days later allowed Venture's motion for a preliminary injunction. Both the temporary restraining order and the preliminary injunction restrained the union from soliciting employees on premises owned by Venture but permitted such solicitation on the adjacent public sidewalks. These sidewalks border the store on three sides but are separated from the building by a large parking lot. The union filed a notice of an interlocutory appeal under Rule 307(a)(1) (58 Ill.2d R. 307(a)(1)). On October 2, 1975, the appellate court reversed the circuit court, holding that the dispute was beyond the jurisdiction of State courts. (32 Ill. App.3d 916.) We granted leave to appeal.

While the case was pending in the appellate court the acting regional director of the NLRB refused to issue a complaint against the owners of the department store concerning the union's charge that they had been guilty of unfair labor practices. The union was informed of this decision in a letter dated August 6, 1975 (prior to the judgment of the appellate court). After the judgment of the appellate court, the union's unfair labor practice charges were finally disposed of on October 14, 1975, when the director of the NLRB office of appeals affirmed the regional director's decision. The grounds for this decision, as stated in the letter of October 14, were that: "The evidence is insufficient to show that there were no adequate alternate means by which the Union could identify and contact Venture store employees particularly in view of the fact that the Union made no attempt to utilize such alternatives as recruiting an employee sympathizer to help organize, recording license numbers of cars entering the lot from the public road and placing banners on the public street adjacent to the Employer's parking lot or other means."

The appellate court denied Venture's motion to permit filing of the letter of determination from the NLRB regional director. A copy of that letter, and the subsequent letter of determination from the NLRB office of appeals, have been appended to plaintiffs' brief before this court and are the subject of a motion to strike filed by the union. We consider the contents of these letters to be matters which may be judicially noticed. In an instance such as this no sound reason exists to deny judicial notice of public documents which are included in the records of other courts and administrative tribunals. (McCormick, Evidence sec. 330, at 766 (2d ed. 1972).) Such documents fall within the category of readily verifiable facts which are capable of "instant and unquestionable demonstration." (9 Wigmore, Evidence sec. 2571, at 548 (3d ed. 1940).) As counsel for both parties at oral argument have agreed to the accuracy of the NLRB letters of determination, we deny the union's motion to strike and we take judicial notice of the letters and their contents.

The primary issue to be considered is whether the circuit court was without jurisdiction to enter the temporary injunction prohibiting the ongoing trespass by the union. It is clear that when an activity is protected by section 7 of the NLRA or prohibited by section 8 of that act, State jurisdiction is preempted. (E.g., Weber v. Anheuser-Busch, Inc. (1955), 348 U.S. 468, 99 L.Ed. 546, 75 S.Ct. 480.) It is also a long-standing rule that "When an activity is arguably subject to section 7 or section 8 of the Act, the States * * * must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." (San Diego Building Trades Council, Local 2020 v. Garmon (1959), 359 U.S. 236, 245, 3 L.Ed.2d 775, 783, 79 S.Ct. 773, 780.

The Garmon rule is not, however, a doctrine without exceptions. In Garmon itself the court noted that State jurisdiction was not preempted "where the activity regulated was a merely peripheral concern of the Labor Management Relations Act," or "where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." (359 U.S. 236, 243-44, 3 L.Ed.2d 775, 782, 79 S.Ct. 773, 779.) Venture contends that application of a State's law of trespass falls within each of these exceptions to the preemption doctrine. We agree.

Though the United States Supreme Court has never decided the precise issue before this court (see Amalgamated Meat Cutters, Local 427 v. Fairlawn Meats, Inc. (1957), 353 U.S. 20, 24, 1 L.Ed.2d 613, 616, 77 S.Ct. 604, 606), the question was discussed in the concurring opinion of Mr. Chief Justice Burger in Taggart v. Weinacker's, Inc. (1970), 397 U.S. 223, 227-28, 25 L.Ed.2d 240, 243-44, 90 S.Ct. 876, 878-79 (Burger, C.J., concurring), where a writ of certiorari was dismissed as improvidently granted.

"In my view any contention that the States are pre-empted in these circumstances is without merit. The protection of private property, whether a home, factory, or store, through trespass laws is historically a concern of state law. Congress has never undertaken to alter this allocation of power, and has provided no remedy to an employer within the National Labor Relations Act (NLRA) to prevent an illegal trespass on his premises. Rather, it has acted against the backdrop of the general application of state trespass laws to provide certain protections to employees through section 7 of the NLRA [citation]. A holding that the States were precluded from acting would remove the backdrop of state law that ...

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