Justices back Wal-Mart protest curb

The Arkansas Supreme Court unanimously sided with Wal-Mart in a 19-month legal challenge over attempts by union organizers to demonstrate inside the company's stores.

The court said it couldn't second-guess the circuit court ruling because union attorneys had failed to properly challenge the court's findings in their initial arguments.

In an opinion penned by Justice Jo Hart, the court upheld a Benton County Circuit Court's ruling that tossed an effort by attorneys representing a union and Wal-Mart employees to void an injunction that curbed coordinated "flash mobs" by group members.

As a part of a national effort to promote higher wages and unionization efforts, organizers from a group called Our Walmart, working with the United Food and Commercial Workers International Union, descended on several Wal-Mart properties in the northwest part of the state in 2011 and 2012.

Dressed in green Our Walmart T-shirts, members of the groups walked through the stores singing songs and, in one 2012 incident in Bentonville, gathered pots and pans and banged them together during their demonstration.

Wal-Mart attorneys argued that company officials had asked the groups not to trespass on property, but the groups entered anyway and didn't leave until being asked again, by the store staff.

In March 2013, the company filed a complaint of an unfair labor practice with the National Labor Relations Board that included the trespassing allegations. Two months later, it removed the trespass complaints from the federal complaint and instead sought relief from the Benton County Circuit Court.

According to the opinion, neither side objected to the Benton County Circuit Court's June 2013 temporary restraining order, which evolved into a preliminary injunction, until the union tried to lift the injunction when it filed a motion to dissolve the decision in October 2013.

Union advocates said that by filing a complaint with the National Labor Relations Board, Wal-Mart lost its right to an injunction in state court, arguing that the U.S. Congress has given the nation's labor board jurisdiction over union demonstration matters.

Wal-Mart attorneys argued that the union couldn't "recant" from the agreed-upon injunction and that it was "estopped," or barred, from trying to undo it.

They also argued that the state court action was not pre-empted by the National Labor Relations Board complaint, and pointed to cases in state courts in Florida, Maryland, California and Washington, where the cases were not pre-empted by the federal proceeding.

In a terse opinion, the Benton County Circuit Court sided with Wal-Mart, pointing out that the union had agreed to the injunction.

Before the Arkansas Supreme Court, union attorneys argued that the injunction should be set aside because the union demonstrations were peaceful and didn't cause any "irreparable" harm.

And while the union continued its argument that the labor board's complaint trumped the state courts as the proper venue, Hart's opinion pointed out that the union attorneys did not address the estoppel arguments made by Wal-Mart until a later filing.

The court's hand was forced, the opinion states.

"When a circuit court bases its decisions on more than one independent ground ... and the appellant challenges fewer than all those grounds on appeal we will affirm without addressing any of the grounds," Hart wrote in reference to a prior precedent. "We are mindful that the union does address judicial estoppel in its reply brief; however, we will not address arguments raised for the first time in a reply brief. Affirmed."

Business on 12/12/2014

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