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California Court Strengthens Property Owners' Right to Exclude Labor Unions

  • July 28, 2010

California trespass laws allowing preferential treatment to labor unions picketing on private property are unconstitutional, the California Court of Appeal has ruled.  Ralphs Grocery Company v. United Food and Commercial Workers Union, Local 8, No. 34-2008-8682 (July 19, 2010).  State statutes set strict standards for obtaining injunctions against labor unions that engage in picketing on private property.  The Court found the statutes violated the First and Fourteenth Amendments of the United States Constitution by giving unions “preferential treatment to speech about labor disputes over speech about other issues.”  The Court held that property owners should be legally permitted to exclude a labor union from their premises just as they would any other trespasser.

Unions and Trespass Law in California

Generally, a person, including a union representative, is prohibited under state criminal trespass laws from entering another’s private property without the owner’s permission.  With rare exception, the same is true under federal labor law. California law, however, allows an exception for union representatives to engage in “lawful union activity” on private property.

Under California’s Moscone Act (Code of Civil Procedure section 527.3), peaceful picketing in connection with a labor dispute is “legal, and no court … has jurisdiction to issue any restraining order or preliminary or permanent injunction which … prohibits” such conduct.  Under California Labor Code section 1138.1, in order to obtain an injunction against labor activity, a property owner must establish that: (i) an injunction is necessary to prevent unlawful acts; (ii) irreparable injury will occur; (iii) harm to the property owner outweighs harm to the union; (iv) there is an inadequate remedy at law; and (v) public officers are unable or unwilling to provide adequate protection. 

As a practical matter, few private property owners are able to meet these standards.  Indeed, as the Court pointed out, obtaining an injunction under these statutes is “virtually impossible.”

The Facts

The company’s employees were represented by the United Food and Commercial Workers, Local 8.  The company owned a large warehouse grocery store in Sacramento, which was non-union.  After it refused to recognize the UFCW as the Sacramento employees’ bargaining representative, the union engaged in informational picketing at the company’s main facility by distributing flyers on company property outside the front door.

The company responded by filing a complaint in court, seeking a temporary restraining order. The judge held an evidentiary hearing on whether to issue a preliminary injunction. After hearing the evidence, the judge concluded the company failed to meet its burden of proof under the Moscone Act and Labor Code Section 1138.1 and denied relief.  The company appealed the decision.

Court of Appeal Decision

The appellate court overruled the lower court’s decision, finding the statutes relied upon were unconstitutional.  The Court stated the Moscone Act “afford[ed] preferential treatment to speech concerning labor disputes” and therefore, violated the First and Fourteenth Amendments of the United States Constitution.

Similarly, the Court found Labor Code section 1138.1 “suffer[ed] from the same constitutional defect as the Moscone Act” and had “requirements for obtaining an injunction against labor protesters that do not exist when the protest, or other form of speech, is not labor related.”

The Court ruled that labor protestors would be held to the same injunction standards applied to all other trespassers. 

What Employers Can Do

Whether the defending union will appeal Ralphs Grocery to the California Supreme Court is yet unknown.  In the meantime, California companies should consider the following in preparation for any on-site union demonstrations:   

  • Evaluate whether your private property is susceptible to on-site union activity.  Unionized employers in the midst of contract negotiations or a strike, employers (unionized or union free) who utilize subcontractors that employ unionized workers, and union-free employers that are normally targeted for corporate campaigns are the most likely targets of labor demonstrations on their property. 
  • Consider updating or creating a time, place and manner application if you are a property owner classified as a “public forum” under California law. Private property owners constituting a public forum, such as a shopping center, must permit free speech on their premises.  (This does not include the “apron” and entrances of the facility.) However, property owners may impose reasonable time, place and manner restrictions.  Those engaged in speech in a public forum who fail to follow these restrictions arguably constitute trespassers subject to the injunction process. 
  • Update and consistently apply your no-distribution/no-solicitation policy.  Federal labor law prohibits discriminatory enforcement of such a policy against a labor organization.
  • Contact legal counsel about updating or preparing standard labor injunction papers.  Onsite labor activity often comes unannounced and you will need to act quickly to obtain injunctive relief.
  • Train your managers and supervisors on how to handle onsite labor activity, including proper documentation of illegal actions, communication with local enforcement agencies and inquiries from the media.
  • If you rent or lease property, review your agreement with the property owner to determine whether you have the right to exclude trespassers.  If you do not, your exclusion of a trespasser may result in liability for false arrest or an unfair labor practice charge.

On-site labor activity usually involves various legal implications, and you are encouraged to contact legal counsel in such a situation.  Jackson Lewis attorneys are available to answer inquiries regarding this case and other workplace developments.

©2010 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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