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Peaceful Union Picketing Permitted on Private Property, California High Court Rules, Upholds Labor Anti-Injunction Statutes

  • January 11, 2013

In a highly watched case, the California Supreme Court has ruled that unions may continue to engage in “peaceful” picketing and other otherwise lawful union activities on an employer’s private property during a labor dispute and that two California anti-injunction statutes regarding labor activities do not run afoul of the First or Fourteenth Amendments of the U.S. Constitution. Ralphs Grocery Co. v. United Food & Commercial Workers Union, Local 8, No. S185544 (Cal. Dec. 27, 2012). The high court also held unanimously that a private sidewalk in front of a store’s customer entrance in a shopping center is not a public forum under the California Constitution’s liberty of speech provision, and therefore a law favoring union speech did not run afoul of constitutional nondiscrimination requirements for speech based on its content. On the other hand, a union, and presumably other groups, would have no state constitutional right to picket or engage in other expressive activities at that location.

Ralphs Grocery Company has not announced whether it will seek review of the constitutional issues before the U.S. Supreme Court. 


Ralphs Grocery Company owns and operates grocery stores, including one at College Square, a retail center in Sacramento. The College Square store has only one entrance for customers. A paved walkway about 15 feet wide extends from the building’s customer entrance to a driving lane that separates the walkway from the parking lot. When Ralphs opened the College Square store, members of the United Food and Commercial Workers Union, Local 8, which did not represent the store’s employees, began picketing the store. The picketing occurred on the walkway in front of the store’s entrance eight hours per day, five days per week. 

Ralphs informed the Union regarding its time, place and manner rules for expressive activity at its stores, but the Union refused to comply with them. The Sacramento police refused to remove the picketers without a court order. Ralphs sued the Union for trespass and sought a temporary restraining order and preliminary injunction. The trial court denied the request for a temporary restraining order and ordered a hearing on the preliminary injunction. The Union argued that the Moscone Act (Section 527.3 of the California Code of Civil Procedure), specifically allowing lawful labor picketing in any proper location, and Section 1138.1 of the California Labor Code, California’s anti-injunction law, barred the court from enjoining the picketing, and that Ralphs was not able to satisfy Section 1138.1’s requirements for an injunction.

The trial court ruled that Ralphs had failed to satisfy Section 1138.1’s requirements for a preliminary injunction. However, the court also ruled that the Moscone Act violated the U.S. Constitution’s First and Fourteenth Amendments because it favored labor speech over speech on other subjects. The Court of Appeal reversed and remanded, ordering the trial court to grant the preliminary injunction because the entrance area of the store did not constitute a public forum under the California Constitution. The appellate court similarly ruled that both the Moscone Act and Section 1138.1 violated the U.S. Constitution. The Union appealed.

Applicable Law

The California Constitution provides that “every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Cal. Const., art. I, § 2(a). The California Supreme Court has held that the state Constitution protects speech in privately owned shopping centers as a quasi-public forum because the general public is invited to congregate there.

The Moscone Act provides that certain labor activities are legal and cannot be enjoined, such as peaceful picketing and communicating information about any labor dispute where “any person may lawfully be.” Cal. Code Civ. Proc. § 527.3(b). The Moscone Act prohibits unlawful conduct, including breach of the peace, disorderly conduct, the unlawful blocking of access or egress to premises, or other similar activity. 

Section 1138.1 prohibits a court from issuing an injunction during a labor dispute unless certain requirements are met. These include, among other things, testimony by witnesses establishing that “unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained,” and a finding by the court that the police are “unable or unwilling to furnish adequate protection.” 

Entrance Area not a Public Forum, but Statutes are Constitutional

The California Supreme Court first addressed whether the entrance area to the College Park store constituted a public forum. In a shopping center, common areas constitute public forums because they “generally have seating and other amenities producing a congenial environment that encourages passing shoppers to stop and linger, to leisurely congregate for purposes of relaxation and conversation.” By contrast, areas immediately adjacent to the entrances of individual stores lack seating, serve to facilitate customers’ entrance to and exit from the stores, and advertise the stores’ goods and services. Accordingly, the Court found that those areas were not public forums under the California Constitution’s liberty of speech provision. Thus, the Union had no state constitutional right to picket there. Nevertheless, the Court determined that the Moscone Act and Section 1138.1 permitted peaceful picketing on the same walkway based on earlier California case law.

The Court next examined whether the Moscone Act and Section 1138.1 violated the U.S. Constitution. The Court concluded that the cases upon which the Court of Appeal relied in ruling that the statutes were unconstitutional did not apply because they involved laws that restricted speech in a public forum. Here, the Moscone Act and Section 1138.1 on their face did not restrict speech, and the speech occurred on private property.

The Court also noted that the U.S. Supreme Court has not required that speech restrictions be completely content neutral; rather, content-based regulation can be justified by legitimate concerns, unrelated to the speech’s message. The Court found that the Moscone Act’s restrictions on labor injunctions are “justified by the state’s interest in promoting collective bargaining to resolve labor disputes, the recognition that union picketing is a component of the collective bargaining process, and the understanding that the area outside the entrance of the targeted business often is ‘the most effective point of persuasion.’” Accordingly, the Court concluded that neither the Moscone Act nor Section 1138.1 violated the U.S. Constitution.

In a concurring opinion, Chief Justice Tani Gorre Cantil-Sakauye outlined certain possible limits on the protections granted to labor unions under the Moscone Act. Significantly, the Chief Justice pointed out that labor unions cannot engage in conduct that would interfere with the owner’s business, such as patrolling a small area with more signs than were reasonably required, using large signs to obscure patrons’ view of the owner’s signs and displays, or entering a business to communicate its message. The Chief Justice noted that business owners may establish rules and policies “aimed at curbing labor conduct that exceeds the rights recognized by the Moscone Act.” A labor union also must abide by those rules “to the extent required to prevent unlawful interference with the business, despite the fact that the limits imposed by the owner may reduce labor’s ability to communicate its message.” This guidance was directly challenged by Justice Goodwin Liu in another separate concurring opinion. Justice Liu stated that trial courts should avoid enmeshing themselves in such details and instead evaluate the conduct at issue against the strict terms of the statute itself.

In his dissent, Justice Ming W. Chin questioned whether the Moscone Act was applied in a constitutional manner, stating, “[a]llowing labor picketers to picket at the entrance to the grocery store … [and] … denying free speech rights to others on similar private property … means that labor picketers, but no one else, have the right to engage in speech activities on that property.” It was “far from clear,” he said, that the U.S. Supreme Court “would permit California to discriminate in this way between labor-related speech and all other speech.” Justice Chin cautioned that the decision placed California on a “collision course” with the federal courts. 

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The Court’s decision continues California jurisprudence favoring unions as a special interest group with the right to engage in what would be viewed elsewhere as an unlawful trespass. The Moscone Act and Section 1138.1 have been used successfully by unions in California to deny state court injunctive relief to employers even in egregious circumstances. For example, in one of the few published decision since the enactment of Section 1138.1, an appellate court denied an injunction based on a finding that the employer had not established that the police were unable or unwilling to maintain order. In that case, a union mob of 300 picketers screamed at customers attempting to enter a store, completely blocked a public street, charged the store entrance, but were pushed back by private security guards and sheriff’s deputies, and pulled a private security guard into the picket line and tried to grab his gun before sheriff’s deputies intervened. UFCW, Local 324 v. Superior Court of Los Angeles, (Gigante U.S.A., Inc.), 83 Cal.App.4th 566 (2000).

San Francisco Managing Partner Brad Kampas notes that in concluding the Moscone Act and Section 1138.1 are permissible state regulation of labor-management relations, the Court has placed itself at odds with the U.S. Supreme Court’s decision in Chamber of Commerce of U.S. v. Brown, 128 S. Ct. 2408 (2008), where the Court struck down another California statute as improper state meddling with federal labor laws. (Jackson Lewis LLP represented the U.S. Chamber in that case.) Partner Mark Ross emphasizes the California Court’s decision also raises Fifth Amendment constitutional “taking” issues as it mandates public use of an employer’s private property by unions for advocating consumer boycotts contrary to the employer’s economic interest.

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