California Statutes Shield Union Picketing On Private Walkway, State's Top Court Rules

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Ralphs Grocery Co. v. United Food & Commercial Workers Local 8, Cal., No. S185544, 12/27/12

Key Holding:Union lacks state constitutional right to picket private property, but state statutes protect union's speech on private walkway in front of business that is subject of labor dispute.

Key Takeaway:California statutes give unions greater right to picket private property of businesses involved in labor disputes than rights found under federal law.

By Kevin P. McGowan

A United Food and Commercial Workers local lacks a state constitutional right to picket on a private walkway in front of a Ralphs Grocery Co. store's customer entrance, but two California statutes protect peaceful union picketing and leafleting at that site to inform consumers of UFCW's dispute with the nonunion grocery store, a divided California Supreme Court ruled Dec. 27 (Ralphs Grocery Co. v. United Food & Commercial Workers Local 8, Cal., No. S185544, 12/27/12).

Partially affirming a California Court of Appeal decision, the state's top court said a private walkway fronting the grocery store's customer entrance in a Sacramento shopping center is not a public forum where the union would enjoy constitutional free speech rights.

“[T]o be a public forum under our state Constitution's liberty-of-speech provision, an area within a shopping center must be designed and furnished in a way that induces shoppers to congregate for purposes of entertainment, relaxation, or conversation, and not merely to walk to or from a parking area, or to walk from one store to another, or to view a store's merchandise and advertising displays,” Justice Joyce L. Kennard wrote in the unanimous portion of the court's opinion.

But that conclusion “does not dispose of this case,” the court said, explaining it must consider the extent to which California's Moscone Act and Labor Code Section 1138.1 protect labor speech on private land in front of a business that is the subject of a labor dispute.

No Violation of U.S. Constitution
By a 6-1 vote, the state supreme court reversed the appeals court's July 2010 decision that the two state statutes violate the U.S. Constitution because they erect a content-based rule that gives greater protection to labor-related speech on private property than to speech on other topics (138 DLR A-1, 7/20/10).

The appeals court had reversed a state superior court ruling that Ralphs was not entitled to a preliminary injunction against the UFCW picketing and leafleting because the retailer could not show it would suffer “substantial and irreparable injury” absent a court order, as required by Labor Code Section 1138.1 (186 DLR A-13, 9/25/08).

The First Amendment, as construed by the U.S. Supreme Court in Hudgens v. NLRB, 424 U.S. 507, 91 LRRM 2489 (1976), provides narrower protection to union picketing and leafleting outside a retail store than does California law, the state supreme court noted.

“[T]he free speech guarantee of the federal Constitution's First Amendment, as currently construed by the [U.S. Supreme Court], does not extend to speech activities on privately owned sidewalks in front of the entrances to stores, whether or not those stores are located in shopping centers and whether or not the speech pertains to a labor dispute,” the state supreme court said.

But the appeals court erred in ruling the Moscone Act and Section 1138.1 violate the First Amendment and 14th Amendment equal protection clause because the state laws permit content-based distinctions between speech, affording greater protection to labor speech, the state supreme court said.

The state appeals court erred in ruling the Moscone Act and Section 1138.1 violate the First Amendment and 14th Amendment equal protection clause because state laws permit content-based distinctions between speech, affording greater protection to labor speech, the California Supreme Court ruled.


The two U.S. Supreme Court decisions relied on by the appeals court involved local or state laws restricting speech in public forums, so they differ from this case, which involves speech on private property and state statutes that do not limit speech, the state supreme court said.

The California laws at issue are modeled on the federal Norris-LaGuardia Act, which similarly prohibits injunctions against lawful labor activity, including informational picketing at a business involved in a labor dispute, the state court said.

“Therefore, it is well settled that statutory law--state and federal--may single out labor-related speech for particular protection or regulation, in the context of a statutory system of economic regulation of labor relations,” the court said.

“For the reasons given above, we concluded that neither of the two statutes at issue here--the Moscone Act and section 1138.1--violates the federal Constitution's general prohibition on content-based speech regulation,” the court said.

Chief Justice Tani Cantil-Sakauye and Justice Goodwin Liu issued separate concurring opinions elaborating on why the Moscone Act and Section 1138.1 are consistent with the U.S. Constitution.

Dissent Sees Conflict With Federal Courts
In partial dissent, Justice Ming W. Chin said he agrees with the court that a privately owned walkway in front of a grocery store's sole customer entrance is not a “public forum” where unions have a state constitutional right to picket.

Chin split with the majority, however, on whether the Moscone Act and Labor Code Section 1138.1 can be squared with the First and 14th amendments. As interpreted by the court, the state laws protect labor-related speech on private property but exclude other types of speech, he said.

“To discriminate in this way based on the content of the speech, or who the speaker is, raises serious constitutional questions,” Chin wrote. “Today's opinion places California on a collision course with the federal courts.”

In particular, Chin cited Waremart Foods v. NLRB, 354 F.3d 870, 174 LRRM 2010 (D.C. Cir. 2004) (11 DLR AA-1, 1/20/04), in which the D.C. Circuit said construing the California statutes to permit labor-related speech, but not other speech, on private property likely would violate the U.S. Constitution, as interpreted in Carey v. Brown, 447 U.S. 455 (1980), and Police Department of Chicago v. Mosley, 408 U.S. 92 (1972).

“Although only the [U.S.] Supreme Court can definitively resolve the disagreement between the majority and the Waremart court, the Waremart court was not clearly wrong,” Chin wrote.

The dissent added the state supreme court majority's reading of the Moscone Act, which it interprets not to limit speech and as part of a permissible “statutory system of economic regulation of labor relations,” is based on “an incomplete record.” It is “not clear” the U.S. Supreme Court would “permit content-based discrimination on this ground,” Chin wrote.

“At the very least, before deciding this question, we should have before us the trial court's ruling incorporating the correct understanding that the property at issue is not a public forum,” Chin wrote. “We should know, and consider, exactly what economic or labor interests are actually at stake.”

For example, Chin said, under the National Labor Relations Act, labor organizers have no right to contact a business's employees on private property unless those employees are “otherwise inaccessible,” citing Lechmere Inc. v. NLRB, 502 U.S. 527, 139 LRRM 2225 (1992).

The record evidence in this case indicates a shopping center courtyard area was located next to the Ralphs store entrance and suggests the union pickets could move to that area, arguably a public forum, without diluting their message, the dissent said.

“Given the seemingly slight difference between picketing next to the store and at its entrance, it is far from clear to me that the [U.S. Supreme Court] would permit California to discriminate in this way between labor-related speech and all other speech,” Chin wrote.

The state supreme court should remand to the appeals court with directions that the state trial court reconsider its ruling in light of the supreme court's finding the walkway is not a public forum, the dissent said. “Then, and only then, should we decide the remaining statutory and constitutional questions based on a full and concrete record,” Chin wrote.

Miriam Vogel, Timothy Ryan, and Tritia Murata of Morrison & Foerster in Los Angeles represented Ralphs. Paul More, Richard McCracken, Steven Stemerman, Elizabeth Lawrence, Andrew Kahn, and Sarah Grossman-Swenson of Davis, Crowell & Bowe in San Francisco represented UFCW.

By Kevin P. McGowan

Text of the opinion is available at /uploadedfiles/BNA_V2/Images/From_BNA_V1/News/ralphs(1).pdf.

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