In Ralphs Grocery Company UFCW, Local 8 No. C060413 (Cal. Ct. App. July 19, 2010), the California Court of Appeals struck down California Code of Civil Procedure, Section 527.3 (hereinafter "the Moscone Act") and Labor Code Section 1138.1. The court of appeals concluded that the two statutes violated the First and Fourteenth Amendment to the United States Constitution by giving greater protection to labor-related speech and by effectively requiring private employers in a non-public forum permit speech by uninvited groups with which they disagree.
Ralphs was a warehouse grocery store located in a retail development. The union requested Ralphs recognize the union as the representative of its bargaining unit employees. The talks failed and the union picketed on the apron and outside the entrance to the store, i.e. on Ralph's private property. The picketers carried signs and handed out flyers. Ralphs asked the picketers to move their activities off company property on a number of occasions. The union refused, and Ralphs filed suit in state court alleging trespass and asked for injunctive relief to prevent the union from picketing on store property—namely the apron around the single entrance to the store. The trial court denied the request, finding that Ralphs failed to show that the union's conduct resulted in severe and irreparable injury to Ralphs under Labor Code 1138.1 and that Ralph's failed to demonstrate that its restriction was a reasonable time place and manner restriction under Fashion Valley Mall v. NLRB (2007) 42 Cal.4th 850, 858. On appeal, the court reversed the trial court and found that the union committed a continuing trespass by refusing to comply with Ralphs reasonable requests that the union move its protests off Ralphs' property Ralphs was entitled to a preliminary injunction.
In reversing the trial court, the court of appeals rejected the trial court's implicit finding that the area outside the entrance to Ralphs (private property) was a public forum under Robins v Pruneyard Shopping Center (1979) 23 Cal.3d 899 (where the California Supreme Court held that the liberty of speech clause of the California Constitution protected speech in a privately owned shopping center subject to reasonable time, place, and manner restrictions because the owner of the shopping center created a public forum). The court distinguished the grocery store in Ralphs from the mall in Pruneyard noting that the apron and entrance area to Ralphs' lacked outdoor seating, restaurants or any other signs that the area was designed or presented to the public as a traditional public meeting area. Since the property was not a public forum, the court concluded that the speech protections of the U.S. and California Constitutions did not limit Ralphs' right to exclude the union from engaging in its picketing activity on Ralphs' property.
The court also found that the Moscone Act and Labor Code Section 1138.1 were unconstitutional in that the statutes precluded Ralphs from getting injunctive relief to protect its speech and property rights in a non-public forum. The court noted among other things that the California Supreme Court had previously interpreted the Moscone Act to specifically permits peaceful picketing on an employer's private property if it involves a labor dispute. The court further noted that Labor Code Section 1138.1 imposes greater restrictions on the court's ability to issue injunctions in cases involving speech pertaining to labor disputes than to speech in other contexts, namely it requires an unlawful act other than the trespass, irreparable harm to the property itself, and inability or unwillingness of public officers to provide protection.
The court found that because the Moscone Act and Labor Code Section 1138.1 favored speech related to labor disputes over other speech, a content based restriction, strict scrutiny applied, and the State needed to provide a compelling reason narrowly tailored for treating speech related to labor disputes differently that other speech. The court found that the State failed to articulate a compelling and narrowly tailored reason for the distinction. Consequently, Sections 527.3 and 1138.1 violated the First and Fourteenth Amendment to the United States Constitution.
The court's decision is encouraging for many business, including those in construction and retail industries, because it may allow the business to enjoin union activity on their property in those instances the property does not constitute a public forum. The issue remains for employers to ascertain whether they have created a public forum under California law.
If you have any questions concerning how Ralphs Grocery Company v UFCW, Local 8 may affect your business please do not hesitate to contact a member of the Labor Group, Bob Murphy at (619) 230-7418, or Rosemary Carson at (949) 255-6450.