California Supreme Court Rules Unions May Picket on Private Property

Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8, S185544 (December 27, 2012): The California Supreme Court recently held that although a supermarket’s privately owned entrance area is not a public forum where a union could assert free speech rights under the state Constitution, there is statutory protection for picketing activities under Code of Civil Procedure section 527.3 (the Moscone Act) and California Labor Code section 1138.1.

Ralph’s Grocery Company filed a complaint to enjoin United Food and Commercial Workers Union Local 8 from picketing on the privately owned walkway of its Foods Co. grocery store. The trial judge denied Ralph’s request for a preliminary injunction, holding that the company failed to satisfy section 1138.1’s requirements for obtaining an injunction against labor picketing. The California Court of Appeal reversed the trial judge’s decision. The court found that the privately owned walkway was not a public forum; therefore, and the company could regulate speech in this area. The appellate court also found that the Moscone Act and Labor Code Section 1138.1 violate the First and Fourteenth Amendments of the U.S. Constitution by providing greater protection to speech about labor disputes than speech on other subjects.

The California Supreme Court upheld the appellate court’s finding that the store’s privately owned walkway is not a public forum under the state Constitution. However, the justices held that a union’s activity in such a location is protected by the Moscone Act and Labor Code section 1138.1. These statutes, the court continued, do not “run afoul of the federal constitutional prohibition on content discrimination in speech regulations.” Thus, the Court of Appeal’s judgment was reversed and the case was sent back to the lower court for further proceedings.

According to Maria Anastas, shareholder in the San Francisco office of Ogletree Deakins, “While not surprising, this is not the outcome California employers were hoping to receive because the decision affirms the rights of unions to engage in labor activities on private property.  While Ralphs may appeal this decision to the U.S. Supreme Court, California employers should continue to recognize that unions may engage in lawful picketing and other activities on private property subject to very limited exceptions.”