United States: California High Court Issues Important Ruling On Labor Speech Rights Of Unions On Private Property

Linda Auerbach Allderdice is a Partner in the firm's Los Angeles office

Ralphs Grocery Could Lead to a Review of the Issue by the U.S. Supreme Court

The California Supreme Court recently issued its decision in Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8. Although the ruling resolved a long-standing dispute between a supermarket owner and the labor union that picketed in front of the only customer entrance to the store, it has wide-ranging implications for retail store owners and other commercial property interests.

The decision confirms just how difficult it is under California law to prevent peaceful union picketing or handbilling over a labor dispute on private property. That said, Ralphs Grocery also suggests that commercial property owners may be able to limit expressive activity as long as the site where the activity takes place does not otherwise meet the test of a "public forum" and the expressive activity does not deal with labor union disputes or economic action by labor unions.

Given the court's heightened protection of "labor speech," this California case may be ripe for review by the U.S. Supreme Court.

Ralphs' Dispute with the Union

Ralphs Grocery Company owned and operated a warehouse-style grocery store in Sacramento, California under the name Foods Co.; it was located in a retail development with restaurants and other stores. Customers entered Foods Co. only through one entrance that was accessible from a 15-foot-wide paved walkway extending outward from the store. The walkway ended at a driving lane that bordered a public parking lot used by customers of Foods Co. and the other retail stores.

In 2007, when Foods Co. first opened for business, union agents from the United Food and Commercial Workers Union, Local 8 picketed the store because of its labor dispute with Foods Co. Although picketing was conducted by four to eight agents five days a week, eight hours a day, customers could freely access the store. In January 2008, Ralphs informed the union about its regulations governing speech activities at its Foods Co. stores. The regulations excluded such activities within 20 feet of the store's entrance, restricted it to certain times and days, and barred union distribution of literature or signs larger than a certain size. The union ignored the regulations and continued to picket within the restricted area. Ralphs asked the Sacramento Police Department to remove the agents but the police declined to intervene without a court order.

Ralphs Files for Injunctive Relief

In April 2008, Ralphs filed a complaint in the Sacramento Superior Court alleging that the union trespassed on its private property by using the 15-foot walkway as a forum for expressive activity without complying with the store's speech regulations. Ralphs sought injunctive relief to stop the union's conduct. The union responded with a two-prong argument. First, that California's Moscone Act, Code of Civil Procedure section 527.3, permitted peaceful picketing on a privately-owned walkway in front of a retail store during a labor dispute. Second, that Ralphs had failed to meet the strict procedural requirements for injunctions against union picketing under Labor Code section 1138.1.

The trial court ruled that California's Moscone Act violated the First and Fourteenth Amendments to the U.S. Constitution because the Act favored union speech over other types of speech. After an evidentiary hearing, however, the trial court declined to issue an injunction. It found that Ralphs had failed to meet the stringent requirements of Labor Code section 1138.1, which the trial court applied under California precedent, and that Ralphs had failed to establish that its speech regulations were "reasonable time, place and manner restriction" under guidelines that had traditionally been applied to public forum shopping centers.

Reversing the trial court, the California Court of Appeals directed the lower court to issue a preliminary injunction. First, the court determined that Ralphs' speech regulations were appropriate because the "entrance area and apron" of Foods Co. did not meet the test for a "public forum" under the California Constitution. Accordingly, Ralphs could not only limit what speech was allowed in front of its store, but also could "exclude anyone desiring to engage in prohibited speech." Next, the Court of Appeals decided that because the Moscone Act and Section 1138.1 provided greater protections to "labor speech" than other speech, both violated the First and Fourteenth Amendments to the U.S. Constitution. The California Supreme Court then granted the union's petition for review.

The California Supreme Court Ruling

1. The "Public Forum" Test is Upheld, but Allows Unions to Picket and Handbill on Private Property under the California Statutes

In the 1979 landmark case Robins v. Pruneyard Shopping Center ("Pruneyard"), the California Supreme Court ruled that portions of a privately owned shopping center could constitute a "public forum" in which individuals were entitled to engages in speech and other expressive activity. Because of the "public character of the shopping center," allowing speech rights under reasonable regulations would not significantly interfere with the mall owner's normal enjoyment of its private property rights. Pruneyard distinguished common areas in a shopping center from the areas outside individual store's customer entrances and exits, finding that the latter were not the same as a public forum. Ralphs Grocery continued this doctrine, finding that in order for an area within a shopping center to constitute a public forum, it "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."

The favorable ruling upholding Pruneyard standards for "public forum" speech protections, finding that Foods Co. did not meet that test, did not end the court's analysis, as it found that the Union's conduct was still protected by California's statutes.

2. The Moscone Act and Section 1138.1 Protect Union Speech on Private Property and Withstand Scrutiny under the Constitution

The Moscone Act, which was patterned after federal labor law, was passed in 1975 in order to promote collective bargaining and other peaceful concerted activities, and to prevent courts from issuing injunctive relief against labor organizations for communicating information about a labor dispute, engaging in peaceful picking or assembling peaceably to further such goals. Section 1138.1, passed in 1999, established stringent requirements for the issuance of an injunction against labor picketing handbilling or other expressive activity by a union. A property owner seeking an injunction against labor activity must prove a threat of unlawful acts by the union; substantial and irreparable injury to its property; that the property owner will suffer greater damage if the injunction is not granted than the union will suffer if it is; that no adequate remedy at law exists; and, finally, that law enforcement is "unable or unwilling to furnish" adequate protection. The courts strictly enforce these requirements, making it virtually impossible to obtain injunctive relief to stop labor activity.

In its Ralphs Grocery ruling,the California Supreme Court construed the Moscone Act and Section 1138.1 as applying only to labor disputes and concluded that they shielded peaceful union picketing from judicial interference in labor disputes. It further ruled that, because the laws did not restrict speech by entities other than unions and the union's speech did not occur in a public forum, the laws did not violate federal constitutional protections for free speech.

The court then focused on whether the content-based distinction between labor-related speech and other speech was "justified" by "legitimate concerns that are unrelated to any 'disagreement with the message' conveyed by the speech." Here, the court said the distinction made by the state statutes were so justified. The court found that

The state law under which employees and labor unions are entitled to picket on the privately owned area outside the entrance to a shopping center supermarket is justified by the state's interest in promoting collective bargaining to resolve labor disputes, the recognition that the 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."

The court further found that the Moscone Act and Section 1138.1 were justified as laws protecting labor-related speech in the context of a statutory system of economic regulation of labor relations. As such, they did not violate the federal Constitution by singling out labor-related speech for "particular protection or regulation." Accordingly, the court reversed the Appellate Court and held that the state laws

afford both substantive and procedural protections to peaceful union picketing on a private sidewalk outside a targeted retail store during a labor dispute, and such union picketing may not be enjoined on the ground that it constitutes a trespass. The Moscone Act and section 1138.1 do not violate the federal Constitution's free speech or equal protection guarantees on the ground that they give speech regarding a lab or dispute greater protection than speech on other subjects.

A Glimpse of Future Battles

The majority opinion by Justice Kennard was joined by five other Justices, while Chief Justice Cantil-Sakauye and Justice Liu issued separate concurring opinions. In her concurring opinion, the Chief Justice expressly noted that "labor activity with an objective other than communicating labor's grievances and persuading listeners exceeds the right to engage in peaceful picketing within the meaning of the Moscone Act." But she expanded her definition of labor activities that should lose protection beyond acts of violence or intimidation, noting that "[s]peech or conduct directed toward interference with the owner's business by means other than persuasion of patrons to labor's position also falls outside the rights enunciated in the law."

For example, the Chief Justice would allow labor to conduct its otherwise statutorily protected activities "at the entrance of a business but not to enter a business to do so" and that labor could not use outsized signs or excessive noise to interfere with a business at the entrance. The Chief Justice recognized that owners had the right to articulate "rules and policies" in order to balance the protections accorded to labor under the state laws, and that law enforcement may be the first line of protection in carrying out these new rules.

Justice Liu was of the opinion that the Moscone Act and section 1138.1 were not as much speech regulations as they were economic regulations, and sought to curb judicial practices that unfairly limited labor speech as opposed to favoring labor speech over other types of expressive conduct.

Finally, Justice Chin issued a concurring and dissenting opinion, agreeing that the privately owned walkway was not a "public forum" and disagreeing with the majority's view that labor speech could be given greater rights or protection than other speech. He noted that the majority opinion set up the potential situation whereby labor picketers would have the right to picket on private property at a store entrance while other persons engaged in speech activities that did not fall within the protection of the Moscone Act could not. Justice Chin warned that "Today's opinion places California on a collision course with federal courts," noting that only the U.S. Supreme Court can definitively resolve the disagreement" between the California decision and clear federal precedent finding content-based speech restrictions to violate the federal Constitution.

Implications for Private Owners of Commercial Property

First, given the strong diverging opinions, and the invitation by dissenting Justice Chin to seek Supreme Court review, it is entirely possible that the decision will be reviewed by the nation's highest court. At a minimum, future litigation will shape the contours of the labor speech rights of unions on private property. Unions will undoubtedly press the envelope in asserting rights to picket and handbill on private property.

Second, not only may there be a direct challenge to the decision, there may also be challenges under federal labor laws. This is especially true in light of the numerous references to federal labor laws as providing the standards for assessing the conduct. It does not appear that a direct challenge to the court's jurisdiction was made by way of an argument that the National Labor Relations Board had primary jurisdiction over the dispute, or that National Labor Relations Act would preempt state regulations. For example, the NLRB recently ruled in favor of unions unfurling large banners outside entrances or parading around with inflatable rafts, although both practices were called into question by the California Chief Justice's concurring opinion.

Finally, it is clear those issuing the majority and concurring opinions in Ralphs Grocery limited their rulings to speech that involves collective bargaining rights and labor disputes. The decision steered clear of any other form of expressive speech activity. In fact, dissenting Justice Chin noted that "labor picketers, but no one else, have the right to engage in speech activities on that property." Accordingly — at least for now — private commercial property owners apparently can restrict non-labor union speech on sidewalks adjacent to their facilities and on any other property that is not "designed and furnished in a way that induces shoppers to congregate for purposes of entertainment, relaxation, or conversation," but rather is merely intended to allow shoppers "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."

To ensure compliance with Treasury Regulations (31 CFR Part 10, §10.35), we inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

www.hklaw.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions