United States: U.S. Supreme Court Declines To Review California Statutes Permitting Labor Picketing On Privately Owned Retail Sidewalks

On June 10, 2013, the U.S. Supreme Court declined to review the petition of Ralphs Grocery Co., in which the grocery store sought reversal of the California Supreme Court's ruling that labor unions may picket outside retail store doors on privately owned property. The decision lets stand two California statutes that permit peaceful union picketing on private sidewalks during labor disputes.

Ralphs unsuccessfully challenged the statutes as unconstitutional because they give preferential treatment to labor-related speech — but not non-labor speech — by granting labor access to private sidewalks in front of business entrances. The California Supreme Court justified the preferential treatment of labor by arguing that it was consistent with the state's interest in promoting collective bargaining and opining that labor is entitled to be at the entrance of a business because it is the most effective point to communicate grievances with the business and potential patrons.

In contrast, activities unrelated to labor disputes (e.g., petition soliciting, handbill distributing, soliciting donations) may continue to be excluded altogether — on sidewalks and elsewhere — by privately owned businesses whose premises lack a "public forum" (typically a plaza or courtyard area where the public is invited to stop and linger). Large businesses whose property consists of one or more "public forums" may regulate non-labor speech by relegating it to these "public forum" areas.

Case Background

Ralphs opened a large grocery store in Sacramento in 2007. In front of the store's only entrance was a sidewalk or apron that extended out approximately 15 feet to the asphalt of a driving lane that separates the apron from the parking lot. The entrance area (including the exit door) was approximately 31 feet wide.

On the day the store opened, between four to eight agents of a local union began picketing the store. For five days a week, eight hours per day, over the course of five months, the union members walked back and forth in front of store doors, carrying picket signs, and even encouraging people not to shop at the store because it was non-union.

After five months of enduring the protests, Ralphs attempted to enforce its rules for speech on its premises. The rules prohibited distribution of literature, physical contact with any person, and display of signs larger than two feet by three feet. The rules also prohibited speech within 20 feet of the store entrance and banned all speech during specified hours of the day and for a week before designated holidays.

After the Sacramento Police Department proved ineffective in convincing the union members to obey the store's rules, Ralphs went to court to get an injunction. After initially obtaining an injunction enjoining the union's activities, the injunction was ultimately overturned by the California Supreme Court. The appeals process culminated in the U.S. Supreme Court's June 10 denial of review of the California Supreme Court's decision.

What Rights Do Businesses Retain to Protect Their Property From Disruptive Speech and Related Activities?

California businesses must approach pickets and protests differently depending on whether the speech is union-related or non-union related.

Union Activity on Business Premises

If the activity relates to union activity (e.g., protesting working conditions, attempts to unionize the workforce), union members are generally permitted to utilize the sidewalks and adjacent "aprons" in front of store doors. However, the union member's conduct must be peaceful, and a store may seek injunctive relief if union members engage in any unlawful conduct, including breach the peace, disorderly conduct, or unlawfully blocking access or egress to the premises. In addition, a concurring opinion authored by California Chief Justice Cantil-Sakauye makes a compelling argument that lower courts may enjoin labor organizers from (1) entering a business; (2) threatening violence, intimidation, or interference with the owner's business by means other than persuasion of patrons to labor's position; (3) sending more protestors to the business than is necessary to convey their message; and (4) courts may limit the number or size of the signs displayed if the signs exceed those reasonably required to publicize the dispute and result in obscuring patrons' views of the owner's signs and displays.

Non-Union Activity on Business Premises

Businesses are under no obligation to cede the private property directly in front of an entrance to non-union activities (e.g., leaflet-passers and signature gatherers). A business may prohibit non-labor related speech altogether if it is of a modest size and its premises do not include an area that could be designated as a "public forum." A public forum is an area that is designed and furnished in a way that induces shoppers to congregate for entertainment, relaxation, or conversation (not merely to walk to or from a parking area, or from one store to another). If a business contains a public forum on its premises, it may regulate non-union expressive activities by requiring that they occur only in the area of the public forum, and the business may impose further reasonable regulations limiting the time, place, and manner of any expressive speech occurring in a public forum.

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.

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