By Timothy Ryan, Morrison & Foerster
California, like only a few other states, protects the right of free speech, reasonably exercised, in large regional shopping malls. In 1979, the California Supreme Court concluded that such shopping centers are the equivalent of “public forums,” available to the public to exercise their rights under the California Constitution. Robins v. Pruneyard, 23 Cal. 3d 899. On the other hand, the Court has also ruled in a number of cases that this free speech right does not exist at smaller shopping centers, strip malls and other retail locations. Retailers not located in large regional shopping malls can lawfully eject anyone from their property. Thus, a retailer in California can exclude or eject religious groups, abortion protestors, vendors, even the Girl Scouts from its property if it chooses to do so. But, until recently, retailers were stymied when labor unions came on their property, stood in front of entrances and exits, and passed out leaflets and picketed. Conduct, which any other group could be prevented from doing, was unstoppable under California law when the group was a labor union.
Two California statutes prevented a court from intervening when a labor union trespassed on retail property, except in the most dire circumstances. The Moscone Act, passed in 1975, declares that “peaceful patrolling or picketing” relating to a labor dispute is legal and a court has no jurisdiction to issue an injunction preventing the conduct. California Labor Code Section 1138.1 imposes strict rules on courts issuing injunctions in trespass cases involving unions, including the obligation of a retailer to prove that the police were either “unable or unwilling to furnish adequate protection.” As a result of these two laws, labor unions in California had rights that no other group possessed -- the right to go on private property and engage in activities in furtherance of their cause.
Ralphs Grocery Company operates a large warehouse grocery store in a retail development called “College Square” in Sacramento, Calif. Although many of the Ralphs stores are unionized, when Ralphs opened its College Square store in July 2007, it did so as a non-union operation. The United Food and Commercial Workers Union immediately began picketing the store, trying to encourage people not to shop there because the store operated non-union. The pickets conducted their activities five days a week, eight hours a day, in front of the store, carrying picket signs and handing out leaflets encouraging customers to shop elsewhere. Ralphs called the police on several occasions, but the police repeatedly took the position that the unions had a right to be on the property and refused to remove them. In response, Ralphs filed a complaint in the Sacramento Superior Court claiming the unions were engaged in trespass and asking the court for an injunction to remove them from the property. When the Court refused to issue an injunction, Ralphs appealed. In a decision issued July 19, 2010, the Court of Appeal issued a stunning decision, reversing the trial court’s denial of an injunction and ordering it to issue injunctive relief to Ralphs. Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8, 2010 WL 2804355 (Cal. Ct. App. 3d Dist. July 19, 2010). In doing so, it overturned both The Moscone Act and Labor Code Section 1138.1, finding both to be unconstitutional.
In reaching this Decision, the Court first concluded that College Square was not a large regional shopping mall of the sort involved in the Pruneyard case and therefore College Square, including the area in front of the Ralphs store, was not a public forum. The Court then turned its attention to the question of whether or not, as private property, Ralphs should be able to eject the union.
The Court first considered the Moscone Act. Relying on two U.S. Supreme Court cases that held treating a labor dispute differently from other types of speech was constitutionally impermissible, the Court concluded that the Moscone Act “favors speech related to labor disputes over speech related to other matters -- it forces Ralphs to provide a forum for speech based on its content.” (Id. at p. 21) Therefore, said the Court, to apply the Moscone Act to Ralphs’ request for injunctive relief would violate both the First and the Fourteenth Amendments to the United States Constitution.
Next, in considering Labor Code Section 1138.1, the Court of Appeal said that it had the same “constitutional defect” as the Moscone Act -- “It favors speech relating to labor disputes over speech relating to other matters.” (Id., at p. 28) In analyzing the statute, the Court noted that the requirements for injunctive relief raised difficult obstacles that do not apply to requests for injunctions against other trespassers who are not engaged in a labor dispute. The Court noted the statute makes it “virtually impossible for a property owner to obtain injunctive relief” in labor disputes and was thus unconstitutional. (Id. at p. 31)
The Court of Appeal instructed the trial court to issue the injunction sought by Ralphs and to pay Ralphs costs.
The union is expected to appeal this decision to the California Supreme Court.
Meanwhile, in Fresno, Calif., another Ralphs case is pending, involving the same union under the same circumstances. As in Sacramento, when Ralphs went to court to get an injunction, the court refused to issue one, basing its decision on the Moscone Act and Labor Code Section 1138.1. That case is now on appeal in a different district of the Court of Appeal. The parties are waiting for oral argument in that case.
Timothy Ryan is a partner in the law firm of Morrison & Foerster in its Los Angeles office. He specializes in the representation of management in labor and employment litigation. Ryan represented Ralphs in the trial court and on appeal in this case.