By John H. Douglas, firstname.lastname@example.org
On Oct. 3, 2012, the California Supreme Court held oral argument in Ralphs Grocery Company v. United Food and Commercial Workers’ Union Local 8. A decision – which under Court rules should generally issue within 90 days – may well decide the fate of the so-called “Moscone Act” - a law passed by the California legislature in 1975 that limits the jurisdiction of state courts to issue injunctions in cases involving “labor disputes.”
Though the legal issues in the case are rather complex, at its core, the case presents the following issue – is it constitutional for a legislature to discriminate among different subjects of speech by law?
The “Moscone Act” divests state courts of jurisdiction to issue injunctions forbidding “any person or persons, whether singly or in concert,” from “giving publicity to, and obtaining or communicating information regarding the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, or by any other method not involving fraud, violence or breach of the peace.”
Police Dept. of City of Chicago v. Mosley – a unanimous 1972 United States Supreme Court decision authored by Thurgood Marshall – had invalidated as unconstitutional a Chicago ordinance that prohibited picketing or demonstrations within 150 ft. of any primary or secondary school building unless what was involved was “peaceful picketing of any school involved in a labor dispute.” In deciding to invalidate the ordinance, Justice Marshall reasoned: “The central problem with Chicago’s ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school’s labor-management dispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
Relying on Mosley, in 2004, the Court just below the United States Supreme Court – the United States Court of Appeals for the District of Columbia Circuit – found in a case called Waremart Foods v. NLRB that the Moscone Act impermissibly favored labor-related speech based on its content and thus violated of the First and Fourteenth Amendments to the U.S. Constitution. Though undoubtedly a decision of a highly influential court with jurisdiction in certain administrative appeals involving federal agencies such as the National Labor Relations Board, the Court of the Appeal of the District Columbia does not have general jurisdiction in California. As such, its observations about the unconstitutionality of the Moscone Act were (and are) not binding on California state – or even federal courts for that matter. Nonetheless, since Waremart, it is safe to say that the Moscone Act has basically been hanging by a legal “thread.”
Putting on a brave face, unions in California have continued to point to the various exemptions and exceptions for “labor disputes” within otherwise generally applicable trespass (and other) statutes when local police are called to scenes of picketing or protest on private property. Their implicit threat has been that if arrested, the police will be sued for false arrest and civil rights violations. This threat alone has often been enough to dissuade (particularly more union-friendly) California District Attorneys and police from proceeding with arrests and/or prosecutions except in the most egregious of circumstances.
Fast forward to July 25, 2007, and the opening of a new – and non-union – Foods Co. store in a Sacramento shopping area called “College Square.” In response, eight to ten agents of UFCW Local 8 began a five-day-a-week picket at the front entrance of the food retailer – the entire time on the retailer’s property – urging a boycott of the business due to its non-union status.
At first Foods Co. tried to mollify the union – and asked that it simply respect certain rules that it was willing to apply to anyone engaged in “free speech” on its premises – (even though the California Supreme Court’s “Pruneyard” doctrine – which creates a general free speech right in sufficiently large shopping malls that are the modern-day equivalent of public squares – almost certainly did not even apply to the comparatively modest College Square facility.) The union, however, declined to adhere to such rules.
Eventually, on April 15, 2008 – four years after the Waremart decision – Ralphs sought an injunction in Sacramento Superior Court – arguing, among other things, that the Moscone Act was unconstitutional and thus, should not prevent the Court from issuing an injunction. Although the trial Court agreed with Ralphs that the Moscone Act was unconstitutional, the trial court declined to find that a separate statute (Labor Code section 1138.1 – which sets up special procedural requirements for injunction hearings involving labor disputes) was – and then found that Ralphs had not satisfied its requirements. As such, it denied Ralphs the injunction it sought.
Ralphs appealed. Some two years later, on July 19, 2010, the California Court of Appeal issued a decision agreeing with the trial court that the Moscone Act was unconstitutional, but also finding (unlike the trial court) that Labor Code section 1138.1 was as well. In addition, after finding that College Square was not a “public forum” within the meaning of Pruneyard, the Court of Appeal reversed and remanded the matter to the trial court with instructions to grant the requested injunction.
This time, the union appealed – to the California Supreme Court.
The case is now fully briefed and argued. If it does not figure out a creative way to avoid the question – which it may try to do – in the very near future, the California Supreme Court should decide, like the California Court of Appeal – whether the Moscone Act and California Labor Code section 1138.1 are constitutional.
If the California Supreme Court reaches the same conclusion as the California Court of Appeal and the United States Court of Appeal for the District of Columbia Circuit on the issue – one thing is certain. Life will become much easier for freestanding or strip mall retailers that seek for one reason or another to keep labor protestors or pickets away from their front doors and out of their leased or own parking lots in California. If the Court tries to dodge the question – or finds in favor of the union – what will happen is hard to predict. Ralphs might very well try to appeal to the United States Supreme Court in such a circumstance.
In any event, the “balance of power” between unions and employers in California will likely be significantly affected one way or another depending on the outcome of the Ralphs case. Developments in the case bear close attention.
John H. Douglas is a management side labor lawyer practicing in the San Francisco office of Foley & Lardner LLP, a 900-lawyer law firm founded in Wisconsin in 1842. He can be reached at email@example.com.