News

Ralphs Grocery v. UFCW

BY CSA STAFF

By John H. Douglas, [email protected]

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 protected].


More Web Exclusives/Guest Commentaries

keyboard_arrow_downCOMMENTS

Leave a Reply

J.Mancao says:
Dec-11-2013 08:47 am

This would surely cause great
This would surely cause great impact to the public. Looking forward for further discussion of this issue. Thumbs up :) http://www.dreamscapemarketingstudios.com http://www.dukembamarketingclub.com

J.Mancao says:
Dec-11-2013 08:47 am

This would surely cause great impact to the public. Looking forward for further discussion of this issue. Thumbs up :) http://www.dreamscapemarketingstudios.com http://www.dukembamarketingclub.com

duyentran607 says:
Apr-20-2013 10:55 pm

ChatRandom
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.ChatRandom

J.Walker says:
Apr-14-2013 12:06 pm

If the Court tries to dodge
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. superiorpapers.net

J.Walker says:
Apr-14-2013 12:06 pm

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. superiorpapers.net

P.Lopez says:
Apr-09-2013 05:54 pm

chatrandom
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. chatrandom

J.Lavoro says:
Apr-09-2013 03:49 pm

I am looking forward to
I am looking forward to reading new articles. Keep up the good work! Awesome blog. I enjoyed reading This is truly a great read for me. I have bookmarked it. ads dating

P.Lopez says:
Apr-09-2013 05:54 pm

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. chatrandom

J.Lavoro says:
Apr-09-2013 03:49 pm

I am looking forward to reading new articles. Keep up the good work! Awesome blog. I enjoyed reading This is truly a great read for me. I have bookmarked it. ads dating

D.Khatri says:
Mar-25-2013 07:22 pm

We will travel to South
We will travel to South Africa the next year, she loves adventures and this is the perfect opportunity for an written essay papers trip in the Savanna.

D.Khatri says:
Mar-25-2013 07:22 pm

We will travel to South Africa the next year, she loves adventures and this is the perfect opportunity for an written essay papers trip in the Savanna.

D.Khatri says:
Feb-26-2013 11:07 pm

The function the brand name
The function the brand name performs in driving customer variety and brand name energy, or the ability of buy youtube views the manufacturer to protected the shipping of expected foreseeable future earnings.

D.Khatri says:
Feb-26-2013 11:07 pm

The function the brand name performs in driving customer variety and brand name energy, or the ability of buy youtube views the manufacturer to protected the shipping of expected foreseeable future earnings.

L.Cury says:
Feb-18-2013 06:12 am

objectives
this is a very lengthy and hot top worthy of discussion. i think we should analyze all these carefully before giving our thoughts as it involves critical thinking. buy uk facebook fans

L.Cury says:
Feb-18-2013 06:12 am

this is a very lengthy and hot top worthy of discussion. i think we should analyze all these carefully before giving our thoughts as it involves critical thinking. buy uk facebook fans

M.Donovan says:
Jan-31-2013 11:32 am

I know what you mean, but we
I know what you mean, but we can not change the situation! scam

M.Donovan says:
Jan-31-2013 11:32 am

I know what you mean, but we can not change the situation! scam

M.Mirevski says:
Jan-29-2013 02:23 pm

It also comes in handy for
It also comes in handy for baking recipes like cornbread or smaller cakes.I know many recipes call for round slices.Easy chicken casserole http://yummycasseroles.com/easy-chicken-casserole/ In the United States, casserole cooking became very popular in the 1950's as a way to prepare a nutritious meal in one dish, and relieve women of kitchen drudgery.Refrigerate and let set for 1 hour (preferably overnight).

M.Mirevski says:
Jan-29-2013 02:23 pm

It also comes in handy for baking recipes like cornbread or smaller cakes.I know many recipes call for round slices.Easy chicken casserole http://yummycasseroles.com/easy-chicken-casserole/ In the United States, casserole cooking became very popular in the 1950's as a way to prepare a nutritious meal in one dish, and relieve women of kitchen drudgery.Refrigerate and let set for 1 hour (preferably overnight).

gild123 says:
Jan-19-2013 10:59 am

RE
The Oracle Database 11g Data Warehousing Implementation Specialist Certification identifies professionals that are skilled in implementing solutions based using the Oracle Database as a data warehouse. Oracle Certification exams, 1Z0-215, 1Z0-216, 1Z0-218, 1Z0-219

gild123 says:
Jan-19-2013 10:59 am

The Oracle Database 11g Data Warehousing Implementation Specialist Certification identifies professionals that are skilled in implementing solutions based using the Oracle Database as a data warehouse. Oracle Certification exams, 1Z0-215, 1Z0-216, 1Z0-218, 1Z0-219

Y.Hendriyanto says:
Dec-27-2012 04:40 pm

Commonwealth Life Perusahaan Asuransi Jiwa Terbaik Indonesia

Commonwealth Life Perusahaan Asuransi Jiwa Terbaik Indonesia

Y.Hendriyanto says:
Dec-27-2012 04:40 pm

Commonwealth Life Perusahaan Asuransi Jiwa Terbaik Indonesia

Polls

Consumer confidence is high. Is that reflected in your stores’ revenues?

View Results

Loading ... Loading ...
News

Supermarkets facing competition as grocery leader

BY CSA STAFF

FORT LEE, N.J. — Supermarkets are facing increased competition from dollar stores, according to a new survey from Perception Research Services International.

Supermarkets continue to be the primary channel where consumers purchase groceries but are continuing to face challenges from other retail formats. PRS’ survey results indicate that supermarkets are still where most shoppers (91%) have purchased groceries in the past three months (in line with last year’s 92%), and mass merchandisers are still their largest competitive threat (73% purchase groceries there – down from 76% in 2011). But this year’s data shows that dollar stores are gaining momentum as the percentage of shoppers who purchase groceries at Dollar Stores has increased, from 32% in 2011 to 35% in 2012. Alternatively, levels at drug and convenience are holding steady relative to last year (46%/47% and 23%/ 24% respectively).

While consumers purchase beverages and food generally at the same rate across mass merchandisers and dollar stores, cleaning supplies and personal care items are purchased more often at dollar stores. In addition to these items, shelf stable products at dollar stores are most competitive with mass merchandisers.

This survey also revealed that shoppers prefer supermarkets for selection, mass merchandisers and dollar stores for price and drug and convenience stores for price.

During 2012, more shoppers utilized sales/coupons (83%) and quantity/size control (70%) to save money than in 2011, the survey found. Most importantly, this year significantly more shoppers claimed to have switched brands to curb costs (61% vs, 49%).

"Our latest findings on grocery shopping indicate how very discerning today’s shoppers are – about their venue preferences as well as brand choices," said Jonathan Asher, EVP at PRS. "Retailers must understand their competitive strengths and capitalize on them, while also making the necessary adjustments to their offerings to seize opportunities for a larger slice of the pie as shoppers are more open to new shopping possibilities than they have been since the 1950’s with the advent of large, supermarket chains."

This online study was conducted among over 1,500 shoppers, aged 18 and over, during June, 2012.

keyboard_arrow_downCOMMENTS

Leave a Reply

No comments found

Polls

Consumer confidence is high. Is that reflected in your stores’ revenues?

View Results

Loading ... Loading ...
News

Walgreens taps former Wellpoint strategist as chief strategy officer

BY CSA STAFF

DEERFIELD, Ill. — Walgreens on Thursday announced the appointment of Brad Fluegel as SVP and chief strategy officer. Fluegel will be responsible for corporate strategy, business development, project management and the corporate consulting team while also working on venture capital efforts.

Fluegel joined Walgreens after previously serving as executive in residence at Health Evolution Partners. Before that he was EVP and chief strategy and external affairs officer of Wellpoint, a large health benefits company. While at Wellpoint, Fluegel was responsible for long-term strategic planning; government affairs; corporate communications, including public relations; corporate marketing; corporate development; international expansion; innovation and new business ventures.

Prior to Wellpoint, Fluegel was SVP national accounts and VP enterprise strategy at Aetna. In this role, he led the national accounts business and was responsible for developing and executing on strategies that expanded Aetna’s position as a leader in the large employer market. As head of enterprise strategy, Fluegel worked closely with Aetna’s executive committee and board of directors to advance the company’s medium- and long-term business strategies, and ran an internal consulting group responsible for driving the management process and operating efficiency across the enterprise.

Earlier, Fluegel was CEO for Reden & Anders (Ingenix Consulting) and Tillinghast-Towers Perrin, a clinical, actuarial and management consulting practice that served all sectors of the healthcare industry. While there, he negotiated the sale of Tillinghast Health to Ingenix. Fluegel also held several roles in strategy, planning and product development, and management at Harvard Community Health Plan, and organized and led audits, feasibility studies and related projects for healthcare clients at Arthur Andersen & Co.

Fluegel earned a master’s degree in public policy from Harvard University’s Kennedy School of Government and a bachelor of arts in business administration from the University of Washington. He also serves as a lecturer at the University of Pennsylvania’s Wharton School of Business.
Post a Comment

keyboard_arrow_downCOMMENTS

Leave a Reply

No comments found

Polls

Consumer confidence is high. Is that reflected in your stores’ revenues?

View Results

Loading ... Loading ...