Metropolitan News-Enterprise


Thursday, September 30, 2010


Page 3


S.C. to Decide Whether Laws Protecting Union Picketing Are Constitutional




The California Supreme Court has agreed to decide the constitutionality of two state laws that largely prohibit courts from enjoining union picketing during a labor dispute.

The justices, at their weekly conference in San Francisco, voted unanimously to grant review in Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8. The Third District Court of Appeal ruled July 19 that Code of Civil Procedure Sec. 527.3, also known as the Moscone Act, and Labor Code Sec. 1138.1 unconstitutionally interfere with the rights of property owners.

The Moscone Act says that peaceful picketing and similar activities, in connection with a labor dispute, “shall be legal, and no court nor any judge nor judges thereof, shall have jurisdiction to issue any restraining order or preliminary or permanent injunction which, in specific or general terms, prohibits any person or persons, whether singly or in concert, from” engaging in such conduct.

Sec. 1138.1 provides that no injunction shall be granted in connection with a labor dispute unless the court finds, after an evidentiary hearing with live witnesses, that an injunction is necessary to prevent “unlawful acts” that “have been threatened and will be committed” or that “have been committed and will be continued” absent an injunction; that irreparable injury will occur; that the harm to the plaintiffs if an injunction is not issued outweighs the harm to the defendants if it is; that the plaintiff lacks an adequate remedy at law; and that public officers are unwilling or unable to “furnish adequate protection” to the plaintiffs.

The justices ordered that an injunction be issued to block the United Food and Commercial Workers Union Local 8 from picketing a Sacramento warehouse-type Foods Co grocery store.

Foods Co is a subsidiary of the Ralphs chain, but is, unlike Ralphs, non-union. Local 8 has been trying to organize workers at Foods Co stores in Sacramento and Fresno, but is at an impasse with the grocer, and has organized an informational picketing campaign urging customers to shop elsewhere.

The Sacramento store, opened three years ago, is located in the College Square retail development. In its complaint against the union, filed in April 2008, the company contended that the picketing in front of the 31-foot-wide store entrance amounted to trespass.

The union responded that the proposed injunction would violate the two statutes.

Sacramento Superior Court Judge Loren McMaster ruled that the Moscone Act is unconstitutional because it constitutes “content-based discrimination.” The judge questioned the constitutionality of Sec. 1138.1 as well, but said he was bound by an earlier Court of Appeal decision that upheld it.

Justice George Nicholson, writing for the Court of Appeal, said both statutes are unconstitutional.

Both, he said, “favor[ ] speech relating to labor disputes over speech relating to other matters,” he said, while the Labor Code section “adds requirements for obtaining an injunction against labor protesters that do not exist when the protest, or other form of speech, is not labor related.”

He acknowledged the contrary ruling but said that decision was reached only because the court applied the rational relationship test, whereas more current authority makes clear that strict scrutiny should be applied.

The justice went on to say that because the store is not a public forum, cases like Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, applying the state constitutional “liberty of speech” to some private property, do not apply. And since there are no free speech rights on the premises, the picketing is a continuing trespass, and thus an unlawful act, that the company is entitled to have enjoined, Nicholson said.


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