Metropolitan News-Enterprise


Monday, January 31, 2011


Page 1


Court Holds Labor Picketing Laws Unconstitutional

Fifth District Panel Is Second to Hold That Two Statutes Violate First Amendment




Laws that largely prohibit courts from enjoining union picketing during a labor dispute are an unconstitutional interference with the rights of property owners, the Fifth District Court of Appeal has ruled.

The justices overturned an order by Fresno Superior Court Judge Donald R. Franson Jr.—since elevated to the Court of Appeal—denying a preliminary injunction. Ralphs Grocery Company sought the injunction to block the United Food and Commercial Workers Union Local 8 from picketing a Sacramento warehouse-type Food Co grocery store.

The ruling is the second appeals court decision to hold that Code of Civil Procedure Sec. 527.3—known as the Moscone Act—and Labor Code Sec. 1138.1 are unconstitutional. The California Supreme Court voted unanimously in September to review the earlier decision, by the Third District, and the case is in the briefing stage.

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.

Friday’s ruling, as well as the Third District’s, grow out of a campaign by Local 8 to organize Foods Co stores. Foods Co is a subsidiary of the Ralphs chain, but is, unlike Ralphs, non-union, and Local 8 has organized an informational picketing campaign urging customers at the Sacramento and Fresno stores to shop elsewhere.

In seeking the Fresno injunction, Ralphs said it had allowed union members onto its property, but that they had refused to abide by the rules Ralphs had set down, unpleasantly confronted customers, and occasionally made aggressive efforts to force handbills on customers who did not want to receive them.

 Franson ruled that the Moscone Act and Sec. 1138.1 precluded it from issuing a preliminary injunction.

But Justice Jennifer Detjen, writing for the Court of Appeal, said both statutes violate the First Amendment because they give preference to labor-related speech over other forms of expression.

The jurist wrote:

“Our concern here is with the state establishing a priority for particular speech based on its content. The point is not that labor speech is undeserving of legislative protection but, instead, that there is no compelling reason for the state to single it out as the only form of speech that can be exercised despite the objection of the owner of private property upon which the speech activity occurs. “

The justice distinguished Hudgens v. NLRB (1976) 424 U.S. 507. The court held there that members of a striking union had no First Amendment right to picket on private property near the employer’s store, but that the National Labor Relations Board could “seek a proper accommodation” between the statutory right to picket during a labor dispute and the property owner’s rights.

Unlike the federal labor statute, Detjen wrote, the Moscone Act and Sec. 1138.1 are not part of a comprehensive set of regulations of labor-management relations, but a direct preference for one type of speech over another.

“It is that issue that concerns us: The statutes select which views the state is willing to have discussed or debated,” the justice said. Prior decisions upholding the statutes, she said, did not address that issue.

On remand, she said, the trial judge must decide other issues in the case, including whether an injunction is necessary, and whether the company will suffer irreparable harm if the preliminary injunction is not granted, along with the ultimate issue of whether the company is entitled to a permanent injunction.

Justice Stephen Kane concurred in the opinion. He also authored a separate concurrence, rejecting the union’s contention that Ralphs lacked standing to assert the free speech rights of persons who might want to engage in expressive activities, unrelated to any labor dispute, on its property.

 “[The union’s] belated contention that appellant lacks legal standing to challenge the validity of the Moscone Act...and Labor Code section 1138.1 because appellant’s free speech is not being restricted misses the point entirely,” Kane wrote. “Appellant’s standing emanates from its own private property rights, not from its own free speech rights.”

Kane also said it was “ludicrous for respondent to argue that appellant is precluded from challenging the validity of the very statutes that respondent brandished (and the lower court relied upon) in opposing its request for injunctive relief.”

Justice Rebecca Wiseman dissented, arguing that Ralphs “lacks standing to raise a constitutional free-speech claim because it does not (and cannot) contend that its own freedom of speech is burdened.”

Wiseman further argued that the statutes are constitutional because they “do not suppress or chill any speech.”

She elaborated:

“For whatever reason, the California Legislature has decided to allow peaceful labor speech on private property over the owner’s objection. Laws that protect expression by limiting courts’ jurisdiction to enjoin labor activity, such as the federal Norris-LaGuardia Act and state laws patterned after it, came into existence many years ago because courts were excessively zealous in granting injunctions against labor activity. If the pendulum has swung too far the other way and now enables labor unions to intimidate business owners, it is the responsibility of the Legislature to change the law. The fact that the Legislature may not be responsive does not mean the courts should step in and determine that the statutes are invalid absent a convincing argument that they are violating anyone’s constitutional rights. “

The case is Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8, 11 S.O.S. 609.


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