Metropolitan News-Enterprise


Friday, December 28, 2012


Page 3


Supreme Court Rules for Union in Dispute Over Supermarket Leafletting

State Laws Limiting Authority to Enjoin Picketing in Labor Disputes Held Constitutional in 6-1 Decision


By a MetNews Staff Writer


Laws that largely prohibit courts from enjoining union picketing during a labor dispute do not unconstitutionally interfere with the rights of property owners, the state Supreme Court ruled yesterday.

In a 6-1 decision, the high court reversed the Third District Court of Appeal, which had 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, more than five 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 Code of Civil Procedure Sec. 527.3, also known as the Moscone Act, and Labor Code Sec. 1138.1. 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.

Sacramento Superior Court Judge Loren McMaster ruled that the Moscone Act was unconstitutional because it constitutes “content-based discrimination.” The judge found Sec. 1138.1 to be similarly flawed, but said he was bound by Waremart Foods v. United Food & Commercial Workers Union (2001) 87 Cal.App.4th 145, which upheld the statute.

The judge then held an evidentiary hearing and ruled that the company could not meet the standards for an injunction under Sec. 1138.1.

In reversing, the Third District said both statutes are unconstitutional because they grant greater rights to those expressing pro-union views that those speaking on other subjects.

The panel also said 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.

Justice Joyce L. Kennard, writing yesterday for the high court, agreed that the liberty-of-speech clause did not apply. But the labor-picketing statutes are constitutional, she said.

“We do not agree with the Court of Appeal that the Moscone Act and section 1138.1, which are components of a state statutory system for regulating labor relations, and which are modeled on federal law, run afoul of the federal constitutional prohibition on content discrimination in speech regulations,” Kennard said.

The Court of Appeal, she said, erred in relying on U.S. Supreme Court rulings that invalidated an ordinance barring picketing near schools, and a statute barring picketing at a residence, both of which included exceptions for labor picketing.

Those cases are distinguishable, Kennard said, because the stricken enactments barred otherwise protected speech unconnected with a labor dispute.

“By contrast, invalidating here the Moscone Act and section 1138.1 would not remove any restrictions on speech or enhance any opportunities for peaceful picketing or protest anywhere, including the privately owned walkway in front of the customer entrance to the College Square Foods Co store,” the justice wrote. “This is because neither the Moscone Act nor section 1138.1 abridges speech.”

Chief Justice Tani Cantil-Sakauye and Justices Marvin Baxter, Carol Corrigan, Goodwin Liu and Kathryn M. Werdegar joined Kennard’s opinion.

The justices were divided, however, regarding the scope of the ruling, as two separate concurrences were filed.

Cantil-Sakauye, joined by Baxter and Corrigan, emphasized that the decision “concerns only the rights codified in the Moscone Act,” so that if “conduct on private property exceeds the activities that are protected by the Moscone Act [it] will constitute an unlawful trespass, and may be excluded by the employer.”

Liu, joined by Werdegar, criticized the limiting language of the chief justice’s opinion, and cited the history of federal legislation, such as the Norris-LaGuardia Act, designed to protect the rights of labor picketers.    

Chin, dissenting, agreed with the majority that the statutes are facially constitutional, but said they may have been applied in an unconstitutional manner, and that the trial court might have decided the issue differently if it had anticipated the high court’s holding that the area in front of the store is not a public forum.

The case is Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8, 12 S.O.S. 6697.


Copyright 2012, Metropolitan News Company