Metropolitan News-Enterprise


Tuesday, June 11, 2013


Page 1


Court Denies Review in Supermarket Picketing Dispute


By a MetNews Staff Writer


The U.S. Supreme Court yesterday left standing a California Supreme Court decision upholding state laws that largely prohibit courts from enjoining union picketing during a labor dispute.

Without comment or dissent, the justices denied certiorari in Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8 (2012) 55 Cal. 4th 1083.

The state high court ruled last December, in a 6-1 decision, that two statutes—Code of Civil Procedure Sec. 527.3, also known as the Moscone Act, and Labor Code Sec. 1138.1—do not unconstitutionally interfere with the rights of property owners.

The decision reversed a Third District Court of Appeal ruling, holding that Ralphs, which owns the Foods Co chain of warehouse-type grocery stores, was entitled to an injunction against picketing by the union at a Foods Co in Sacramento.

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

The company responded by trying to bar the pickets as trespassers. But after litigation in the lower courts, the state’s high courts agreed with the union that the two statutes applied and are constitutional.

 Timothy Ryan of Morrison & Foerster, representing Ralphs, commented on the Supreme Court’s decision not to hear the case.

He said in a statement:

“We are disappointed that the U.S. Supreme Court is not going to review this case to resolve the conflict between the D.C. Circuit and the California Supreme Court regarding the constitutionality of California’s preference for labor-related speech activities on private property.  But retailers in California nevertheless stand to benefit from the California Supreme Court’s decision.  That decision approves Court of Appeal decisions holding that ‘to be a public forum under [the California Constitution], an area within a shopping center must be designed and furnished in a way that induces shoppers to congregate for purposes of entertainment, relaxation, or conversation, and not merely to walk to or from a parking area, or to walk from one store to another, or to view a store’s merchandise and advertising displays.’  That means that—with the sole exception of labor-related speech—modest retail establishments may exclude all expressive activities from their property, and even stores located within large shopping centers may prohibit such activities near their entrances.”

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.

But the Supreme Court, in an opinion by Justice Joyce L. Kennard, said the statutes are constitutional exercises of the Legislature’s authority to balance labor and management rights and do not constitute content-based regulation of speech.

Justice Ming Chin was the lone dissenter, agreeing with the majority that the statutes are facially constitutional, but saying they may have been applied in an unconstitutional manner.


Copyright 2013, Metropolitan News Company