California retail businesses must once again accept unions picketing and demonstrating on their private walkways and outside their store entrances, courtesy of the California Supreme Court.   On December 27, 2012, the California Supreme Court in Ralphs Grocery Company v. UFCW, Local 8 held that a store in a strip mall could not prevent a union from peacefully picketing on the private walkway in front of the store entrance.  

Ralphs opened a Food Company warehouse in Sacramento. The union picketed the store to organize the facility. Ralphs had a lawful company policy that prohibited speech activities on its property under certain circumstances. The union disregarded the rule and, after the police refused to get involved, Ralphs sought an injunction. In doing so, it argued that the union trespassed on its private property. The union raised the defense that its activity was protected under the Moscone Act and California Labor Code Section 1138.1. 

The Moscone Act (California Code of Civil Procedure section 527.3) provides in part that certain activities, including peaceful picketing or patrolling during a labor dispute, are legal and cannot be enjoined. California Labor Code section 1138.1 limits when courts can issue an injunction during a labor dispute.


The trial court found for the union concluding that Ralphs could not satisfy the requirements of 1138.1. The Court of Appeal disagreed, concluding that the Moscone Act and 1138.1 were unconstitutional because they provided greater protection to speech related to labor disputes than to other speech.  


The California Supreme Court reversed. It acknowledged that Ralphs’ entrance was private property, but disagreed that the Moscone Act and Labor Code section 1138.1 are unconstitutional. The California Supreme Court concluded that the Court of Appeal misinterpreted two U.S. Supreme Court cases, Mosley and Carey, that struck down statutes that treated labor speech differently than other speech. The California Supreme Court said that the Moscone Act and 1138.1 were rationally related to the State’s interest in protecting collective bargaining without unwarranted interference from the courts.


Hopefully, Ralphs will appeal this decision to the U.S. Supreme Court where the decision may be reversed and the Moscone Act and California Labor Code section 1138 invalidated since they clearly treat speech regarding labor disputes differently than all other speech. The U.S. Supreme Court in Mosley and Carey declared similar statutes regulating speech unconstitutional where the statutes exempted labor speech from the regulations


In the meantime, businesses should continue to call the police when unions picket on their private property in violation of their access rules and disrupt their business, and then hope the police are responsive. Only as a last resort should the business seek injunctive relief because Labor Code Section 1138.1 makes meeting the requirements for injunctive relief difficult.  


Thanks to labor law afficionado Chip Zuver for these insights.