Today the California Court of Appeal struck down two state laws that had previously made it nearly impossible for California employers to obtain injunctive relief in labor disputes. In Ralphs Grocery v. UFCW, No. C060413 (Cal. Ct. App. July 19, 2010), the Court determined that Cal. Code of Civil Procedure section 527.3 (a/k/a the “Moscone Act”) and Cal. Labor Code Section 1138.1 are unconstitutional under the First and Fourteenth Amendments of the United States Constitution because they unjustifiably favor speech related to labor disputes over other speech and because they effectively compel private employers to provide a forum for speech with which the employer disagrees.
In this case, Ralphs had been engaged in a labor dispute with the United Food & Commercial Workers Union over the union’s unsuccessful efforts to organize a Foods Co. grocery store owned by Ralphs. Over the course of several months the union maintained a picket line outside the front doors of the grocery store, carrying signs and handing out flyers encouraging people not to shop at Foods Co. Because the union ignored Ralphs’ repeated requests to relocate the picketers off company property to a distance of at least 20 feet from the front doors, Ralphs filed a complaint in state court alleging trespass and seeking injunctive relief to prevent the union from using its property as a forum to express the union’s views. The trial court denied Ralphs’ request on the ground that, under Labor Code Section 1138.1, it failed to show that the union’s conduct would cause “substantial and irreparable injury” to store property, and failed to show that the restrictions it sought to impose on the union’s conduct were reasonable “time place and manner” restrictions within the guidelines of Fashion Valley Mall, LLC v. National Labor Relations Bd., 42 Cal. 4th 850, 858 (2007).
Not a Public Forum
First, the Court of Appeal rejected the trial court’s implicit finding that the front entrance of the Foods Co. store was a “public forum” under Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (1979) and Fashion Valley Mall. Whereas constitutional free speech protections ordinarily do not apply to private entities, in Pruneyard the California Supreme Court held that the liberty of speech clause of the California Constitution protected speech even in a privately-owned shopping center because the owner had created a “public forum.” By contrast, the Court here concluded that the entrance area of the Foods Co. store was not a public forum because it lacked outdoor seating, restaurants, or any other signs that it was designed or presented to the public as a public meeting place. Accordingly, Ralphs was free to restrict speech on its property without constraint from either the First Amendment or California’s constitutional equivalent.
The Moscone Act and Cal. Lab. Code 1138.1 Infringed Ralph’s Constitutional Rights
The Court next considered the constitutionality of the Moscone Act and California Labor Code Section 1138.1, both of which limited Ralph’s ability to obtain an injunction against the union. Specifically, the Moscone Act expressly deprives state courts of jurisdiction to issue injunctions in cases involving labor disputes by declaring that conduct relating to a labor dispute, such as peaceful picketing, “shall be legal,” and providing that no court shall have jurisdiction to enjoin such conduct. Code Civ. Proc. Section 527.3(b). Similarly, while not barring injunctive relief outright, Cal. Labor Code Section 1138.1 places additional burdens on a party seeking an injunction in a labor dispute that are otherwise not applicable when seeking injunctive relief against trespassers not involved in a labor dispute.
The Court found both the Moscone Act and Labor Code Section 1138.1 unconstitutional as applied to the facts in this case because they favored speech related to labor disputes over speech related to other matters, which is a form of content-based restriction on speech. Applying strict scrutiny, the Court concluded that the State of California had no compelling interest in justifying such differential treatment, and, therefore, both statutes were deemed unconstitutional under the First and Fourteenth Amendments.
Finally, because it found that Ralphs had made an unrebutted showing of a continuing trespass on the part of the union (a per se unlawful act), and in the absence Labor Code Section 1138.1, the Court of Appeal determined that Ralphs was entitled to a preliminary injunction.
What Employers Should Take Away
While this decision marks a significant recognition of the property rights of private employers, the key issue remains whether the employer has created a public forum under Prunyard and its progeny. Here, the Court concluded that the front entrance to the Foods Co. was not a public forum because there were no indications that the area was intended to be used a public meeting place, but a few tables and chairs might have altered the result. Employers open to the public should consult legal counsel before implementing speech any speech restrictions.