California Supreme Court Permits Picketing On Private Property

In a split decision, the California Supreme Court has upheld the constitutionality of two statutes that restrict state court injunctions against picketing by labor unions on private property. Ralphs Grocery Co. v. United Food and Comm. Workers Union Local 8, No. S185544 (Cal. Dec. 27, 2012).1 Although mass picketing and violence were not involved in this case, one of the two statutes also substantially limits the ability of employers to obtain injunctive relief against such picket line misconduct by labor unions.

The court's ruling reversed a decision by a state appellate court, which had concluded that the statutes are unconstitutional because they favor expressive activities by labor unions in violation of the U.S. Constitution. Ralphs Grocery Co. v. United Food and Comm. Workers Union Local 8, 113 Cal. Rptr. 3d 88 (2010). A second decision by another California appellate court involving the same parties had reached the same conclusion. That decision has now effectively also been overruled. Ralphs Grocery Co. v. United Food and Comm. Workers Union Local 8, 192 Cal. App. 4th 200 (2011).

The California Supreme Court's decision means that labor picketers, but no one else, will have the right to engage in speech activities on an employer's private property. Thus, as the dissent points out, the decision "places California on a collision course with the federal courts."

The California Anti-Injunction Statutes

One of the statutes at issue in the decision, the Moscone Act (California Code of Civil Procedure section 527.3), provides that picketing and related union activities during a labor dispute cannot be enjoined except in the case of certain "unlawful" conduct. This statutory restraint on state court power does not apply in the case of picket line misconduct by a labor union, such as mass picketing and violence, but it has prevented injunctions against union trespassing.

The second statute, California Labor Code section 1138.1, limits the authority of state courts to issue an injunction in a labor dispute and establishes several difficult requirements that an employer must overcome to obtain an injunction against union trespassing or picket line misconduct, such as mass picketing and violence. This statute has effectively prevented employers from obtaining injunctions in labor disputes.

Because the Moscone Act favors union speech by allowing unions to engage in expressive activities on an employer's private property, the U.S. Court of Appeals for the D.C. Circuit had previously held that the state law results in unconstitutional content discrimination under the First Amendment and the Equal Protection Clause of the U.S. Constitution. Waremart Foods v. NLRB, 354 F.3d 870, 872 (D.C. Cir. 2004). In the new decision, however, the California Supreme Court rejected the D.C. Circuit's opinion, finding it "unpersuasive." It seems likely that the U.S. Supreme Court will resolve this conflict between the D.C. Circuit and California's highest court.

Scope of Free Speech Precedent in Labor Disputes

The disagreement between the D.C. Circuit and the California Supreme Court on this issue results primarily from opposing views of U.S. Supreme...