Another California Court of Appeal Finds California's Special Protections for Labor Picketing to be Unconstitutional

Sheppard Mullin Richter & Hampton LLP

On January 27, 2011, another California Court of Appeal held in Ralph’s Grocery Co. v. United Food and Commercial Workers Union Local 8 that the Moscone Act and Labor Code section 1138.1, both of which give special protections to union picketing, are unconstitutional because they violate constitutional free speech protections. This is the second Court of Appeal decision within the past year to reach this conclusion.

The issue in this case arose out of labor picketing at a Foods Co. grocery store by non-employee representatives of the United Food and Commercial Workers Union (“UFCW”). In attempting to raise support for a union campaign at the non-union grocery store, union representatives carried placards, distributed leaflets, and attempted to engage customers in conversations about union issues. The picketing took place in an area in front of the store that was owed by the company, but that was open to the general public. After it was reported that the picketers were confronting store employees, and were aggressive in distributing leaflets to customers who did not want them, the store sought an injunction to prevent the picketing. The trial court held that it could not issue an injunction, because it was prohibited from doing so by the Moscone Act and Labor Code section 1138.1.

The Moscone Act states that California courts may not issue a restraining order or injunction prohibiting labor picketing, even when that picketing occurs on an employer’s private property. Similarly, Labor Code section 1138.1 prohibits courts from issuing an in injunction in “any case involving or growing out of a labor dispute,” unless a number of procedural requirements are met. The Court of Appeal found that both statutes were unconstitutional under Article I, section 2 of the California Constitution, which guarantees the right to free speech.

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