United States Supreme Court Denies Review of California Laws Providing Preferential Treatment To Trespassing by Picketers
By Stephen R. McCutcheon, Jr.
The United States Supreme Court issued an order this morning denying review in Ralphs Grocery Co. v. United Food and Commercial Workers Union Local 8. The denial of review allows the continued enforcement of two California laws that make it nearly impossible for employers and property owners to obtain injunctive relief against unlawful Union picketing activities.
When UFCW Local 8 began picketing a non-union Ralphs store, it refused to abide by the company’s time, place and manner restrictions. The company sought a court order to exclude the UFCW from its property, but because the picketers’ expression was labor-related, the California Supreme Court held that California’s Moscone Act, Code of Civil Procedure section 527.3, and Section 1138.1 of the California Labor Code protected the union’s picketing activity on what was otherwise private property.
Store owners such as Ralphs have the right to exclude persons engaging in expressive activity from their property, but the Moscone Act and section 1138.1 deprive the courts of the ability to enjoin picketing activity during a labor dispute unless the employer can meet an exceedingly difficult test and show, among other things, that not only were unlawful acts threatened that would result substantial and irreparable injury, but that they have no other remedy, and the police are unable or unwilling to furnish protection to the employer’s property.
Ralphs sought review by the United States Supreme Court of whether the Moscone Act and section 1138.1 violate the U.S. Constitution by forcing property owners to open up their private property to the expressive activities of some protesters and picketers based on the content of their speech. The United States Supreme Court had previously held that state laws that favored labor-related speech were unconstitutional, and the California Supreme Court’s opinion directly conflicted with a the D.C. Circuit Court’s decision in Waremart Foods v. NLRB, which held that the Moscone Act was unconstitutional to the extent that it affords greater protection to labor-related speech over all other speech.
There are a multitude of reasons why the United States Supreme Court may deny review of a case, and it is not to be taken as an expression of the court’s view of the merits of the case, but the court’s denial of review leaves in place a scheme which makes it difficult, if not impossible, for employers and property owners to protect themselves from unlawful picketing activity such as blocking entrances and engaging in threatening or destructive actions. Employers faced with illegal activity should continue to call the police to address acts such as vandalism, disorderly conduct, or blocking of entrances and exits, and consider filing a suit for damages against the Union. A court order to prevent such acts from occurring is theoretically available, but is not a realistic option.