California's high court has decided to take up a long-standing controversy regarding two California statutes that, for all practical purposes, make it impossible for companies to enjoin union members from picketing on their private property, unless the union members are engaged in violence or other illegal behavior.

The Supreme Court of California granted a petition to review the intermediate appeals court decision in Ralphs Grocery v. UFCW, No. C060413 (Cal. Ct. App. July 19, 2010), which invalidated the two statutes on constitutional grounds. That decision has been “depublished” during review. Please see our July advisory regarding this case.

The Supreme Court will consider whether a grocery store must permit a labor organization to trespass on its property while attempting to publicize a dispute with the store. The California Court of Appeals had concluded that the area outside the grocery store—where United Food and Commercial Workers International Union (UFCW) members maintained a picket line, carried signs, and handed out flyers—was not a public forum and that the statutes giving union members nonconsentual access to private property were unconstitutional. The Court of Appeals, therefore, determined that Ralphs was entitled to an injunction.

Constitutionality of the two statutes in combination

The critical issue for the Supreme Court is the constitutionality of two statutes: the Moscone Act and Labor Code Section 1138.1. Enacted in 1975, the Moscone Act purports to deprive the courts of jurisdiction to issue restraining orders or injunctions prohibiting peaceful picketing relating to a labor dispute. Similarly, Labor Code Section 1138.1 purports to restrict courts from issuing injunctions in a case involving a labor dispute absent a hearing with live witnesses and certain findings of fact, which is an expensive and time-consuming process compared to the usual procedure of submitting declarations and a motion brief.

Taken together, the two statutes effectively restrict an employer from protecting its private property from trespass absent additional unlawful conduct by union representatives.

The Court of Appeals held that the two statutes impermissibly favored speech by unions over speech related to other matters and, thus, were an impermissible content-based regulation of speech violating the First and 14th Amendments to the U.S. Constitution.

Now the constitutionality of the statutes rests with the Supreme Court of California. We will continue to monitor this case and update this advisory.