Wal-Mart Stores has filed an interesting and unusual lawsuit in Los Angeles Superior Court seeking injunctive relief to stop various activities conducted by the United Food and Commercial Workers Union and its subsidiary “OUR Wal-Mart” (Organization United for Respect at Wal-Mart) in connection with their long-running efforts to organize the giant retailer’s employees.  The complaint alleges that on numerous occasions in 2012 and 2013 demonstrators acting on behalf of the UFCW entered various Wal-Mart stores in California and disrupted store operations.  These actions included “flash mobs,” use of bullhorns inside stores, setting free balloons, and leaving perishable goods in carts without paying for them.  Wal-Mart had repeatedly notified the UFCW that these actions constituted unlawful trespass on its properties but the demonstrations persisted.  For example, on August 15, 2012, a group of OUR Wal-Mart activists allegedly entered a store in Baldwin Hills posing as shoppers.  Suddenly, one member of the group took out a bullhorn and began reading from a script.  At one point, the group began singing the Aretha Franklin song “Respect.”  The incident lasted about 20 minutes.  Some of these demonstrations occurred during the same period that employees at several Wal-Mart stores engaged in unprecedented one-day work stoppages in a show of support for UFCW’s organizing efforts.  As recently as April 24, 2013, UFCW staged a coordinated group trespass in numerous Wal-Mart stores throughout California.

Consistent with the experience of many retailers in California in dealing with labor union disruptions, Wal-Mart has had little success in its attempts to get local law enforcement to address these tactics.  The demonstrators often disperse before police arrive, or the police have refused to intervene on the grounds that the trespass was “labor activity.” 

Wal-Mart’s lawsuit seeks a permanent injunction barring UFCW activists from entering any of its 250 stores in California “for any purpose other than for shopping for and/or purchasing merchandise.”  The unusual angle of the claim is that it also seeks declaratory relief establishing that California’s controversial and much-litigated Moscone Act does not apply to labor-related demonstrations inside of Wal-Mart’s stores.

The Moscone Act, Cal. C.C.P. 527.3, was enacted in the seventies when the pro-labor California Legislature waded into a long-running litigation over the rights of labor unions to conduct organizing activities on private property in retail settings.  The Act, read together with Labor Code Section 1138.1, broadly limits the jurisdiction of the Superior Courts to provide injunctive relief to address disruptive activity related to labor disputes and union organizing.  For all practical purposes, these provisions as they have been interpreted by the California courts have made it all but impossible for retail employers to prevent disruptive trespassing on privately owned sidewalks, parking lots, court yards and the like by labor groups unless serious violence or property damage has occurred.

Wal-Mart’s case against UFCW will probably be given an edge by a recent decision of the California Supreme Court.  In late December 2012, a divided California Supreme Court in Ralphs Grocery v. UFCW rejected several lower court rulings holding that the Moscone Act was unconstitutional because it favors “speech” by labor unions and allows unions a greater right to trespass on private property than other third parties.  Also rejecting contrary federal authority, the California High Court held that the Moscone Act was not unconstitutional.  But in a less-noted aspect of the Ralphs case, the Court sharply limited the long-standing Pruneyard doctrine, which stands for the proposition that certain privately owned property in shopping centers can qualify as a “public forum,” where picketing or hand billing that would otherwise be trespassing must be permitted.  The Court held in Ralphs that the privately owned sidewalk in front of the store at issue was not a public forum.  The Court limited application of the Pruneyard doctrine to places in retail settings where members of the public are invited to congregate for performances, socializing, and similar activities.  In her separate opinion Chief Justice Cantil-Sakauye specifically voiced the opinion that picketing or demonstrating inside a retail store is not protected.  The Ralphs decision has been appealed to the U.S. Supreme Court.

Repeatedly using italics to emphasize its point, the Wal-Mart lawsuit seeks an injunction to prevent labor-related activity only inside of its stores.  The rationale of the holding of Ralphs on the public forum issue would seem to support the Company’s position.  That is, if a privately-owned sidewalk outside of a store is not akin to public forum where free speech must be prevented, it would seem even more clear that the inside of a store should be protected from disruption.  And of course, when you file a lawsuit seeking resolution of a novel legal issue, it’s always great to know in advance that the Chief Justice of the Supreme Court agrees with your position. 

This lawsuit will be closely watched and will undoubtedly result in appeals no matter what the outcome.  In the meantime, retail employers should continue to be vigilant and consistent in protecting their property from intrusion by any sort of protesters, picketers or handbillers, whether they are affiliated with a labor union or not.  It is critical that every retail employer protect property that it owns with carefully drafted “time, place and manner” rules governing public access and that those rules be uniformly enforced.  If the property is leased, the employer should ensure in advance of any controversy over access by picketers or handbillers that the landlord is ready and able to limit the access to the full degree the law allows.