On July 29, 2010, in Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8, the California Court of Appeal reversed the trial court’s denial of a preliminary injunction sought by a grocery store to protect it from picketing by several labor organizations on its private property. More importantly, the Court of Appeal’s decision invalidated two pro-union laws in California, holding that the laws were unconstitutional in violation of the First and Fourteenth Amendments because they favor speech related to a labor dispute over speech related to other issues.

The first law at issue, California Code of Civil Procedure section 527.3(b), or the Moscone Act, prohibits courts from issuing restraining orders or injunctions against labor unions who engage in conduct relating to a “labor dispute,” such as peaceful picketing. The second law, California Labor Code section 1138.1, requires a court to hold a hearing with live witnesses and make a number of factual findings prior to issuing an injunction – procedures that are not required in non-labor dispute cases – thereby restricting the court’s authority in any case involving a labor dispute. The Court of Appeal held that these laws unconstitutionally interfere with the rights of property owners.

Undoubtedly motivated by the impact the Ralphs decision may have in other states that may look to California for guidance in interpreting similar laws, United Food & Commercial Workers Union Local 8 filed a petition for review, and numerous labor organizations filed requests for depublication of the appellate decision. The unions filing requests for depublication include: California Nurses Association; California School Employees Association; United Food and Commercial Workers Union Locals 135, 324, 770, 1167, and 1428; Korean Immigrant Workers Alliance; Studio Transportation Drivers, Local Union 399; and Service Employees International Union. On September 29, 2010, all seven Justices on the California Supreme Court voted to grant the plaintiff labor organization’s petition for review. As a result, the Court of Appeal’s decision is no longer binding authority and the constitutionality of the Moscone Act and California Labor Code section 1138.1 remains unsettled. However, prior to a ruling from the California Supreme Court – the timing of which is not dictated by statute or rule, and cannot be predicted – California’s trial courts and Courts of Appeal might independently reach the same conclusions reached by the Court of Appeal in Ralphs.