Supreme Court To Decide Whether Unions Have Right of Access to Retailer’s Private Property

Winter 2012Articles California Update

The California Supreme Court will soon decide whether the parking area and sidewalk in front of the entrance to a retail store (part of a larger strip mall shopping center) constitutes a “public forum,” and whether the Moscone Act (California Code of Civil Procedure Section 527.3) and California Labor Code Section 1138.1, which limit the availability of injunctive relief in labor disputes, violate the First Amendment in granting preferential treatment to speech concerning labor disputes.

The cases at issue are Ralphs Grocery Co. v United Food & Commercial Workers Union, Local 8. Ralphs operates a retail grocery store located in a retail strip mall. The union requested recognition. Ralphs refused, and the union proceeded to engage in picketing and leafleting on the private sidewalk adjacent to and at the entrances to the store. Ralphs asked the union to move the activity off of Ralphs’ private property, but the union refused. Ralphs filed suit in state court alleging trespass, and seeking injunctive relief forcing the picketers off Ralphs’ property. The union opposed, relying on the Moscone Act and Labor Code § 1138.1. The trial court denied the injunction based on Labor Code § 1138.1, concluding Ralphs had not met the procedural requirements for injunctive relief. Ralphs appealed.

The Court of Appeal reversed, holding that a private sidewalk in front of the store entrance is not a “public forum” under the state constitution because it is not a place where the public is invited to congregate and socialize. The Court also concluded that the Moscone Act and Labor Code § 1138.1 violated the First and Fourteenth Amendment to the U.S. Constitution because the statutes favored speech concerning labor disputes over other forms of speech. The union appealed and the California Supreme Court agreed to hear the case.

This case could have a far reaching effect on employers in California, and it is unclear which side the Court favors. Should the Court affirm the Court of Appeal, employers will be able to preclude unions and others with whom they disagree from expressing their views on the employer’s property in strip malls and other shopping centers. Unfortunately, the NLRB appears to be actively increasing off duty employees’ right of access to their employer’s business, thus mitigating to some extent the benefit of a favorable decision in the instant case.