The following article is of critical concern to every California Prevailing Wage contractor who is on the front lines of the conflict with labor unions. If you have questions or want more information on how this ruling may affect your prevailing wage job – particularly in the event of union threats of action against your job site – contact us immediately so that we can steer you towards resources which can assist!

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On July 19, 2010, the California Court of Appeals ruled that two statutes which favor speech related to labor disputes violated the First and Fourteenth Amendments of the United States Constitution.

In Ralphs Grocery Co. v. United Food and Commercial Workers Union Local 8 (C060413, July 19, 2010), UFCW agents picketed in front of a store owned by Ralphs, encouraging people not to shop there because it was non-union.  Eight to ten picketers walked back and forth in front of the doors, carrying signs and handing out flyers.  The store provided the union agents with a memorandum containing general rules governing their speech and picketing activity.  The union’s agents did not adhere to rules and the police were contacted.  The police were unwilling to remove the peaceful picketers from Ralphs’ private property.

Ralphs then filed a complaint in state court that alleged trespass and sought declaratory and injunctive relief to prevent the union from using Ralphs’ private property as a public forum for the union’s speech.  After an evidentiary hearing, the trial court denied Ralphs’ motion for a preliminary injunction and an appeal followed.

The Court of Appeals first discussed whether the entrance area and apron in front of the store constituted a public or private forum and then addressed the constitutionality of the Moscone Act and Labor Code section 1138.1.

The Entrance and Apron Area in Front of the Store is a
“Private Forum” under California law

The law treats speech rights on private property very differently depending on whether the speech occurs in a “public forum” or “private forum.”  Owners of property that is deemed to be a “private forum” may selectively permit or prohibit speech.  Conversely, if property is deemed to constitute a “public forum,” courts will not enjoin individuals who enter the property and engage in speech that complies with the owner’s reasonable rules.  Put differently, if a court rules that private property constitutes a “public forum,” then a court will not stop people from engaging in speech on that property.

Here, the Court found that the entrance and apron area in front of the store was a “private forum” under California law.  The Court made this determination even though in past Ralphs granted permission to numerous individuals to solicit money and signatures, and sell subscriptions to newspapers, DVDs, and food.  Despite permitting other individuals to use the entrance area, the Court ruled that Ralphs, as a private property owner, could limit the union’s speech and could exclude anyone who engaged in prohibited speech.

This ruling protects the rights of private property owners with regard to the entrance and apron area of the store only.  It is important to note that the Court may have reached a different conclusion if the union chose to picket in common areas of the shopping center, including areas with outdoor seating or other signs the space was designed as a public meeting place.  Obviously, picketing in the common areas of a mall is not as effective as picketing at the entrance to a particular store.  If possible, it may be helpful for property owners to consider setting up common eating or gathering areas away from the entrance to their facilities.

After the Court determined that the front of the store was a “private forum” under California law, it discussed the constitutionality of the Moscone Act and Labor Code section 1138.1.

The Moscone Act and Labor Code section 1138.1 are Unconstitutional
Because They Favor Speech Related to Labor Disputes

The Moscone Act, found at California Code of Civil Procedure section 527.3, declares that conduct, such as peaceful picketing, related to labor disputes is legal and that the court does not have jurisdiction to issue a restraining order or injunction to prohibit such conduct.  The Act declares that labor protests on private property are legal, even though a similar protest concerning a different issue would constitute trespassing.

The Act, the Court ruled, gives preferential treatment to speech concerning labor disputes over speech about other issues. The Court ruled this favorable treatment of speech based on its content (i.e. labor disputes) violates the First and Fourteenth Amendments of the U.S. Constitution.

Labor Code section 1138.1 suffers from a similar defect.  Section 1138.1 adds evidentiary requirements to obtain an injunction against labor protestors that do not exist for protests related to other matters.  Pursuant to section 1138.1, a property owner that seeks an injunction to stop trespassing in a labor protest, must show, among other things, that:

 

  1. Unlawful acts, other than the trespass itself, have been threatened and will be committed;
  2. Substantial and irreparable injury to the property will follow; and
  3. Public officers charged with the duty to protect the property will not or cannot intercede.

 

If the same property owner sought an injunction to stop trespassing related to an anti-war protest:

  1. The trespass itself would justify the injunction (there is no need to establish that additional unlawful acts have been threatened and will be committed);
  2. Any irreparable harm would support the injunction (the harm does not have to be to the property itself); and
  3. There is no need to make any showing with regarding to public officers’ inability or unwillingness to provide protection.

The additional elements to obtain an injunction against labor protestors made it virtually impossible for a property owner to obtain injunctive relief in state court against labor protestors.  Section 1138.1 effectively forced private property owners to provide a forum for labor-related speech that the owner would not be required to provide for other types of speech.  The Court ruled that this content based favoritism violated the First and Fourteenth Amendments.

Conclusion

Labor protestors will no longer be able to rely on the Moscone Act or Labor Code section 1138.1 to insulate themselves from private property owners seeking an injunction to prohibit trespassing.  Because these statutes have been struck down, private property owners will have greater rights to regulate the speech that occurs in front of the entrances to their business.

Property owners should be aware that space which is designed, or appears to be designed, as a meeting place could constitute a public forum for the purposes of free speech.  If a court determines that a space constitutes a public forum, it may be very difficult to remove the speakers.