Two important statutes that permit labor unions to trespass on the private property of California employers have been found unconstitutional for the second time by a state appellate court.

In Ralphs Grocery Company v. UFCW Local 8 (1/27/11), (pdf) the Fifth District Court of Appeal held that the statutes are invalid as content discrimination under the free speech provisions of the California Constitution because they favor union speech (typically in the form of picketing or handbilling) over similar conduct by other groups. The case involved picketing by the UFCW on the private property of a grocery store in Fresno, California.

One of the statutes is the Moscone Act (Code of Civil Procedure Section 527.3), which the state Supreme Court construed decades ago as permitting union handbilling on the private sidewalk of a retail store. The second is an anti-injunction statute (Labor Code Section 1138.1), which establishes numerous difficult requirements for obtaining an injunction in a labor dispute.

Last year, the Third District Court of Appeal reached the same result in a case involving the identical parties at a store located in Sacramento. Ralphs Grocery Company v. UFCW Local 8, 186 Cal.App.4th 1078 (2010). The California Supreme Court has granted review of that decision, and it is anticipated that review will also be granted in the Fresno case.

Littler Mendelson filed amicus briefs on behalf of several trade associations in both of the Ralphs cases, and we are currently filing a similar brief in the case pending before the Supreme Court.

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