Guest Blog by John Douglas
Ralphs v. UFCW Local 8, decided by the California Supreme Court on December 27, 2012, upholds the constitutionality of two statutes – the “Moscone” Act and California Labor Code 1138.1 – both of which effectively provide trespassers on private property in California with immunity from civil injunctive relief if they are engaged in a labor dispute. These statutes were passed to protect union protestors – and the California Supreme Court’s decision effectively upholds that status quo. The result in this decision is diametrically opposed on the same issue seen in a 2004 decision by the United States Court of Appeal for the District of Columbia (the court that supervises the National Labor Relations Board and is “second in command” only to the United States Supreme Court) in another California case involving Waremart.
The Ralphs case arose in the context of a smallish shopping area and thus is most relevant to retailers operating on a “freestanding” basis or in a strip mall. On the “plus” side, the California Supreme Court confirmed that such locations are not “public forums” under the California “Pruneyard” decision – an unsurprising result given the reluctance of the California Courts to allow protests outside, for example, small Planned Parenthood locations on private property.
Although California courts will be bound by the California Supreme Court’s views on the Moscone Act and Labor Code 1138.1, the California Supreme Court can no more “overrule” the Court of Appeal in the District of Columbia on a federal constitutional question than the latter court can overrule it. Thus, in litigation involving the National Labor Relations Board, private retail employers and landowners / lessees in California will still be able to rely on the Waremart decision for protection against liability under federal labor law for calling police to the scene of labor protestors trespassing on their private property. This is because the National Labor Relations Board on its own has no power to enforce its decisions. Only the federal courts of appeal have that power – and the United States Court of Appeal for the District of Columbia Circuit has jurisdiction over all federal labor controversies in the private sector – and NLRB orders- wherever they arise in the nation.
In fact, retail employers in California may have some reason to be happy with the decision. Although she hesitated to find explicitly that retailers in such locations are entitled (as they are under the Pruneyard case when they are a public forum) to set forth reasonable “time place and manner” restrictions on the activities of leafletters and protestors, in a concurring opinion, California Supreme Court Chief Justice Tani G. Cantil-Sakauye found that unions and their adherents can rely on the Moscone Act privilege only to the extent needed to get their message across. Activities that interfere unncessarily with the employer / landowners’ business – such as excessive noise-making and excessively large signs – are not protected, in her view, under the Moscone Act.
The bottom line – the decision is really not such a great “victory” for labor. At most, disaster was averted. California retailers will need to keep a close eye on the case in the upcoming month or two to see if an appeal is filed to the U.S. Supreme Court – the court that will have the last word. If the “Supremes” decide to take the case, all bets will be off – and whether the statutes under attack will survive will be a very close call.
John Douglas is a partner in Foley & Lardner’s San Francisco Labor & Employment practice.