Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8

Citation55 Cal.4th 1083,150 Cal.Rptr.3d 501,290 P.3d 1116
Decision Date27 December 2012
Docket NumberNo. S185544.,S185544.
CourtCalifornia Supreme Court
PartiesRALPHS GROCERY COMPANY, Plaintiff and Appellant, v. UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 8, Defendant and Respondent.

55 Cal.4th 1083
290 P.3d 1116
150 Cal.Rptr.3d 501

RALPHS GROCERY COMPANY, Plaintiff and Appellant,
v.
UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 8, Defendant and Respondent.

No. S185544.

Supreme Court of California

Dec. 27, 2012.



See 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 654.



Negative Treatment Reconsidered


Cal.Civ.Proc.
Code § 527.3; Cal. Labor Code § 1138.1.

150 Cal.Rptr.3d 502]Morrison & Foerster, Miriam A. Vogel, Timothy F. Ryan and Tritia M. Murata, Los Angeles, for Plaintiff and Appellant.
Littler Mendelson, William J. Emanuel and Natalie Rainforth, Los Angeles, for Employers Group, California Grocers Association and California Hospital Association as Amici Curiae on behalf of Plaintiff and Appellant.

Jones Day, Willis J. Goldsmith, New York, Amanda M. Betman, Princeton, Craig E. Stewart, San Francisco; National Chamber Litigation Center, Inc., Robin S. Conrad and Shane B. Kawka, Washington, for Chamber of Commerce of the United States of America as Amicus Curiae on behalf of Plaintiff and Appellant.

Manatt, Phelps & Phillips, Michael M. Berger, Los Angeles, and Matthew P. Kanny for California Retailers Association, California Business Properties Association and International Council of Shopping Centers as Amici Curiae on behalf of Plaintiff and Appellant.

Davis, Cowell & Bowe, Richard G. McCracken, Steven L. Stemerman, Elizabeth A. Lawrence, Andrew J. Kahn, Paul L. More, Sarah Grossman–Swenson, San Francisco, for Defendant and Respondent.

David L. Llewellyn, Jr., Citrus Heights, for the Missionary Church of the Disciples [150 Cal.Rptr.3d 503]of Jesus Christ as Amicus Curiae on behalf of Defendant and Respondent.

Judith A. Scott, Washington; Altshuler Berzon, Stephen P. Berzon, Scott A. Kronland and P. Casey Pitts, San Francisco, for Service Employees International Union as Amicus Curiae on behalf of Defendant and Respondent.

Lynn Rhinehart, James B. Coppess, Washington; Altshuler Berzon and Michael Rubin, San Francisco, for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae on behalf of Defendant and Respondent.

Alan L. Schlosser, San Francisco, for American Civil Liberties Union of Northern California as Amicus Curiae on behalf of Defendant and Respondent.

Catherine L. Fisk for Labor Law Professors as Amicus Curiae on behalf of Defendant and Respondent.

Reich, Adell & Cvitan and J. David Sackman, Los Angeles, for Korean Immigrant Workers Alliance as Amicus Curiae on behalf of Defendant and Respondent.

DeCarlo, Connor & Shanley and Daniel M. Shanley, Los Angeles, for Southwest Regional Council of Carpenters as Amicus Curiae on behalf of Defendant and Respondent.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Manuel M. Medeiros, State Solicitor General, J. Matthew Rodriquez, Chief Assistant Attorney General, Louis Verdugo, Jr., Assistant Attorney General, Angela Sierra and Antonette Benita Cordero, Deputy Attorneys General, as Amici Curiae on behalf of Defendant and Respondent.

KENNARD, J.

[55 Cal.4th 1088

[290 P.3d 1118]

A supermarket owner sought a court injunction to prevent a labor union from picketing on the privately owned walkway in front of the only customer entrance to its store. In response, the union argued that two statutory provisions—Code of Civil Procedure section 527.3 (the Moscone Act) and Labor Code section 1138.1 (section 1138.1)—prohibited issuance of an injunction under these circumstances. The trial court denied relief, ruling that the supermarket owner had failed to satisfy section 1138.1 's requirements for obtaining an injunction against labor picketing.

The Court of Appeal reversed. It held that the walkway fronting the supermarket's entrance was not a public forum under the California Constitution's provision protecting liberty of speech (Cal. Const., art. I, § 2, subd. (a)), and therefore the store owner could regulate speech in that area. It further held that both the Moscone Act and section 1138.1, because they give speech regarding a labor dispute greater protection than speech on other subjects, violate the free speech guarantee of the federal Constitution's First Amendment and the equal protection guarantee of the federal Constitution's Fourteenth Amendment. This court granted the union's petition for review.

We agree with the Court of Appeal that the supermarket's privately owned entrance area is not a public forum under the California Constitution's liberty of speech provision. For this reason, a union's picketing activities in such a location do not have state constitutional protection. Those picketing activities do have statutory protection, however, under the Moscone Act and section 1138.1. We do not agree with the Court of Appeal that the Moscone Act and section 1138.1, which are components of a state statutory system for regulating labor relations, and which are modeled on federal law, run afoul of the federal constitutional prohibition on content discrimination in speech regulations. On this basis, we reverse the Court of Appeal's [150 Cal.Rptr.3d 504]judgment and remand the matter for further proceedings.

[55 Cal.4th 1089]I. Facts

Plaintiff Ralphs Grocery Company (Ralphs) owns and operates warehouse grocery stores under the name “Foods Co.” One such store is located in a retail development in Sacramento called College Square, which also contains restaurants and other stores. The College Square Foods Co store has only one entrance for customers. A paved walkway around 15 feet wide extends outward from the building's south side, where the customer entrance is located, to a driving lane that separates the walkway from the store's parking lot, which also serves customers of other retail establishments within College Square.

When the College Square Foods Co store opened in July 2007, agents of defendant United Food and Commercial Workers Union Local 8 (the Union) began picketing the store, encouraging people not to shop there because the store's employees were not represented by a union and did not have a collective bargaining agreement. The Union's agents, in numbers varying between four and eight, walked back and forth on the entrance walkway carrying picket signs, speaking to customers, and handing out flyers. These activities generally occurred five days a week (Wednesday through Sunday) for eight hours a day. The Union's agents did not impede customer access to the store.

In January 2008, Ralphs notified the Union in writing of its regulations for speech at its Foods Co stores, including the one in College Square. Those store regulations prohibit speech activities within 20 feet of the store's

[290 P.3d 1119]

entrance and prohibit all such activities during specified hours and for a week before certain designated holidays. The store regulations also prohibit physical contact with any person, the distribution of literature, and the display of any sign larger than two feet by three feet. The Union's agents did not adhere to Ralphs's speech regulations. In particular, they handed out flyers and stood within five feet of the store's entrance. Ralphs asked the Sacramento Police Department to remove the Union's agents from the College Square Foods Co store, but the police declined to do so without a court order.

In April 2008, Ralphs filed a complaint in Sacramento County Superior Court alleging that the Union's agents, by using the walkway fronting the College Square Foods Co store as a forum for expressive activity without complying with Ralphs's speech regulations, were trespassing on its property. Among other forms of relief, Ralphs sought a temporary restraining order, a preliminary injunction, and a permanent injunction barring the Union's agents from using the College Square Foods Co store property to express their views without complying with Ralphs's regulations prohibiting certain speech activities on its property.

[55 Cal.4th 1090]Although the trial court denied Ralphs's request for a temporary restraining order, it issued an order to show cause and set an evidentiary hearing on the application for a preliminary injunction. In response, the Union argued that the Moscone Act, as construed by this court in Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317, 158 Cal.Rptr. 370, 599 P.2d 676( Sears ), barred the court from enjoining peaceful picketing on a privately owned walkway in front of a retail store entrance during a labor dispute, and that Ralphs was not able to satisfy section 1138.1 's procedural requirements for injunctions against union picketing.

[150 Cal.Rptr.3d 505]On May 28, 2008, the trial court ruled that the Moscone Act violates the federal Constitution's First and Fourteenth Amendments because it favors labor speech over speech on other subjects. In reaching that conclusion, the trial court found persuasive the reasoning of the federal Court of Appeals for the District of Columbia Circuit in Waremart Foods v. N.L.R.B. (D.C.Cir.2004) 354 F.3d 870 (Waremart/N.L.R.B.). Regarding section 1138.1, the trial court said it would have found that statute to be unconstitutional as well had it not considered itself bound by a California Court of Appeal's decision, Waremart Foods v. United Food & Commercial Workers Union (2001) 87 Cal.App.4th 145, 104 Cal.Rptr.2d 359 (Waremart/United Food ), which held that section 1138.1 does not violate the federal or state constitutional equal protection guarantees. (Waremart/United Food was decided by the Third District Court of Appeal, which also decided this case.) The trial court ordered that an evidentiary hearing be held under section 1138.1 to determine whether Ralphs was entitled to the requested injunctive relief.

After conducting the evidentiary hearing, the trial court denied Ralphs's motion for a preliminary injunction. The court found that Ralphs had “failed to introduce evidence sufficient to carry its burden on any of the factors enumerated in section 1138.1.” In particular, the court...

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  • Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8
    • United States
    • California Supreme Court
    • 27 de dezembro de 2012
    ...55 Cal.4th 1083290 P.3d 1116150 Cal.Rptr.3d 501RALPHS GROCERY COMPANY, Plaintiff and Appellant,v.UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 8, Defendant and Respondent.No. S185544.Supreme Court of CaliforniaDec. 27, See 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment......

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