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Calif. appeals court sides with grocery store in picketing dispute

By Jessica M. Karmasek | Feb 1, 2011


SACRAMENTO, Calif. (Legal Newsline) - A California appeals court has ruled that two state laws protecting labor picketing violate constitutional protections of free speech.

The states' Fifth Appellate District Court, in an 11-page opinion filed Thursday, agreed with the plaintiff, Ralphs Grocery Company, and reversed the order of a lower court and remanded the case.

The Superior Court of Fresno County previously ordered that the plaintiff's request for a preliminary injunction be denied.

Ralphs Grocery Company operates a large grocery store in Fresno under the name Foods Co. The employees of the store are not under a union contract.

Beginning in October 2008, non-employee representatives of the defendant, United Food and Commercial Workers Union Local 8, began an informational picket line in front of the Foods Co. store.

The picketing allegedly involved carrying placards, distributing leaflets, and trying to tell shoppers that the store's workers were not receiving the benefits they would under a union contract.

There were other allegations of confrontations between picketers and store employees, and of occasional aggressive efforts by picketers to give handbills to customers who didn't want them.

The grocery store owner also alleged that the picketers refused to obey its rules and that the police department was unwilling to remove the picketers from the property. The owner subsequently filed a complaint in February 2009 for declaratory and injunctive relief and for damages arising from the union picketers' continued presence.

The plaintiff sought a preliminary injunction to prevent the union from "directly or indirectly using Foods Co. private property for any expressive activity at a time or place or in a manner prohibited by Foods Co.'s Rules."

The superior court, in its ruling, concluded that two statutes -- Code of Civil Procedure section 527.3 and Labor Code section 1138.1 -- precluded it from issuing a preliminary injunction. The store owner appealed.

Former California Attorney General and current Gov. Jerry Brown had filed an amicus brief on behalf of the food workers union.

Associate Justice Jennifer R.S. Detjen delivered the majority opinion of the appeals court.

The court said its concern is "with the state establishing a priority for particular speech based on its content."

It continued, "The point is not that labor speech is undeserving of legislative protection but, instead, that there is no compelling reason for the state to single it out as the only form of speech that can be exercised despite the objection of the owner of private property upon which the speech activity occurs."

The court concluded that the state may not act "to selectively create a free speech right applicable only to the few, while excluding all others, in the absence of a compelling state interest."

The union, for its part, contended that the plaintiff didn't meet the traditional requirements for issuance of a preliminary injunction. It also contended that the plaintiff failed to offer any evidence to support a claim of irreparability of its potential injury from the picketing activities.

"These issues, as well as the various issues involved in issuing a permanent injunction, were not addressed by the trial court," the appeals court wrote.

"It is appropriate to remand this matter for further hearing, at which the trial court will consider the requirements generally applicable to injunctions against allegations of continuing trespass."

Acting Presiding Justice Rebecca A. Wiseman dissented.

According to her seven-page opinion, she believes the union has a statutory right to picket on the property and doesn't need a constitutional right to do so.

"The majority opinion essentially concludes that, unless state law allows state courts to enjoin either all speech or no speech on private property at the owner's request, then the constitutional right to free expression of someone is being violated.

"This contention is not supported by existing constitutional principles. The challenged statutes do not burden anyone's speech. To the contrary, the effect of the statutes on the speakers at whom they are aimed, i.e., people involved in 'labor disputes,' is to prevent the suppression of their speech by injunction.

Wiseman continued, "The majority opinion apparently accepts appellant's view that there is no difference between a statute that selectively suppresses speech and a statute that selectively protects it. In my view, this position does not work."

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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