Dec. 27, 2012 California Supreme Court Allows Peaceful Picketing on an Employer’s Private Property

Yesterday, the California Supreme Court ruled that unions may engage in picketing on an employer’s private property during a labor dispute.  Importantly, however, the Supreme Court suggested that employers may adopt policies aimed at curbing picketing conduct that goes beyond peacefully publicizing a labor dispute, and that these polices would be relevant in determining whether the union’s conduct is unlawful.


In Ralphs Grocery Company v. United Food and Commercial Workers Union, the California Supreme Court considered whether Ralphs was required to let the UFCW engage in peaceful picketing directly in front of a Sacramento grocery store.  The dispute arose when Ralphs and UFCW reached an impasse in labor negotiations.  To enforce its demands, the union picketed the store, encouraging the public to boycott the store because it was a non-union store.  The union’s agents walked back and forth on Ralph’s privately owned sidewalk, carrying picket signs and handing out flyers.

The Court of Appeal had agreed with Ralphs that the union was illegally trespassing on private property.  In order to reach this conclusion, the Court of Appeal held that two California statutes which permitted the union’s actions by creating special protections for labor picketing (i.e., the Moscone Act and Labor Code section 1138.1), were unconstitutional because they favored speech related to labor disputes over speech related to other matters.  The Supreme Court reversed the Court of Appeal on this point.  The Supreme Court reasoned that these statutes are justified by the state’s interest in promoting collective bargaining to resolve labor disputes, and that union picketing is a component of the collective bargaining process.

There are positive aspects to the Supreme Court’s decision.  Specifically, the court held that a supermarket’s privately owned entrance area is not a “public forum,” such that a union has no constitutional right to picket there (but there is the statutory protection as explained above).  The Court noted that while a common area in a shopping center is a “public forum” that enjoys constitutional speech protection, areas outside an individual store entrance in a shopping center are not a “public forum.”  Further, the Supreme Court upheld the prohibition of gathering of signatures on private property in front of grocery and retail stores.

The seven Supreme Court justices were not uniform in their views on the issues presented in this case.  In fact, they expressed differing views as to what type of picketing is permitted on an employer’s private property during a labor dispute.  For example, the Chief Justice wrote a concurring opinion in which she noted that union picketing activities other than simply communicating the union’s grievances with the business would be unlawful.  Thus, she opined, conduct interfering with the business, such as going inside the business premises, patrolling a small area with more signs than necessary to publicize the dispute, and loud chanting that repels patrons, would be unlawful.  The Chief Justice also stated that business owners could create policies aimed at curbing labor conduct that exceeds the bounds of peaceful picketing as set forth in the Moscone Act, and that a union’s violation of these policies would be relevant evidence in injunction proceedings brought against a union.  Three of the other seven justices expressed agreement with these views, so a majority of the Supreme Court endorsed the viability of such policies.

What This Means

Employers should consider adopting a policy aimed at curbing unlawful union picketing during a labor dispute.  For example, such a policy might prohibit picketers from (1) going inside the employer’s facility, (2) making noise that interferes with the business, (3) blocking ingress or egress to the facility, (4) intimidating patrons or employees who are entering or exiting the facility, (5) placing too many picketers in a small area, and (6) holding large signs that block the view of the business signs or displays.

The California Supreme Court’s decision may not be the last word on this case, as Ralphs may appeal the decision to the United States Supreme Court on the ground that the two California statutes at issue violate the federal Constitution’s prohibition on content discrimination in speech regulations.  For now, however, employers should take the limited preventative measures allowed by this latest decision.   

This E-Update was authored by J. Rod Betts.  For more information, please contact Mr. Betts or any other Paul, Plevin attorney by calling (619) 237-5200.