NLRB: Unions can Picket on Private Walkways in California

After a grocery store opened a warehouse grocery store under a different name in Sacramento, California, the store became a target for union picketing. The United Food and Commercial Workers Union Local 8 began picketing the store because the workers were not represented by a union and did not have a collective bargaining agreement. The Union agents held signs and distributed fliers in front of the store’s entrance and walkways, but did not impede customer access to the store. The grocery store contacted the Sacramento Police Department to remove the Union agents, but the police declined to do so without a court order.

Later, the grocery store filed a complaint in Sacramento County Superior Court alleging that the Union agents, by using the walkway fronting the store as a forum for expressive activity were trespassing, and sought an injunction to bar picketing at the location. The trial court denied the request for an injunction by applying the Moscone Act and Labor Code Section 1138.1, and finding no evidence that the Union committed any unlawful act, nor threatened to do so. Furthermore, the trial court determined that the Union pickers were not doing anything to cause “substantial or irreparable injury” to the store property. The grocery store appealed.

The California Court of Appeals reversed and remanded. The Court of Appeals determined that the entrance area of the store was not designed and presented to the public as a public meeting place, and therefore did not constitute a public forum under the state Constitution’s liberty of speech provision. Since these areas did not constitute a public forum, the grocery store could limit the speech and could exclude anyone desiring to engage in protected speech. Furthermore, the Court of Appeals concluded that both the Moscone Act and Labor Code section 1138.1 violated the United States Constitution’s First and 14th Amendments because they gave speech about labor disputes greater protection than speech on other issues, thereby permitting content-based speech distinctions.

The matter was then appealed to the California State Supreme Court which reversed and affirmed in part. The Court agreed that the entryway of the store was not a public forum and therefore not an area that enjoyed constitutionally-protected free speech rights. The Court reasoned that “to be a public forum under our state Constitution’s liberty-of-speech provision, an area within a shopping center must be designed and furnished in a way that induces shoppers to congregate for purposes of entertainment, relaxation, or conversation, and not merely to walk to or from a parking area, or to walk from one store to another.”

At the same time, however, the Court recognized that the picketing activities have statutory protection under the Moscone Act and Labor Code, and declined to follow the Court of Appeals’ rationale concerning these particular provisions. Indeed, the Court noted that these state laws were modeled after the federal Norris-LaGuardia Act, and are components of a state system designed to regulate labor relations. Thus, it reversed the Court of Appeal’s judgment and remanded the matter for further proceedings in line with that determination.

Employers — particularly those who operate retail establishments or others in similarly-situated locations — should be mindful of the fact that public walkways may quite possibly constitute a “public form” for the purposes of speech, and should take caution as labor efforts may expand activities closer to employers’ private properties.