Vol. 28 No. 13 – Peaceful Labor Picketers Cannot Be Removed From Private Property By Police Unless the Picketers’ Activity Includes Unlawful Conduct


In 2012, the California Supreme Court, in Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8, 55 Cal. 4th 1083, upheld the constitutionality of two state laws that protect a union’s right to peacefully picket on private property. On June 10, 2013, the United States Supreme Court denied review of that decision and, as a result, law enforcement cannot assist private property owners in their request to eject peaceful union picketers from their property, in the absence of some unlawful picketer activity.


Ralphs Grocery Co. owns a non-unionized store in Sacramento, CA. Upon its opening for business, in 2007, agents of the United Food & Commercial Workers’ Union (Union) began picketing the store, at its entrance walkway, with signs and flyers in violation of Ralphs’ policy regarding speech activities at its stores.  The picketing continued for eight hours a day, five days per week, but did not impede customer’s access to the store.

Ralphs asked Sacramento police to remove the picketers, but the police declined to do so without a court order. Thereafter, Ralphs sought an injunction against the Union which, if granted, would permit police to eject the picketers from their private property. The Union argued that (1) Code of Civil Procedure Section 527.3 (the Moscone Act) prohibited a court from enjoining peaceful picketing on a private walkway in front of a retail store entrance during a labor dispute and, (2) that Ralphs had failed to satisfy the procedural requirements of Labor Code Section 1138.1 to enjoin the picketing.

The trial court ruled that the Moscone Act was unconstitutional because it favored labor speech over other speech. The Act states, in part, that “The acts enumerated in this subdivision, whether performed singly or in concert, shall be legal, and no court, nor any judge nor judges thereof, shall have jurisdiction to issue any restraining order or preliminary or permanent injunction which, in specific or general terms, prohibits any person or persons, whether singly or in concert, from doing any of the following:

(1) Giving publicity to, and obtaining or communicating information regarding the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, or by any other method not involving fraud, violence or breach of the peace. (2) Peaceful picketing or patrolling involving any labor dispute, whether engaged in singly or in numbers. 3) Assembling peaceably to do any of the acts specified in paragraphs (1) and (2) or to promote lawful interests.”

However, the trial court declined to enjoin the picketing because Ralphs failed to carry its burden under Labor Code Section 1138.1 which requires showing:  “(1) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained . . . . (2) That substantial and irreparable injury to complainant’s property will follow. (3) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief. (4) That complainant has no adequate remedy at law. (5) That the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection.”

The Court of Appeal reversed, holding 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.” The California Supreme Court reviewed the Court of Appeal’s finding, on the constitutionality of these two California statutes, and reversed its decision, holding that both statutes are constitutional.

Peaceful Union Speech On Private Property Outside Retail Stores Cannot Be Abridged During A Labor Dispute.

The Supreme Court stated that “(w)e 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.”  (Emphasis in original.)

Furthermore, “(w)e 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 judgment and remand the matter for further

Generally speaking, and based on prior court decisions, the areas in front of the entrances to individual stores located within shopping centers are not public forums for purposes of the state Constitution‘s provision regarding liberty of speech. However, as stated above, the Moscone Act, a state statute, provides that certain activities undertaken during a labor dispute are legal and cannot be enjoined, including peaceful picketing in “any place where any person or persons may lawfully be.”

Additionally, the Court held that the Constitution does not require speech regulations, like the Moscone Act and Labor Code Section 1138.1, to be absolutly content neutral. Rather, the content-based regulation must be justified by legitimate concerns that are unrelated to any disagreement with the message conveyed by the speech.

The California Supreme Court discusses numerous state and federal decisions which give more protection to labor related speech, than other speech in general and states, “it is well settled that statutory law — state and federal — may single out labor-related speech for particular protection or regulation, in the context of a statutory system of economic regulation of labor relations, without violating the federal Constitution.”

Accordingly, the state laws that protect the Union’s right to picket on Ralphs’ private property are justified by the state’s interest in promoting collective bargaining. For these reasons, the California Supreme Court held that state laws that protect peaceful union picketing on private property outside a targeted retail store, during a labor dispute, are constitutional. As such, neither California courts, nor California police can order peaceful picketers to leave private property during a labor dispute.


Police are often summoned by retail stores to eject individuals who are engaging in speech activities on company property to enforce the company’s right to be free from unwelcome trespassers. It should be noted that the Ralphs decision is limited to situations involving peaceful demonstrations regarding labor disputes only.

If such a peaceful demonstration is being conducted, as part of a labor dispute, and no criminal violation is occurring, local law enforcement is not authorized, under California law, to remove those demonstrators. However, a demonstration involving a labor dispute that is violent, destructive to property, threatening to the company or to customers, impedes customer access, or otherwise violates the law can be enjoined by the courts and/or stopped by police.

It should be remembered that the Moscone Act and Labor Code 1138.1 do not protect an individual’s right to engage in speech activities unrelated to a labor dispute. For example, distributing religious literature or soliciting signatures for a ballot measure are unrelated to a labor dispute and could be enjoined by courts.

In this situation, as with all legal issues, we urge that you confer with your agency’s counsel and secure legal advice and guidance on how to proceed.  As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446-1400 or via email atmjm@jones-mayer.com.

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