Clerical workers picket during a strike at the Port of Los Angeles in November. (Mark Boster / Los Angeles…)
Signature gatherers and protesters may be ejected from privately owned walkways outside a store, but labor unions may picket there peacefully, the California Supreme Court decided Thursday.
The state high court unanimously agreed that private walkways in front of stores, unlike public areas in shopping malls, are not open forums accessible to anyone who wants to assemble to express a view. But the justices split, 6 to 1, in upholding two state laws that prevent courts from issuing injunctions against peaceful labor pickets on private property.
The laws protecting labor pickets are justified "by the state's interest in promoting collective bargaining to resolve labor disputes," Justice Joyce L. Kennard wrote for the court
California "may single out labor-related speech for particular protection or regulation" as an exercise in the economic regulation of labor relations, Kennard wrote.
Lawyers said the ruling would give stores greater freedom to remove demonstrators near their entrances but also would embolden labor unions to post pickets at doorways.
The ruling stemmed from a dispute over pickets at a Ralphs grocery store in Sacramento. Union members stood by the store entrance passing out leaflets to protest the fact that employees were not unionized.
The store had a policy of preventing demonstrators from coming within 20 feet of the entrance and asked a court to evict the pickets as trespassers.
A trial judge refused, but an appeals court struck down the two state picket protections. The appellate court said the laws unconstitutionally favored communications by labor over other kinds of speech.
Richard McCracken, whose law firm represented a union in the case decided Thursday, said the appeals court decision had "muted" labor activities in California. He predicted that unions would now have "a much greater appetite" to post pickets at private doorways "because there will be less fear of entanglement in expensive litigation."
Miriam A. Vogel, who represented Ralphs Grocery Co. in the case, said Thursday's ruling might be appealed to the U.S. Supreme Court.
"We have two statutes that favor labor unions in a way the prevents property owners from getting any relief," said Vogel, a former appeals court justice who is now in private practice.
Although most of the justices upheld the constitutionality of the labor laws, they split in their advice to lower courts on how to enforce them.
Chief Justice Tani Cantil-Sakauye, joined by two of the court's conservatives, stressed in a concurring opinion that businesses may establish rules to prevent pickets from bothering customers.
Picketing inside stores is clearly not permissible, and businesses also may restrict the sound level of picketers and the number and size of signs they carry, the chief justice wrote.
"Labor must abide by the owner's rules and policies ... to prevent unlawful interference with the business, despite the fact that the limits imposed by the owner may reduce labor's ability to communicate its message," the chief justice wrote, joined by Justices Marvin R. Baxter and Carol A. Corrigan.
Justice Goodwin Liu , in a separate concurring opinion with Justice Kathryn Mickle Werdegar, said Cantil-Sakauye's admonitions would invite litigants to use courts to solve labor disputes, even though the laws were passed to avoid that outcome.
How is a lower court to decide which size of sign or level of volume is permissible? Liu asked.
"Any suggestion that courts should defer to restrictions imposed by a business owner or treat such restrictions as a starting point for assessing what is lawful finds no support in the Moscone Act," one of the laws at issue, Liu wrote. " The statute does not mention such restrictions or remotely hint that labor picketers must adhere to such restrictions."
Liu advised lower courts instead to rely on a close reading of the laws themselves.
Justice Ming W. Chin dissented, raising doubts about the constitutionality of laws that permit only one group to express its views on private property.
The ruling "apparently means, for example, that nurses can picket on clinics' parking lots and walkways — including, presumably, protesting against being required to aid in providing abortion services — but antiabortion protesters, and others with their own message, may not do so," Chin argued.
Chin contended that the ruling "places California on a collision course with the federal courts."
"It is far from clear to me that the high court would permit California to discriminate in this way between labor-related speech and all other speech, " Chin wrote.