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    Calif. Supreme Court to Review Ralphs v. UFCW

    Decision could mean enhanced rights for retailers subject to union protests

    On Oct. 3, the California Supreme Court will hear oral arguments in its review of Ralphs Grocery v. United Food and Commercial Workers Union, which is related to an earlier ruling by the California Court of Appeals that overturned a trial court’s denial of injunction in July 2010, requested by The Kroger Co.’s California-based Ralphs division to prevent the UFCW from picketing on the grocer’s property at its store in Sacramento.

    According to published reports, after negotiations between Ralphs and the UFCW failed, union members began picketing and handing out flyers in front of the grocer’s main entrance and encouraged patrons to shop elsewhere. After Ralphs’ repeated requests for picketers to move off of its property were ignored, the grocer filed suit for injunctive relief citing trespass, which was subsequently denied based upon the grocer’s classification as a “public forum.”

    Upon Ralphs’ request for an appeal, the California Court of Appeals overturned the decision and granted Ralphs a preliminary injunction on the grounds that the Calif. Labor Code Section 1138.1 and the Moscone Act – two Golden State laws that severely limit courts’ ability to issue injunctions against labor activity – were unconstitutional under the First and Fourteenth Amendments of the United States Constitution.

    According to John Douglas, partner at San Francisco-based Foley & Lardner’s Labor & Employment practice, if the Supreme Court upholds the appeal, retailers will gain a significant asset in preventing labor protesting on company property.

    “The Moscone Act has long been used by unions to assert a right to preferential treatment for union-related speech on the premises of employers who invite the public onto their premises for purposes of engaging in business,” such as freestanding retailers and grocery stores, Douglas told Progressive Grocer. “If the Act is found to unconstitutionally rely on content-based distinctions in speech - as it should - a significant weapon in labor's arsenal that has been used to harass employers will be rendered ineffective.”

    Based upon the groundbreaking nature of the case and the likelihood that the laws’ unconstitutionality will be upheld, labor organizations are anticipating an overhaul of retailers’ and union rights, particularly of those locked in labor disputes.

    “If the Moscone Act, and, by implication/extension, criminal trespass exemptions for speech related to labor disputes is overturned,” Douglas continued, “management will have a much stronger hand in excluding labor organizers/protestors from their premises.” Further, he said, the NLRB “seems to be anticipating these state laws being overturned,” although the board “has recently been taking much more aggressive views of the rights of off duty employees -- including those on strike -- to come onto an employer's property.”

    If the laws in question are deemed constitutional by the California Supreme Court on Oct. 3, the case will likely be presented before the U.S. Supreme Court.

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