So there’s free speech and then there’s Extra Special Free Speech!

file0001719225336Another case that has provoked interest in audiences for my 2013 Employment Law Updates is Ralph’s Grocery Co. v. UFCW Union Local 8. In this case, the California Supreme Court held that labor unions can picket on private property.

In Ralph’s, a Sacramento-area warehouse grocery store employed workers not represented by a labor union. UFCW Union Local 8 began picketing the store’s only entrance to encourage people not to shop at the store. Ralph’s asked the union to stop and it refused. Ralph’s told the police that the union was trespassing on private property and asked the police to stop the picketing. The police refused to do so without a court order. Ralph’s sought a court order and the end result is this case.

The reason the case is so interesting is that it gives labor union speech more protection than other speech – such as picketing to object to genetically modified foods, or to ask for donations to support a cause.

Before this case, labor unions already had a special exemption under California’s trespass prohibitions for lawful union activities. Union agents have a right to access private property if union members are on-site and working pursuant to a valid collective bargaining agreement or other union agreement for that site. Agents have a right to come onto the property, police the union agreement, prepare steward’s reports, and conduct workplace safety inspections. This exception to the general trespass rule arises, however, only if there is a valid union agreement in place.

In Ralph’s, the Court expanded union rights on private property. The Court agreed that the area in front of the store was not a “public forum” (a public area where free speech is usually protected) and there was no labor agreement in place. Usually, this would mean that the union would not be entitled to the constitutional free speech protection. But the Court held that the activity was entitled protection under California labor laws that do not allow a court to enjoin peaceful labor picketing.

A lower court found that these labor laws made union speech “more protected speech” than other speech – about your fundraising efforts, about your church, about girl scout cookies – which seems to be against the very nature of the free speech and equal protection guarantees in the U.S. Constitution. But the California Supreme Court found that labor-related speech can be afforded extra protection without violating the U.S. Constitution. Based on this ruling, a labor union may “peacefully” picket on private property without the owner’s permission. But get permission to sell those cookies.

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