In helping unions, state Supreme Court makes like 9th Circuit

Dec. 29, 2013

By Chris Reed

In 2004, in a case involving union pickets on the property of a California grocery state, the U.S. Circuit Court of Appeals for the District of Columbia explicitly ruled that they had no special protections:

“This petition for judicial review of an order of the National Labor Relations Board, and the Board’s cross-petition for enforcement, turn on whether California law gives labor organizers a right to hand out leaflets in the privately-owned parking lot of a stand-alone grocery store. Because it was not clear where the Supreme Court of California stood on the subject, we certified two questions to it. The California court refused to decide the questions. It has therefore fallen upon this court to determine the meaning of California law, in light of the First Amendment to the Constitution. We hold that under California law, union organizers have no right to distribute literature on a stand-alone grocery store’s private property.”

That’s the very first paragraph. The D.C. appeals court is widely considered the second-most powerful court in the land because of its responsibility for “directly reviewing the decisions and rulemaking of many federal independent agencies of the United States government,” such as the NLRB.

But on Thursday, overturning a state appeals court ruling, the California Supreme Court found that state laws granting picket rights to union protesters in fact do give union protesters the right to rally on the property of California grocery stores. In her majority decision, Justice Joyce Kennard held the federal appeals court just didn’t understand that this wasn’t a First Amendment matter when it overturned the NLRB.

“In making that ruling, the [NLRB] had concluded that under California law the supermarket owner did not have a right to exclude union representatives from its property. (Waremart/N.L.R.B., at p. 872.) The board‘s conclusion was based in part on our state‘s Moscone Act, as construed by this court in Sears, supra, 25 Cal.3d 317. The federal appellate court disagreed with the board, holding that ―the union organizers had no right under California law to engage in handbilling on the privately-owned parking lot of WinCo‘s grocery store.‖ (Waremart/N.L.R.B., at p. 876.) Regarding the Moscone Act, the federal appellate court concluded, citing the United States Supreme Court‘s decisions in Mosley, supra, 408 U.S. 92, and in Carey, supra, 447 U.S. 455, that the act ―violates the First Amendment to the Constitution‖ insofar as it extends greater protection to speech regarding a labor dispute than to speech on other subjects. (Waremart/N.L.R.B., at pp. 874-875.)

“The analysis of the federal appellate decision in Waremart/N.L.R.B., supra, 354 F.3d 870, failed to recognize, however, that, as we explained earlier, neither the Moscone Act nor section 1138.1 of our state law restricts speech. Waremart/N.L.R.B.‘s analysis also failed to recognize that the United States Supreme Court‘s decisions in Mosley, supra, 408 U.S. 92, and Carey, supra, 447 U.S. 455, both involved laws restricting speech in a public forum, as opposed to the situation here, involving laws that do not restrict speech and are being applied on privately owned property that is not a public forum under the First Amendment. For these reasons, we do not consider Waremart/N.L.R.B. persuasive on the issues we address here.”

I am not a lawyer. And I understand that the California Supreme Court, while not considered hard left, has a long history of an expansive interpretation of union picket rights. But I bet plenty of people who read the passage above feel like this smacks of the 9th U.S. Circuit Court of Appeals, which has many judges who simply don’t care what the Constitution says, they know what they’re going to do.

Lawyer-blogger Glen Valenza of the Shaw Valenza law firm, which has offices in Sacramento and San Francisco, specializes in employment law, and has some high-profile clients, also struggles with Kennard’s opinion:

“The Supreme Court decided that two provisions of California law can protect labor picketing against trespass claims, even though the picketing occurred on private property – a parking lot and entrance to a Ralphs store.  The picketing would be allowed even if non-labor picketing would constitute a trespass.  The way the law allows this is by limiting the grounds under which courts will issue injunctions against picketing to narrow circumstances.  For good measure, the law makes it harder to prove those circumstances than other types of cases. 

“That sounds a lot like a First Amendment violation to me, because the government is picking and choosing what kind of speech is worthy of protection and what is not.”

And the First Amendment, which is generally considered the most important part of the Bill of Rights, sure as hell trumps an odd interpretation of California’s collective-bargaining laws. This passage from the appellate ruling that the California Supreme Court overturned makes that point better than I ever could:

“Laws which prohibit speech based on its content — or, in this case, based on the failure of the speech to address a ‘labor dispute’ — are presumptively invalid. (Simon & Shuster, Inc. v. Members of N.Y. State Crime Victims Bd. (1991) 502 U.S. 105, 116.) Such laws are permitted only if they serve a compelling state interest and are narrowly drawn to accomplish that interest. (Mosley, supra, 408 U.S. 92, 95.) The desire to provide the broadest forum for expression in labor disputes is not a compelling state interest. (Carey v. Brown, supra, 447 U.S. 455, 466.) 

“We conclude the state may not act to selectively create a free speech right applicable only to the few, while excluding all others, in the absence of a compelling state interest.”

So now even the California Supreme Court is firmly in labor’s camp. Great. Just great.

Things like this make me feel like buying Lotto tickets.