CALIFORNIA’S NEW INJUNCTION LAWS STRENGTHEN WORKERS’ RIGHT TO PICKET
November 13, 2000 by Beeson Tayer & Bodine
In our December 1999 newsletter we noted the enactment of new Labor Code provisions aimed at strengthening workers’ right to picket. The first appellate court decision discussing the new laws, United Food and Commercial Workers Union, Local 324 v. Superior Court of Los Angeles County, 83 Cal.App.4th 566 (August 30, 2000), has been issued and it appears their aim is true. In the wake of that decision, a closer look at the statutes’ provisions is warranted.
Modeled after the federal Norris-LaGuardia Act of 1932, California’s little Norris-LaGuardia Act comprises Labor Code §§ 1138 through 1138.4 and strengthens workers’ right to picket by making it more difficult for employers to enjoin peaceful picketing. Indeed, the laws signal a new day in many respects.
For instance, Labor Code § 1138.2 provides that before any injunction can issue, the court must first find that the employer made every reasonable effort to settle the labor dispute before seeking injunctive relief. This will force employers to turn first to negotiating with unions rather than running to court to undermine the picketing through the legal process.
Another important aspect of the new Labor Code provisions concerns who may be enjoined. Previously any party who participated, authorized or ratified an unlawful act could be subject to the injunction. Ratification by the union was often inferred through post-event conduct such as failing to discipline unruly picketers. Thus, a union could be subject to an injunction based on events that it did not know of, participate in or authorize if it is later found to “ratify” the unlawful act. Under the new law an injunction may issue only against those “making the threat or committing the unlawful act or actually authorized those acts.” L.C. § 1138.1(a)(1). In addition, Labor Code § 1138 limits liability for unlawful acts to those “individual officers, members, or agents” who, “upon clear proof,” are shown to have actually participated in or actually authorized the unlawful acts. Unions should argue that before they may be held liable, the employers must present evidence of prior knowledge and consent and furthermore, that such cannot be inferred through subsequent conduct.
Labor Code § 1138.1 makes even more changes. It provides that no injunction can issue without a hearing in open court. This is a dramatic change as in the past employers went to court and had injunctions issued behind closed chambers doors based upon form affidavits and declarations. Now, “no court of this state shall have authority to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, except after hearing the testimony of witnesses in open court, with the opportunity for cross examination.” L.C. § 1138.1(a). With this new requirement not only will there be a fuller and more credible recitation of facts and, therefore, fewer injunctions issued, but also any injunctions that are issued will undoubtedly be delayed as unions will be entitled to adequate court time to examine the employer’s evidence. Perhaps the most significant change § 1138.1ushers in is its requirement that the court, before issuing any injunction, make a finding that “the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection.” L.C. § 1138.1(a)(5). This has several components. It requires the employer to notify the relevant police department of its intent to seek an injunction. L.C. § 1138.1(b). It also requires the employer to present evidence in open court showing that the police cannot or will not maintain peace. While employers will resort to “lesser” evidence such as evidence of damage, injury, and police call response times to satisfy the requirement, the court in United Food and Commercial Workers Union, Local 324 stated that “the statute contemplates input from law enforcement officials which will assist the trial court in determining law enforcement’s willingness and ability to provide adequate protection in a given fact situation.” Thus, unions should argue that the employer must present a high-ranking police officer to provide such testimony. A difficult task to say the least.
As suggested above, it is the “unwilling or unable” factor on which the California Court of Appeal of the Second Appellate District focused when it became the first appellate court to interpret California’s Little Norris-LaGuardia Act in United Food and Commercial Workers Union, Local 324. That case arose with the opening in May 1999 of a non-union grocery store by Gigante USA, Inc. in the Southern California town of Pico Rivera. Two UFCW locals picketed the store protesting its failure to pay union wages and benefits and Gigante went to court to enjoin the picketing. The trial court granted a temporary restraining order and the parties stipulated to a preliminary injunction.
After the new laws took effect on January 1, 2000, the locals went back to court to dissolve the preliminary injunction. The trial court refused and the locals appealed.
On review, the appellate court found the preliminary injunction improper as Gigante had not shown that law enforcement was either unwilling or unable to provide adequate protection. The court noted that there had been no injuries or property damage and Gigante had not presented any officer to say that the police were unwilling or unable to protect the peace. Thus, the preliminary injunction was dissolved and Gigante was barred from seeking a permanent injunction. It is worth noting that after the locals succeeded in dissolving the injunction, the grocery store was sold and today operates as a union workplace.
As evidenced by the victory in United Food and Commercial Workers Union, Local 324, the enactment of California’s Little Norris-LaGuardia Act, Labor Code §§ 1138 through 1138.4, signals the dawning of a new day in California that unions should seize to win greater rights and better working conditions for their members.
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