U.S. Chamber of Commerce Publishes Guide on “Sabotage, Stalking & Stealth Exemptions: Special State Laws for Labor Unions” – California Is Featured

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I was pleased to see that the U.S. Chamber of Commerce released a report on August 10, 2012 through its “Workforce Freedom Initiative” on a fairly obscure topic that is usually left to the National Right to Work Committee and its research wing, the National Institute for Labor Relations Research: special exemptions from prosecution for union officials when their actions normally regarded as crimes are committed in the context of “lawful labor union activity” protected by the National Labor Relations Act (NLRA) or state labor relations laws (such as California’s Agricultural Labor Relations Act).

“Sabotage, Stalking & Stealth Exemptions: Special State Laws for Labor Unions” concludes that “The most glaring examples of union favoritism under state laws tend to occur in criminal statutes and allow individuals who engage in truly objectionable behavior to avoid prosecution solely because they are participating in some form of labor activity.”

As you might guess, much of this report focuses on California laws, in particular laws that compromise private property rights when union officials are trespassing on private property on union business. It cites several examples:

  • criminal trespass and trespassing laws in California Penal Code Section 602 that do not apply to “persons engaged in lawful labor union activities”
  • rules in California Penal Code Section 640 against willfully blocking the free movement of another person in a public transportation system facility or vehicle except when related to “collective bargaining, labor relations, or labor disputes”
  • criminal laws in California Penal Code Section 420.1 against preventing, hindering, or obstructing someone from entering, leaving, or passing through land, except when the perpetrator is engaged in “lawful labor union activities”
  • laws in California Penal Code Section 552.1 criminalizing trespassing on or loitering at industrial facilities, except when people are lawfully “engaging in any organizational effort on behalf of any labor union, agent, or member thereof, or of any employee group, or any member thereof, employed or formerly employed in any place of business or manufacturing establishment described in this article, or for the purpose of carrying on the lawful activities of labor unions, or members thereof” or acting for the “purpose of investigation of the safety of working conditions on posted property by a representative of a labor union or other employee group who has upon his person written evidence of due authorization by his labor union or employee group to make such investigation.”

I’ve been told by management-oriented labor law attorneys that the “lawful labor union activities” in the California Penal Code are often raised by unions as a justification to trespass, but these exemptions generally pertain to union officials who have a valid claim to observe working conditions and monitor an employer’s compliance with a collective bargaining agreement (or a Project Labor Agreement).

Here is some additional information to flesh out some of the California examples in this guide:

Restraining Orders and Preliminary and Permanent Injunctions

The report dedicates a few paragraphs to the Ralphs Grocery v. United Food & Commercial Workers Union cases now to be considered at the California Supreme Court. These cases deal with two union privileges in state law that the U.S. Chamber of Commerce report does not specifically cite. Here’s a bit more detail:

On July 19, 2010, the California Third Appellate Court issued a decision invalidating the so-called Moscone Act, signed into law by Governor Jerry Brown in 1975, that limited the ability of state courts to issue any restraining order or preliminary or permanent injunction to stop a variety of actions related to labor disputes. (The Moscone Act is California Code of Civil Procedure Section 527.3.) This decision on a rather obscure topic actually generated an article in a major California newspaper: the July 20, 2010 San Francisco Chronicle: Pro-Union Law Struck Down by Appeals Court.

To summarize very crudely in layman’s terms, the court determined that the owner of private property with some degree of public access (such as a grocery store) can get an injunction from a state court to stop peaceful speech activity (such as picketing and handing out flyers) on that private property even when it is related to a labor dispute.

The appeals court also declared a second labor law to be invalid: California Labor Code Section 1138.1, which was part of Assembly Bill 1268, signed into law by Governor Gray Davis in 1999. This bill declared that unions and union officials and members were not responsible for unlawful acts committed by union members during labor disputes unless there was “clear proof of actual participation in, or actual authorization of those acts.” It also established very high standards for a court to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute.

The most informed and aggressive opponent of AB 1268 was my former employer, Associated Builders and Contractors (ABC) of California. It was one of ABC of California’s “Dirty Dozen Most Unwanted Bills of 1999” during the first year of the Gray Davis administration.

ABC of California asserted that AB 1268 would encourage violence during labor disputes. A contractor who was then a member of ABC testified against the bill in a committee hearing along with attorney Brad Newman (now with the Paul Hastings, LLP law firm in Palo Alto), who also submitted a 17-page brief during the April 21, 1999 hearing to the bill’s author, State Senator Shelia Kuehl, pointing out the bill was unconstitutional. He also submitted a follow-up brief on the amended version of the bill. (Mr. Newman was vindicated after eleven years!)  ABC of California also had its members send faxes to Governor Davis asking him to veto the bill. I spoke on a Modesto conservative radio talk show about the bill. The Contra Costa Times published an August 29, 1999 editorial opposed to it. Davis signed it anyway.

The California Fifth Appellate Court issued a similar decision striking down the Moscone Act and AB 1268 on January 27, 2011.

The United Food and Commercial Workers Union (UFCW) appealed both court decisions to the California Supreme Court. See information about the appeal of the Third Appeals Court decision to the California Supreme Court here and information about the appeal of the Fifth Appeals Court decision to the California Supreme Court here.

Warning to Employers: Unions Assert Special Rights to Trespass in California

I’ve been told by management-oriented labor law attorneys that California employers can best protect themselves against trespassing issues by treating union trespassers in the same way as other trespassers. They tell me that if an employer treats visitors, solicitors, lunch trucks, and tool trucks differently than union “visitors,” that inconsistency can be exploited by union lawyers.

In addition, “An employer clearly acts at his own peril if he effects a citizen’s arrest of a union visitor on private property in California.” This was the advice given in 2001 by a California management-oriented labor law attorney in the wake of the June 13, 2001 Ninth Circuit U.S. Court of Appeals decision in Radcliffe v. Rainbow Construction Company.

Indeed, union representatives who visit job sites sometimes come armed with letters from their union attorneys claiming that this court decision and other state laws allow union officials and “non-employee union organizers” to enter private property for the purpose of engaging in labor compliance and other “lawful labor union activity.” I have a collection of such letters.

There seems to be demand from California employers for a guide concerning union trespassing, including information on union access to workers to pressure them to sign of union authorization cards. In the meantime, if your company is having problems with union officials and union organizers trespassing on your property or job site, you should consult with a management-oriented labor law attorney before you take any action.

Additional Coverage of This Guide:

States Exempt Labor Unions from Stalking, Trespassing Laws – August 10, 2012 – The Foundry: Conservative Policy News Blog of The Heritage Foundation

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