©2026 Seyfarth Shaw LLP www.seyfarth.com 2026 Cal-Peculiarities | 423 In the other case, involving the same union and the same store employer, but in a different judicial district, the union used an “informational picket line” to tell shoppers that store workers were not unionized. Again, the statutes in question tied the hands of a judge who otherwise could enjoin the trespassing. The Court of Appeal in this second case also held the statutes unconstitutional, reasoning that there “is no compelling reason for the state to single [pro-union speech] out as the only form of speech that can be exercised despite the objection of the owner of private property upon which the speech activity occurs.”16 But then the California Supreme Court, in 2012, re-tilted the playing field in favor of unions by invalidating these appellate decisions and issuing its own decision.17 The Supreme Court upheld the constitutionality of the Moscone Act and section 1138.1 as being “justified by the state’s interest in promoting collective bargaining to resolve labor disputes, the recognition that union picketing is a component of the collective bargaining process, and the understanding that the area outside the entrance of the targeted business often is ‘the most effective point of persuasion.’” For support, the Supreme Court cited other laws protecting labor-related speech in the context of economic regulations, and U.S. Supreme Court decisions that “support the proposition that labor-related speech may be treated differently than speech on other topics.” A concurring opinion cited the portion of the Moscone Act that proscribes unlawful conduct—such as breach of the peace, disorderly conduct, and blocking of ingress and egress—to stress that the Moscone Act and section 1138.1 do not protect union conduct that involves violence or aims to harm businesses by using tactics that go beyond “persuasion of patrons to labor’s position.” The concurring opinion stated that using more signs or individuals in a small area than reasonably required to publicize a dispute would be unlawful. But since these legal observations are not part of the majority opinion, it is unclear how much weight lower courts will give them. In another development related to the privileged nature that California has conferred upon pro-union activities, the Court of Appeal, applying California’s constitutional protection of free speech to a private shopping mall, has held it was unconstitutional for the mall, having permitted union picketing of mall premises, to prohibit picketing by an animal rights’ organization that was protesting the practices of a pet shop located within the mall.18 Even with California’s strong statutory protections for union picketing, those protections do not extend to conduct that goes beyond peaceful persuasion. In a recent, unpublished decision, the Court of Appeal upheld a narrowly tailored injunction where mass picketing repeatedly blocked the sole entrance to an employer’s distribution center and escalated into threatening and violent behavior.19 The court relied on evidence that dozens of picketers formed human barricades, surrounded vehicles attempting to enter or exit, shouted profanities at employees, swung picket signs at workers, and damaged vehicles and property.20 The record also showed that law enforcement declined to intervene and that the union refused multiple requests to stop the conduct.21 On those facts, the court concluded that the employer satisfied Labor Code section 1138.1’s heightened requirements, and that the injunction addressed public safety and access concerns rather than the content of union speech.22 Although nonprecedential, this decision underscores that California courts will, in exceptional cases, permit carefully tailored injunctive relief when mass picketing crosses the line into unlawful and coercive conduct. 18.3 Attempts to Regulate the Private-Sector In a recent and still‑unfolding development, California attempted to extend the jurisdiction of the Public Employment Relations Board (“PERB”) into the private sector. In 2025, the Legislature enacted Assembly Bill 288 (AB 288), which purports to authorize PERB to adjudicate private‑sector representation petitions and unfair labor practice charges in circumstances in which the National Labor Relations Board (“NLRB”) is allegedly unable or unwilling to act. AB 288 functions as a “trigger” statute. It allows private‑sector employees and unions to petition PERB for relief if federal labor protections are repealed or narrowed or if the NLRB lacks a quorum, is deemed to have lost its independence, its enforcement authority is enjoined, or if there are significant delays in processing cases. Once
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