Union Access To Private Property: California Supreme Court Rules Shopping Malls Cannot Prohibit Union Protesters From Urging Boycott Of Stores
The California Supreme Court recently ruled in a 4-3
decision that a privately owned shopping mall could not
restrict union members from peacefully handbilling on its
property in connection with a labor dispute, even though the
handbilling was designed to cause a consumer boycott of one of
the mall's tenants. Fashion Valley Mall, LLC v.
NLRB, 172 P.3d 742 (Cal. 2007). Writing to answer a
question certified to the state court by a U.S. Court of
Appeals, Justice Carlos R. Moreno said that under the
California Constitution, a large shopping mall is a
"public forum," and that mall managers cannot
prohibit speech based on its content. The Court said that as
long as the protesters do not disrupt a business or physically
interfere with shoppers, the right of free speech outweighs the
mall's right to protect its tenants' profits. The
ruling follows a 1979 California Supreme Court decision that
found that large shopping malls are public forums in which
people's free speech rights are protected by the California
Constitution. Robins v. Pruneyard Shopping Center, 592
P.2d 341 (1979), aff'd, 447 U.S. 74 (1980). The
United States Court of Appeals for the District of Columbia
refused to review the decision, including U.S. Constitutional
arguments raised initially on appeal to the Circuit Court, and
granted the NLRB's cross-application for enforcement.
Fashion Valley Mall, LLC v. NLRB, 524 F.3d 1378 (D.C.
Cir. 2008).
The decision in Fashion Valley has potentially
wide-range implications for California employers and owners of
private property who encourage, invite, or permit members of
the general public to come upon their property. Indeed, owners
of private property that may be deemed to be a "public
forum," such as a large shopping mall, who attempt to
restrict or regulate speech on their property based on content,
may be in violation of the California Constitution as decided
by the California Supreme Court in Fashion Valley.
Facts Giving Rise to the Dispute
The Fashion Valley case arose out of a protest at
the Fashion Valley Mall (the "Mall") in October 1998.
Pressroom employees of a California newspaper were involved in
a labor dispute with their employer, the San Diego
Union-Tribune, following the expiration of their
collective bargaining agreement. With contract negotiations at
a standstill, the union tried to put pressure on the newspaper
by distributing leaflets urging a boycott of Robinsons-May, a
store that advertised in the paper and had a store in the Mall.
Approximately 30 to 40 members of Graphic Communications
International Union Local 432-M came to the Mall, stood outside
the department store, and handed out leaflets to individuals on
the Mall's premises. The union leaflets stated that
Robinsons-May advertised in the San Diego
Union-Tribune, and urged store customers who believed that
employees should be treated "fairly" to contact the
newspaper's chief executive officer and not to patronize
Robinsons-May.
The Mall maintained a policy that required parties that
wished to engage in "expressive activity" on its
premises to obtain a permit and required applicants to request
the permit five business days prior to the activity. In
addition, permits would be issued only if the requesting party
agreed to abide by the Mall's rules, including a rule
against interfering with the business of a Mall tenant and a
prohibition on "[u]rging, or encouraging in any manner,
customers not to purchase the merchandise or services offered
by one or more of the stores or merchants in the shopping
center." 172 P.3d at 744.
Shortly after the union members began distributing their
handbills, Mall officials notified the union protesters that
they were trespassing on Fashion Valley property because they
failed to obtain a permit from the Mall management company.
When they were warned that they would be subject to "civil
litigation and/or arrest" if they did not leave the Mall,
the union members moved to public property near the Mall
entrance.
Thereafter, the union filed an unfair labor practice charge
with the National Labor Relations Board ("NLRB"),
alleging that by refusing to allow the leafletting in front of
Robinsons-May, the Mall owners interfered with the union
members' rights, in violation of section 8(a)(1) of the
National Labor Relations Act ("NLRA"), 29 U.S.C.
§ 158(a)(1).
NLRB Found Ban Unlawful; Fashion Valley Appeals to
D.C. Circuit
An NLRB administrative law judge found that the union
members were engaged in peaceful handbilling to publicize their
primary labor dispute with the Union-Tribune and that
such activity was a lawful secondary activity under the NLRA.
Fashion Valley appealed the administrative law judge's
decision to the NLRB. The Board concluded that the Mall
violated the statute both by maintaining the anti-boycott rule
and by enforcing the rule by requiring application for a permit
that forbids lawful activity, and held that "California
law permits the exercise of speech and petitioning in private
shopping centers, subject to reasonable time, place, and manner
rules adopted by the property owner."...
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