Fashion Valley Mall, LLC. v. N.L.R.B.

• Decision Date: 16 June 2006
• Docket Number: No. 04-1411.,No. 05-1039.,No. 05-1027.,04-1411.,05-1027.,05-1039.
• Citation: 451 F.3d 241
• Parties: FASHION VALLEY MALL, LLC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 241

451 F.3d 241

FASHION VALLEY MALL, LLC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 04-1411.

No. 05-1027.

No. 05-1039.

United States Court of Appeals, District of Columbia Circuit.

Argued December 13, 2005.

Decided June 16, 2006.

On Petitions for Review of an Order of the National Labor Relations Board.

William M. Lines argued the cause for petitioner Fashion Valley Mall, LLC. With him on the briefs was Theodore R. Scott.

Anne Marie Lofaso, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Arthur F. Rosenfeld, Acting General Counsel, Margery E. Lieber, Acting Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and David S. Habenstreit, Supervisory Attorney.

Before: GINSBURG, Chief Judge, and SENTELLE, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

Concurring opinion by Senior Circuit Judge WILLIAMS.

GINSBURG, Chief Judge.

Fashion Valley Mall, LLC, which is owned and operated by the Equitable Life Assurance Society and ITC Fashion Valley Corporation, allows individuals and organizations to engage in expressive activities on its premises if they first get a permit from the Mall. In order to receive a permit, a party must agree to abide by Fashion Valley's rules and regulations, which prohibit urging consumers to boycott any of the Mall's tenants. The National Labor Relations Board held Fashion Valley violated § 8(a)(1) of the National Labor Relations Act both by maintaining this requirement and by excluding from its premises certain union handbillers.

We hold that whether Fashion Valley violated the Act depends upon whether it had the right, under California law, to maintain and enforce its anti-boycott rule. Because the underlying question is one of state law as to which we can only speculate, we certify that question to the Supreme Court of California for an authoritative answer.

I. Background

Fashion Valley owns a large shopping mall in San Diego, California. The Company permits expressive activities by those who apply for a permit and agree to abide by its regulations. An applicant for a permit must state the purpose of the proposed expressive activity; submit a copy or a description of any materials and signs to be used; list the individual(s) who will participate; provide a $50.00 refundable cleaning deposit; purchase insurance as necessary; and, per Rule 5.6.2, agree to abstain from:

Urging, or encouraging in any manner, customers not to purchase the merchandise or services offered by any one or more of the stores or merchants in the shopping center.

In October 1998 approximately 30 "members and supporters" of the Graphic Communications International Union gathered outside the Robinsons-May department store at the Mall to protest actions taken by The San Diego Union-Tribune newspaper. The Union decided to stage to protest there because the store advertises in the paper and is located not far from the paper's premises.

The protestors distributed a handbill addressed "Dear customer of Robinsons-May" that outlined the Union's grievances against the newspaper while making clear "[t]o the employees of Robinsons-May . . . [the] dispute is with The San Diego Union-Tribune. We are not asking you to cease working for your employer." The Union encouraged patrons and employees only to "[c]all Gene Bell, CEO at the Union Tribune." In closing, the handbill mentioned that "Robinsons-May advertises with the Union-Tribune." After about 15 minutes a representative of Fashion Valley approached the protestors, explained that a permit was required for expressive activity, and told them to leave the premises, which they did.

Thereafter, instead of applying for a permit, the Union filed a charge with the Board alleging that Fashion Valley had violated § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), which makes it an unfair labor practice to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7" of the Act, to wit,

. . . the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

29 U.S.C. § 157. An Administrative Law Judge held the Company had violated § 8(a)(1), and the Board affirmed, albeit on a different ground. The Board reasoned:

[We] look[] to State law to ascertain whether an employer has a property right sufficient to deny access to nonemployee union representatives.... [A]n employer cannot exclude individuals exercising Section 7 rights if the State law would not allow the employer to exclude the individuals. . . . 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.. . . Rule 5.6.2, however, is essentially a content-based restriction and not a time, place, and manner restriction permitted under California law . . . . [T]he purpose and effect of this rule was to shield [Fashion Valley's] tenants, such as the Robinsons-May department store, from otherwise lawful consumer boycott handbilling. Accordingly, we find [Fashion Valley] violated Section 8(a)(1) by maintaining Rule 5.6.2.

Equitable Life Assur. Soc'y of the United States, et al., 343 N.L.R.B. No. 57 (Oct. 29, 2004) (internal citations and quotations omitted). The Board also held the Company violated § 8(a)(1) by "requir[ing] [the Union's] adherence to [the] unlawful rule" in its permit application process. Id. Consequently, the Board ordered Fashion Valley to rescind Rule 5.6.2.

II. Analysis

Fashion Valley petitions for review, and the Board cross-applies for enforcement, of the order. We enforce a Board order if the factual findings upon which it rests are supported by "substantial evidence," see United States Testing Co. v. NLRB, 160 F.3d 14, 19 (D.C.Cir. 1998), and the Board's interpretation of the Act is reasonable and consistent with applicable precedent, see Local 702, Int'l Bhd. of Elec. Workers, AFL-CIO v. NLRB, 215 F.3d 11, 15 (D.C.Cir.2000). When the Board has occasion to interpret state law, however, our review is ordinarily de novo. See Cellwave Tel. Servs. L.P. v. FCC, 30 F.3d 1533, 1537 (D.C.Cir.1994) (no deference afforded to agency interpretation of state law absent agency expertise on the subject).

As mentioned, the Board determined Fashion Valley violated § 8(a)(1) in two ways — first, by "maintaining" Rule 5.6.2 and, second, by "enforcing" Rule 5.6.2 against the Union. In the latter regard, the Board reasoned that "inasmuch as the application process requires adherence to an unlawful rule," Fashion Valley "violated Section 8(a)(1) by enforcing Rule 5.6.2, i.e., by requiring the instant application for a permit." 343 N.L.R.B. No. 57.

In Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992), the Supreme Court held it is not a violation of the Act for an employer to bar nonemployee union organizers from its property "except in the rare case where the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels." Id. at 537-38, 112 S.Ct. 841 (emphasis and internal quotations omitted). Under the Board's reading of Lechmere, which Fashion Valley does not dispute, an employer may, without violating § 8(a)(1), exclude a nonemployee union representative from its property if and only if it has that right under state law.^* See Waremart Foods v. NLRB, 354 F.3d 870, 872 (D.C.Cir.2004).

Our review of the Board's holding in the present case requires us to resolve two further questions: (1) State law aside, did Fashion Valley's requirement of a permit for expressive activity, conditioned as it was upon the Union's agreement not to urge a boycott of any Mall tenant, violate § 8(a)(1) of the Act? (2) If so, was Fashion Valley acting within its rights under California law?

A. The National Labor Relations Act

Fashion Valley does not challenge the Board's position that maintenance of the anti-boycott rule violated § 8(a)(1) if the rule also violated the laws of California (of which more later). The Company does, however, contest the Board's further determination that Fashion Valley violated the Act a second time when it enforced Rule 5.6.2 by conditioning the Union's demonstration upon its adherence to the Rule. In Fashion Valley's view, there is simply not substantial evidence the Union intended to boycott Robinsons-May or any other Mall tenant; therefore the Union would have received a permit had it applied for one. Further to this point, Fashion Valley argues that because its permit application "does not highlight Rule 5.6.2, which only consumes three of the 71 lines included in Article 5," the Board cannot reasonably infer the Union "based its refusal to apply for a permit on Rule 5.6.2" nor, hence, that the rule interfered with § 7 rights.

The Board argues that Fashion Valley interfered with the employees' § 7 rights when it sought to force the Union members to forgo a lawful method of protest. If the Board correctly understands that under California law Fashion Valley did not have the right to exclude the demonstrators, then, the Board maintains, the Mall violated § 8(a)(1).

We agree with the Board. Although Fashion Valley is correct that there is not substantial evidence the Union intended to boycott any of the Mall's tenants, nothing in the Act prohibits the Union from carrying out a secondary boycott by means of peaceful handbilling. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 583-87, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). In subjecting the Union to a permit process that required it to forswear use of this lawful tactic, therefore, Fashion Valley...