Glendale Associates, Ltd. v. N.L.R.B.
| Decision Date | 30 October 2003 |
| Docket Number | No. 01-71566.,No. 01-71746.,01-71566.,01-71746. |
| Citation | 347 F.3d 1145 |
| Parties | GLENDALE ASSOCIATES, LTD.; Glendale II Associates Limited Partnership; Donahue Schriber, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. National Labor Relations Board, Petitioner, v. Glendale Associates, Ltd.; Glendale II Associates Limited Partnership; Donahue Schriber, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas J. Leanse (argued) and Karen L. Stephenson (briefed), Katten, Muchin & Zavis, Los Angeles, California, for the petitioners-respondents.
Robert J. Englehart, National Labor Relations Board, Washington, D.C., for the respondent-petitioner.
On Petitions for Review of an Order of the National Labor Relations Board.
Before: Harry PREGERSON, John T. NOONAN, and A. Wallace TASHIMA, Circuit Judges.
In the spring of 1997, Local 57 of the National Association of Broadcast Employees and Technicians, the Broadcasting and Cable Television Workers Sector of the Communication Workers of America ("Union" or "Local 57") and the American Broadcasting Company, Inc. ("ABC") were engaged in a contract dispute. To pressure ABC to settle the dispute, union representatives from Local 57 distributed handbills to customers outside of the Disney Store in the Glendale Galleria ("Galleria"). The Union targeted the Disney Store because it is owned by Disney Enterprises, Inc. ("Disney Enterprises"), the same parent company that owns ABC. The handbills the Union distributed outside the Disney Store informed customers of ABC's and Disney Enterprises' anti-worker policies and encouraged customers to express their concerns about Disney Enterprises' corporate practices to Disney's corporate headquarters and to Congress.
Petitioners co-own and manage the Galleria. Shortly after the Union began handbilling at the Galleria, Petitioners requested that the Union comply with their rules regarding distributing written materials on their premises. Relevant to this appeal, Petitioners requested that the Union remove Disney's name from the handbill pursuant to the Galleria's policy prohibiting certain groups from distributing on its premises written materials that name a Galleria tenant, owner, or manager. The Union refused to remove Disney's name from its handbill. Petitioners then requested that the union representatives leave its premises for failure to comply with the rule prohibiting the distribution of written material that names a mall tenant. Petitioners informed the Union members that if they did not leave the Galleria premises, the union representatives would be arrested for trespassing on private property.
The Union subsequently filed an unfair labor practice charge against Petitioners under § 8(a)(1), 29 U.S.C. § 158(a)(1), of the National Labor Relations Act ("NLRA"). An Administrative Law Judge ("ALJ") found that Petitioners violated § 8(a)(1) by promulgating, maintaining, and enforcing a rule prohibiting union representatives from distributing literature on Galleria premises that identifies by name a Galleria tenant, owner, or manager.
The National Labor Relations Board ("the Board") affirmed the ALJ's decision and ordered that Petitioners cease and desist from maintaining and enforcing a rule "prohibiting handbilling or other expressive activities protected by Section 7 of the NLRA which identify by name the center owner, manager, or any tenant in the center."
The Galleria petitions for review of the Board's order, and the Board cross-petitions for enforcement of the Board's order. We affirm the Board's decision, and hold that Petitioners violated § 8(a)(1) of the NLRA by prohibiting the union representatives from naming a Glendale tenant in the handbills they distributed on Petitioner's property. We, therefore, enforce the Board's order.
Petitioners Glendale Associates, Ltd. and Glendale II Associates, both California partnerships, co-own a large retail shopping center known as the "Glendale Galleria" in Glendale, California.1 They employ petitioner Donahue Schriber, a management company based in Newport Beach, California to manage the operations of the Galleria. Petitioners are employers as defined by the NLRA. Glendale Associates, 335 NLRB at *6.
The Galleria consists of more than 1.3 million square feet. It contains five major department stores and 60 other stores and has thirteen entrances. At each entrance, a sign welcomes customers and announces a general ban on bicycles, radios, roller skates, and soliciting. The Galleria employs 40-45 security officers, with about ten to twelve officers working on the property at any time.
One of the tenants of the Galleria is the Disney Store, Inc. The Disney Store is a separately incorporated, wholly owned, subsidiary of Disney Enterprises. Disney Enterprises also owns ABC, formally known as Capitol Cities/ABC, Inc. Disney Enterprises, in turn, is a wholly owned subsidiary of the Walt Disney Company.
Local 57 represents a bargaining unit that includes tape editors who work for ABC. At the expiration of the parties' last collective bargaining agreement, on March 31, 1997, ABC and the Union failed to reach agreement on the terms of a new collective bargaining agreement. To pressure ABC to negotiate a new agreement, on May 10, 1997, the president of Local 57, Gina Stinett, and several Local 57 members (collectively "union representatives") distributed handbills inside the Galleria near the Disney Store. None of the union representatives distributing handbills was employed by the Disney Store. The hand-bills informed customers of ABC's demand for take-backs from workers during negotiations with the Union, including ABC's proposed elimination of company pension contributions. In addition, the handbill included information on Disney's sweatshop violations in Haiti, child labor practices in Los Angeles, and tax loophole practices. The handbill encouraged customers to express their concern about Disney's employment policies to the Disney corporate headquarters, the Disney Store manager, and Congress.2
After Local 57 began handbilling in front of the Disney Store, the Galleria's director of security, Michael Cross, approached the union representatives. Cross instructed the union representatives that they had to comply with the Galleria's rules regulating handbilling. Cross gave the Union an application and a full set of the Galleria's rules for distributing literature. On June 2, 1997, the Union submitted its application to the Galleria. The Galleria subsequently gave the Union permission to handbill on June 7, 1997, subject to curing certain deficiencies in the application. Specifically, the Galleria required the Union (1) to explicitly identify the names of those expected to participate in the handbilling effort, and (2) to remove the reference to the Disney Store from the handbills pursuant to a Galleria policy that bars certain groups from naming a Galleria owner, manager, or tenant on noncommercial materials that was distributed on its premises. Petitioners do not apply their rule barring groups from naming a Galleria owner, manager, or tenant to persons or groups engaged in a primary dispute with a Galleria tenant. Nor do Petitioners apply the rule to persons or groups distributing commercial literature on its premises.
The Union completed the Galleria's application and returned it to Petitioners. The Union complied with the Galleria's request to name the handbillers. But the Union declined to remove the reference to the Disney Store from the handbills. On June 7, 1999, union representatives returned to the Galleria to distribute handbills in front of the Disney Store. Cross, upon noting that the Union had not removed the Disney Store's name from its handbills, ordered the Union to leave the Galleria premises. Cross informed the Union that if they did not leave, they would be subject to arrest for illegal trespass on private property. Undeterred, the union representatives continued distributing the handbills outside of the Disney Store. Petitioners did not contact police officials. The Union filed an unfair labor practice charge against Petitioners with the Board.
On March 4, 1999, an ALJ held that Petitioners violated Section 8(a)(1) of the NLRA by promulgating, maintaining, and enforcing, by threats to call the police, a rule prohibiting the naming of a Galleria tenant on its premises. The ALJ found that Petitioners' rule was "a content-based restriction prohibited both by the First Amendment and by Section 7 of the Act." Glendale Associates, 335 NLRB at *16. The ALJ thus ordered Petitioners to cease and desist from maintaining and enforcing their rule prohibiting expressive activities which identify the name of the center owner, manager, or tenant of the mall. In addition, the ALJ held that Petitioners were not in violation of the NLRA by requiring the Union to supply the names of individuals who would be handbilling on its premises.
On appeal, the Board adopted the decision of the ALJ. The Board first observed that under Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992), an employer may lawfully bar non-employee Union organizers from private property unless employees are inaccessible to the Union. Glendale Associates, 35 NLRB 8, 2001 WL 986870 at *4 n. 5. The Board held, however, that where an employer does not have a private property interest to exclude nonemployee Union organizers from its premises, the Court's holding in Lechmere does not apply to the case. Id. Because the Board found that the Galleria's rule prohibiting the distribution of literature that names a Galleria tenant, owner or manager is an impermissible content-based restriction under California law, the Board held that the Galleria did not have a sufficient property interest to exclude the Union from its...
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