United Broth. of Carpenters Local 848 v. N.L.R.B.

• Decision Date: 25 August 2008
• Docket Number: Nos. 05-75295, 05-76217, 05-77116.,s. 05-75295, 05-76217, 05-77116.
• Citation: 540 F.3d 957
• Parties: UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA LOCAL 848; United Brotherhood of Carpenters and Joiners of America; AFL-CIO, and Carpenters Local 505, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, Petitioners, United Brotherhood of Carpenters And Joiners of America. Intervenor, v. NATIONAL LABOR RELATIONS BOARD, Respondent. National Labor Relations Board; Macerich Management, Petitioners, United Brotherhood of Carpenters And Joiners of America. Intervenor, v. Macerich Management Company; Macerich Property Management Company, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

540 F.3d 957

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA LOCAL 848; United Brotherhood of Carpenters and Joiners of America; AFL-CIO, and Carpenters Local 505, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, Petitioners, United Brotherhood of Carpenters And Joiners of America. Intervenor, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

National Labor Relations Board; Macerich Management, Petitioners, United Brotherhood of Carpenters And Joiners of America. Intervenor, v. Macerich Management Company; Macerich Property Management Company, Respondents.

Nos. 05-75295, 05-76217, 05-77116.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 15, 2007.

Filed August 25, 2008.

Caren P. Sencer and David Rosenfeld, Weinberg Roger & Rosenfeld, Alameda, CA, for petitioners United Brotherhood of Carpenters and Joiners of America, Local 505, United Brotherhood of Carpenters and Joiners of America, Local 848, and United Brotherhood of Carpenters and Joiners of America.

Thomas J. Leanse, Stacey McKee Knight, Katten Muchin Rosenman, LLP, Los Angeles, CA, for respondents Macerich Management Company and Macerich Property Management Company.

Linda Dreeben, David Habenstreit, Joseph P. Norelli, and Jason Walta, Washington, DC, for respondent the National Labor Relations Board.

Jo Anne Bernhard, Sacramento, CA, for amicus curiae International Council of Shopping Centers and California Business Properties Association.

Donald C. Carroll, Carroll & Scully, Inc., San Francisco, CA, for amicus curiae California Labor Federation.

On Petition for Review of an Order of the National Labor Relations Board. NLRB Nos. 20-CA-29636-1, 20-CA-29918-1, 30-CA-29918.

Before: JANE R. ROTH,^* SIDNEY R. THOMAS, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge THOMAS; Partial Concurrence and Partial Dissent by Judge CALLAHAN.

THOMAS, Circuit Judge:

This petition for review presents the question of whether six restrictions on expressive activity promulgated and enforced by two California shopping malls infringe on the free speech rights guaranteed by the California State Constitution and therefore interfere with protected union activity in violation of the National Labor Relations Act ("NLRA") when applied to union picketing and handbilling actions. We hold that the six rules impermissibly infringe free speech rights and unlawfully interfere with protected union activity.

I

Macerich Management Company and Macerich Property Management Company (collectively "Macerich") operate as the managing agents for Arden Fair Mall and Capitola Mall ("the Malls"), respectively. The Malls are enclosed, privately-owned shopping centers located in Sacramento, California, and Santa Monica, California. Macerich promulgated a list of "Rules for Public Use of Common Areas" that regulate expressive activity in each mall. Among these rules are the six at issue here:

Rule 1 ("identification ban"): a ban on activities that identify by name the mall owner, manager, or tenants;

Rule 2 ("commercial purpose rule"): a ban on signage and written materials that interfere with the "commercial purpose" of the mall;

Rule 3 ("signage ban"): a ban on the carrying or wearing of signs; Rule 4 ("application requirement"): an application process that requires the pre-submission of written materials;

Rule 5 ("designated areas rule"): the exclusion of exterior areas, including mall sidewalks, from designated areas where expressive activities may occur; and

Rule 6 ("peak traffic rule"): the prohibition of expressive activities during "peak traffic days."¹

According to Macerich, the general purpose of these rules is to safeguard the commercial activity of the malls, provide shoppers with a pleasant shopping experience, and protect shoppers' safety.

On December 16, 1999, representatives of United Brotherhood of Carpenters and Joiners of America Local 586 ("Local 586") distributed handbills at the interior and exterior entrances of the Sears store at Arden Fair Mall, to protest the use of a nonunion contractor to build a Sears store in Roseville, California. Local 586 did not file an application with the mall beforehand, nor did it submit the handbills for pre-screening, because a union representative had been told by an Arden Fair employee that an application was unnecessary. Mall security guards informed the union representatives that they were trespassing and would be arrested if they remained on the premises. When the union representatives refused to leave, mall officials called the police and one representative was arrested. Later, a Local 586 representative filled out an application, which was denied as untimely, incomplete, and ambiguous. On December 21 and 22, 1999, Local 586 representatives went to Arden Fair Mall wearing shirts that said "Do Not Patronize Arden Fair Mall—Unfair to Carpenters."

On March 7, 2000, United Brotherhood of Carpenters and Joiners of America Local 505 representatives distributed handbills and picketed at Capitola Mall to protest the use of a nonunion contractor to build a new store in the mall, and to publicize an area standards dispute. The picketers left after the police arrived and warned them that they could be subject to citizen's arrest. Two weeks later, Local 505 representatives returned to Capitola Mall and again picketed the construction site. When they refused to leave, they were placed under citizen's arrest. On May 3, 2000, Local 505 representatives again picketed at Capitola Mall, this time protesting the use of another nonunion contractor. Four union representatives were arrested. In no instance did Local 505 complete an application beforehand or pre-submit written materials to the mall.

Locals 586 and 505 ("the Unions") each filed unfair labor practices charges against Macerich, alleging that Macerich had violated section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), by unlawfully restricting the Unions' expressive activities, unlawfully threatening union picketers with arrest, and having union picketers unlawfully arrested. The charges were consolidated by the NLRB General Counsel into a complaint alleging that Macerich had violated section 8(a)(1) by maintaining six rules that unlawfully interfere with expressive activity, and by ejecting union representatives from mall property for engaging in protected activity.

A hearing was conducted before Administrative Law Judge Jay R. Pollack, who concluded that Macerich had engaged in unfair labor practices by promulgating, maintaining, and enforcing each of the challenged rules, and by ejecting union representatives from mall property for engaging in protected activity. Macerich filed exceptions to ALJ Pollack's decision, and the Board's General Counsel filed cross-exceptions.

In 2005, the NLRB issued a decision affirming ALJ Pollack's decision in part. Specifically, the Board upheld ALJ Pollack's findings that the identification ban and the commercial purpose rule (Rules 1 and 2) were unlawful content-based restrictions under California law. The Board also upheld ALJ Pollack's finding that the application requirement (Rule 4) was unlawful when applied to ensure compliance with Rules 1 and 2. The Board further found, contrary to ALJ Pollack's decision, that the signage ban, the designated areas rule, and the peak traffic rule (Rules 3, 5, and 6) were reasonable time, place, or manner restrictions under California law. The Unions filed a petition for review (Case No. 05-75295), arguing that Rules 3, 5, and 6 are unlawful; Macerich filed a petition for review (Case No. 05-77116), arguing that Rules 1, 2, and 4 are permissible; and the NLRB filed a petition for enforcement of its decision (Case No. 05-76217). The Unions then filed a motion to intervene in Case No. 05-77116. By orders of December 9, 2005, and January 24, 2006, we consolidated the petitions for review with the Board's application for enforcement, and granted the Unions' motion to intervene. We now grant the Unions' petition, grant in part and deny in part the Board's petition, and deny Macerich's petition.

We review the Board's decision to determine whether the Board's findings of fact are supported by substantial evidence in the record as a whole, and whether the Board correctly applied the law. Healthcare Employees Union v. NLRB, 463 F.3d 909, 918 (9th Cir.2006).

II

Section 7 of the NLRA guarantees employees the right to form labor unions, bargain collectively, and "engage in other concerted activities for the purpose of collective bargaining or other mutual aid." NLRA § 7, 29 U.S.C. § 157.

Section 8(a)(1) of the NLRA makes it an "unfair labor practice" for an employer "to interfere with, restrain, or coerce employees" in the exercise of their section 7 rights. NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1). While the NLRA by its terms confers rights only on employees, the United States Supreme Court has determined that it also restricts an employer's right to exclude nonemployee union organizers from the employer's property. Lechmere, Inc. v. NLRB, 502 U.S. 527, 535, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992).

Under Lechmere and subsequent cases, the rights of nonemployee union representatives to access an employer's private property are based in state law. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 217 n. 21, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994). Where state common law grants an employer the right to exclude nonemployee union organizers from its property, the NLRA guarantees access only if the union can show that employees are otherwise inaccessible to union organizers, and that the employees' section 7 rights outweigh the employer's property rights. Lechmere, 502 U.S. at 538, 112 S.Ct. 841. Where state law grants nonemployee union organizers the right to access the employer's property, a violation of these state rights will also be a violation of the NLRA. Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145, 1153 (9th Cir.2003). Thus, the question of whether Macerich...