The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 13, 2005 Decided June 16, 2006
No. 04-1411
FASHION VALLEY MALL, LLC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD ,
RESPONDENT
Consolidated with
05-1027 & 05-1039
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.
2
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;
3
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 the 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,
4
... 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 Adminstrative 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.
5
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 (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 (emphasis and internal quotations omitted). Under the
Board’s reading of Lechmere, which Fashion Valley does not
6
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
* Fashion Valley does not challenge the Board’s assumption that
because it is an “employer” within the meaning of § 2(2) of the Act,
29 U.S.C. § 152(2), it may be held liable for interfering with the § 7
rights of the employees of another employer with which it has no
agency relationship -- a matter upon which we express no opinion.
7
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
(1988). In subjecting the Union to a permit process that required
it to forswear use of this lawful tactic, therefore, Fashion Valley
interfered with the employees’ rights under § 7 of the Act. That
Rule 5.6.2 comprised only three lines of text is irrelevant; it
imposed an unlawful condition for obtaining a permit.
Enforcement of Rule 5.6.2 therefore violated § 8(a)(1) -- unless,
that is, the Company had the right under California
constitutional law to exclude the employees altogether. See
Waremart, 354 F.3d at 872.
B. The Constitution of California
The Supreme Court of California has ruled that “the
California Constitution protect[s] speech and petitioning,
reasonably exercised, in shopping centers even when the centers
are privately owned.” Robins v. Pruneyard Shopping Ctr., 23
Cal. 3d 899, 910, 153 Cal. Rptr. 854, 860 (1979). Fashion
Valley therefore seeks refuge in the “reasonably exercised”
limitation upon petitioning, pointing out that the Court in
8
Pruneyard also said a private shopping center is not required to
host expressive activities that “interfere with normal business
operations,” 153 Cal. Rptr. at 860-61, and reasoning that Rule
5.6.2 is lawful because it merely protects the Mall “from
disruption of normal business operations and ... interference
with customer convenience.” H-CHH Assocs. v. Citizens for
Representative Gov’t, 193 Cal. App. 3d 1193, 1208, 238 Cal.
Rptr. 841, 850 (Cal. App. 2d Dist. 1987); see also Diamond v.
Bland, 3 Cal. 3d 653, 666, 91 Cal. Rptr. 501, 509 (1970) (parties
may restrict speech in order to prevent “obstruction of or undue
interference with normal business operations”); In re Hoffman,
67 Cal. 2d 845, 852, 64 Cal. Rptr. 97, 101 (1967) (protestors not
permitted to “interfere[] with the conduct of the railroad
business”).
In the Company’s view, that is, the Union’s constitutional
right to engage in expressive activities does not extend to any
activity that interferes with the Mall’s primary purpose, namely,
“to facilitate the ease of commerce and to promote the business
of its merchant tenants.” H-CHH Assocs., 238 Cal. Rptr. at 859.
According to Fashion Valley, in urging a boycott “what the
protestor is asking the customer to do ... is inherently
inconsistent with the dedicated purpose of the shopping center --
the promotion of merchandise and services in the shopping
center.”
Alternatively, Fashion Valley argues, even if there is no
“primary purpose” doctrine in Pruneyard and H-CHH
Associates, the Mall is not a “public forum” under the laws of
California and therefore its regulation of expressive activity
“need only be reasonable”; yet the Board failed to address the
“forum analysis” undertaken by the Supreme Court of California
in Clark v. Burleigh, 4 Cal. 4th 474, 482-489, 14 Cal. Rptr. 2d
455, 460-65 (1992). Under Fashion Valley’s reading of Clark,
all “property other than streets and parks,” and hence the Mall,
9
is a non-public forum.
Finally, Fashion Valley argues that even if the Mall is a
public forum, Rule 5.6.2 is a permissible, content-neutral
regulation of speech. In Los Angeles Alliance for Survival v.
City of Los Angeles, 22 Cal. 4th 352, 93 Cal. Rptr. 2d 1 (1992),
the Supreme Court of California, defining a “content-neutral”
regulation as a restriction “justified without reference to the
content of the regulated speech,” 93 Cal. Rptr. 2d at 10, upheld
an ordinance that banned “all solicitation in certain defined
places” and “aggressive” solicitation in any public place, 93 Cal.
Rptr. 2d at 7. Fashion Valley maintains Rule 5.6.2 is similarly
content-neutral because it “prohibits all boycott appeals directed
at the Mall’s stores or any of the goods or services sold by Mall
merchants, regardless of the subject matter of the protest or the
protestor’s ... viewpoint.”
The Board disagrees with Fashion Valley on all counts.
First, the Board argues Fashion Valley misreads Pruneyard and
H-CHH Associates to mean “California has created a forum
open to all speech except for that criticizing the actions of mall
tenants.” In the Board’s view, the reference in H-CHH
Associates to “freedom from disruption of normal business
operations” means only that a shopping mall may impose
appropriate time, place, and manner restrictions on expressive
activity.
Second, relying upon the Ninth Circuit’s decision in
Glendale Associates, Ltd. v. NLRB, 347 F.3d 1145 (2003), the
Board maintains the Mall is indeed a “public forum” under the
State Constitution. In Glendale the court read Pruneyard to
mean “privately-owned shopping centers are required to respect
individual free speech rights on their premises to the same extent
that government entities are bound to observe state and federal
free speech rights.” Id. at 1154. The Board also adverts to our
10
decision in Waremart, in which we held that under California
law a grocery store could exclude union handbillers from its
parking lot, but in passing noted that in Pruneyard the Supreme
Court of California “reasoned that shopping centers had become
the functional equivalents of ‘miniature downtowns’ and should
be treated as public forums, from which expressive activity
cannot be entirely excluded.” 354 F.3d at 872.
Finally, the Board argues Rule 5.6.2 is not content-neutral
but rather a “content-based restraint on speech because it
facially prohibits persons from urging or encouraging, in any
manner, customers not to purchase the merchandise or services
offered by any Mall tenant.” In Glendale, the Ninth Circuit held
a shopping mall regulation that prohibited the distribution of
written materials mentioning by name any “tenant, owner, or
manager” of the mall, 347 F.3d at 1147, was not content-neutral
because it was “based on hostility ... towards the underlying
message expressed.” Id. at 1157-58. So, too, says the Board of
Fashion Valley’s ban on boycotts: “Indeed the Shopping Mall
admits that it maintains the rule because it disfavors speech that
may adversely affect its business.”
Neither party’s argument is fully persuasive. Each marshals
the California case law to advantage, but the fact remains that no
California court has squarely decided whether a shopping center
may lawfully ban from its premises speech urging the public to
boycott a tenant. The case closest in point is UNITE v. Superior
Court of Los Angeles County, 56 Cal. App. 4th 996, 1020, 65
Cal. Rptr. 2d 838, 854 (Cal. App. 2d Dist. 1997), which
involved “Prohibition[s] Against Interference With Mall
Tenants” very similar to Fashion Valley’s Rule 5.6.2. Although
the court said the anti-boycott rules “could lead to impermissible
content-based regulation of expressive activities” in violation of
the State Constitution, it did not determine whether the rules
actually were unconstitutional because the issue had not been
11
preserved. 65 Cal. Rptr. 2d at 854-55. The Supreme Court of
California we think could reasonably agree with either Fashion
Valley or the Board.
III. Conclusion
In sum, whether Fashion Valley violated § 8(a)(1) of the
Act depends upon whether it could lawfully maintain and
enforce an anti-boycott rule -- a question no California court has
resolved. Because we owe no deference to the Board’s
interpretation of the Constitution of California and can only
guess how the Supreme Court of California would resolve the
issue, we shall certify to that court the following question:
Under California law may Fashion Valley maintain and
enforce against the Union its Rule 5.6.2?
Pursuant to Rule 29.8 of the California Rules of Court, we
may certify “a question of California law if: (1) the decision
could determine the outcome of a matter pending ... and (2)
there is no controlling precedent.” Cal. R. Ct. 29.8(a). Here,
both requirements are met. Accordingly, we shall hold this case
in abeyance pending a response from that court.
So ordered.
WILLIAMS, Senior Circuit Judge, concurring in the
certification to the Supreme Court of California: I write
separately to underscore what the decision does not hold and
to explain where I depart from the majority’s reasoning. First,
as Maj. Op. at 6 n.* observes, we take no position on whether
a firm connected to a labor dispute or relationship only by
virtue of being the landlord of a firm (Robinsons-May) that
advertises with the disputing employer (the San Diego Union-
Tribune) is subject to the duties (vis-à-vis a union seeking to
handbill against the Union-Tribune) that the National Labor
Relations Act (“NLRA”) imposes on “employers” with
respect to their own employees (and unions seeking to
represent them). Fashion Valley raised no such issue.
Second, the Board found that, assuming that Rule 5.6.2
violated California law, Fashion Valley had violated § 8(a)(1)
both “by maintaining” Rule 5.6.2, Equitable Life Assur. Soc’y
of the United States, et al., 343 N.L.R.B. No. 57 at 2 (Oct. 29,
2004), and “by enforcing” the rule, id. Fashion Valley didn’t
challenge the Board’s “maintenance” finding; thus we reach
no holding on that issue, and the question of California
constitutional law is properly before us (and in turn certified).
But Fashion Valley did challenge the Board’s conclusion
that it (Fashion Valley) violated § 8(a)(1) “by enforcing Rule
5.6.2, i.e., by requiring the instant application for a permit,”
id. (emphasis added), and I cannot agree with the court’s
reliance on that finding—reliance that appears quite
unnecessary in view of the Board’s unchallenged
“maintenance” conclusion. I see three problems with the
majority’s enforcement analysis. First, the union’s proposed
leafleting didn’t run afoul of Rule 5.6.2. Although the Board
incorporated the ALJ’s finding that “the Union’s October 4
leafleting had, as its primary object, a consumer boycott of the
Mall’s Robinsons-May store,” id. at 1, 7, the majority
correctly reverses that finding. See Maj. Op. at 7 (agreeing
2
with Fashion Valley’s contention “that there is not substantial
evidence the Union intended to boycott any of the Mall’s
tenants,” id. at 6). It is hard to see how a firm can “enforce” a
rule in an episode to which the rule is irrelevant.
Having removed the factual support from the Board’s
position, the court goes on to affirm on different grounds,
disregarding the familiar principles of Securities and
Exchange Comm'n v. Chenery Corp., 318 U.S. 80, 87-88
(1943). The court says that “Fashion Valley interfered with
the employees’ rights” by “subjecting the Union to a permit
process that required [the Union] to forswear use of a lawful
tactic.” Maj. Op. at 7. This evidently rests on the Board’s
conclusion that “inasmuch as the application process requires
adherence to an unlawful rule, [Fashion Valley] may not
enforce it.” 343 N.L.R.B. No. 57 at 2 (emphasis added). The
referent for the word “it” is unclear. The majority reads “it”
as the application process. Thus, under the majority’s
reading, a firm imposing an application requirement
“enforces” all of its rules (at least ones that a successful
applicant must pledge to obey) anytime that it insists on an
application. The majority thus eviscerates much of the
distinction between enforcement and maintenance. Fashion
Valley maintained Rule 5.6.2, but in no way enforced it.
Alternatively, “it” may refer to Rule 5.6.2. This seems
more likely, in view of the Board’s finding that the union
intended a boycott (which we now reverse), and its later
reference to Fashion Valley’s “enforcing Rule 5.6.2.” Id. On
this reading, of course, the Board’s analysis would founder for
want of factual support.
Second, the majority’s enforcement theory is further
marred by the union’s complete unawareness (on the date of
3
the supposed “enforcement”) of the very existence of Rule
5.6.2 or its content. The evidence suggests that Fashion
Valley excluded the union on October 4 simply because the
union refused to apply for a permit, not because Fashion
Valley “enforced” Rule 5.6.2 in any non-metaphysical way.
Lastly, the majority notes that under Edward J.
DeBartolo Corp. v. Fla. Gulf Cost Bldg. & Constr. Trades
Council, 485 U.S. 568, 583-87 (1988), nothing in the NLRA
barred the union from carrying out a secondary boycott by
peaceful handbilling. Maj. Op. at 7. True. But of course that
tells us little or nothing about the possible affirmative duties
of parties subjected to secondary boycotts.
In sum, the majority stretches ordinary language (and the
case law) too far—and substitutes its own reasoning for the
Board’s—in concluding that when a company conditions
leafleting on submission of an application it automatically
“enforces” any rule (that a successful applicant would be
required to obey) against persons who have neither
contemplated conduct that might violate the rule nor learned
of the rule’s existence.