Opposition Brief — Fashion Valley Mall, LLC v. National Labor Relations Board (No. 07-1454)

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Supreme Court US.)

FILED

é) AUG 22 2008

No. 07-1454 LOFFIGE OF THE CLERK |

Jn the Supreme Court of the United States

FASHION VALLEY MALL, LLC, PETITIONER

VU.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

GREGORY G. GARRE

RONALD MEISBURG Acting Solicitor General

Counsel of Record

General Counsel Department of Justice

JOHN E. HIGGINS, JR. Washington, D.C. 20530-0001

Deputy General Counsel (202) 514-2217

JOHN H. FERGUSON

Associate General Counsel

LINDA DREEBEN

Deputy —_—— General

ounsel

DAVID HABENSTREIT

Assistant General Counsel

JASON WALTA

Attorney

National Labor Relations

Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether this Court has jurisdiction pursuant to 28

U.S.C. 1257(a) to undertake direct review of a state su-

preme court opinion answering a question of state law

certified to it by a federal court of appeals, where the

court of appeals retained jurisdiction to decide the fed-

eral questions presented in the case, and where the fed-

eral question on which petitioner seeks review was nei-

ther timely pressed nor passed upon by the state su-

preme court.

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Conelusion

Appendix A- Court of appeals opinion (May 9, 2008)

Appendix B — Court of appeals order (Dec. 31, 2007)

Appendix C — Court of appeals opinion (Dec. 18, 2005) .... 8a

Appendix D- National Labor Relations Board decision

and order (Oct. 29, 2004)

Appendix E — Letter of National Labor Relations Board

to Clerk of the Supreme Court of California

(Aug. 30, 2006)

TABLE OF AUTHORITIES

Cases:

Adams v. Robertson, 520 U.S. 88 (1997)

Anzonans for Official English v. Arizona, 520 U.S.

43 (1997)

Board of Dirs. of Rotary Intl v. Rotary Club,

481 U.S. 587 (1987)

City of Houston v. Hill, 482 U.S. 451 (1987)

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) .... 9, 10, 16

Crowell v. Randell, 35 U.S. (10 Pet.) 368 (1836)

Exxon Corp. v. Eagerton, 462 U.S. 176 (1983)

Florida v. Thomas, 532 U.S. 774 (2001)

Cases—continued:

Glendale Assoes., Ltd., 335 N.L.R.B. 27 (2001),

enforced, 347 F.3d 1145 (9th Cir. 2003)

Government & Civic Employees Org. Comma. v.

Windsor, 353 U.S. 364 (1957)

Hanson v. Denckla, 357 U.S. 235 (1958)

Howell v. Mississippt, 543 U.S. 440 (2005)

Illinois v. Gates, 462 U.S. 213 (1983)

International Ladies Garment Workers’ Union,

Upper S. Dep’t v. Quality Mfg. Co., 429 U.S. 276

(1975)

Jefferson v. City of Tarrant, 522 U.S. 75 (1997)

Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) ........... 2

Lucas v. South Carolina Coastal Council, 505 U.S.

1003 (1992)

Market St. Ry. v. Railroad Comm'n, 324 U.S. 548

(1945)

NAACP v. Button, 371 U.S. 415 (1963)

NLRB v. Calkins, 187 F.3d 1080 (9th Cir. 1999),

cert. denied, 529 U.S. 1098 (2000) ...............006-

Polynesian Cultural Ctr., Inc. v. NLRB, 582 F.2d 467

(9th Cir. 1978)

PruneYard Shopping Ctr. v. Robins, 447 U.S. 74

(1980)

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

(1945)

Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941) .. 11

Reynolds v. Bement, 116 P.38d 1162 (Cal. 2005)

Robins v. Pruneyard Shopping Ctr., 592 P.2d 341

(Cal. 1979), aff'd, 447 U.S. 74 (1980) .............068- 4

Cases—continued:

State Farm Mut. Auto. Ins. Co. v. Duel, 324 U.S. 154

(1945)

Stevens v. City of Cannon Beach, 510 U.S. 1207 (1994) .. 18

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) .... 3

Toll v. Moreno, 441 U.S. 458 (1979)

United States v. United Foods, Inc., 533 U.S. 405

(2001)

Webb v. Webb, 451 U.S. 493 (1981) ..............0...... 15

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155 (1980)

Woelke & Romero Framing, Inc. v. NLRB,

456 U.S. 645 (1982)

Yee v. City of Escondido, 503 U.S. 519 (1992)

Constitutions, statutes and rule:

U.S. Const.:

Amend, V

Takings Clause

Cl tn Ss Bi UD svc cis cd vsccddewsceesscuen 18

Cal. Const. of 1849, Art. 1, See. 9

National Labor Relations Act, 29 U.S.C. 151 et seg.

29 U.S.C. 157 (§ 7)

29 U.S.C. 158(a)(1) (§ B(a)(1)) 2... eee eee.

29 U.S.C. 160(e) (§ 10(e))

28 U.S.C. 1257(a)

Cal. R. Ct. 8.548(a)

Miscellaneous:

Richard Fallon, Jr. et al., Hart and Wechsler's

The Federal Courts and The Federal System

I oe rl ie oe eee ead sie aw awe hiss )

Eugene Gressman et al., Supreme Court Practice

(9th ed. 2007)

In the Supreme Court of the Gnited States

No. 07-1454

FASHION VALLEY MALL, LLC, PETITIONER

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the Supreme Court of California an-

swering a question of state law certified to it by the

United States Court of Appeals for the District of Co-

lumbia Circuit (Pet. App. 1-53) is reported at 172 P.3d

742. The opinion of the court of appeals enforcing the

order of the National Labor Relations Board (Board)

after receiving the answer of the California Supreme

Court to the court of appeals’ certified question (App.,

infra, la-5a) is reported at 524 F.3d 1378. The order of

the court of appeals certifying the question of state law

to the Supreme Court of California (App., infra, 8a-22a)

is reported at 451 F.3d 241. The decision and order of

the Board (App., infra, 23a-33a) are reported at 343

N.L.R.B. 438.

JURISDICTION

The opinion of the Supreme Court of California, an-

swering a certified question of state law, was entered on

December 24, 2007. A petition for rehearing was denied

on February 20, 2008 (Pet. App. 54). The petition for a

writ of certiorari was filed on May 20, 2008. The juris-

diction of this Court is invoked under 28 U.S.C. 1257(a).

For reasons explained below, however (see pp. 8-17, in-

fra), this Court lacks jurisdiction because the interlocu-

tory decision of the California Supreme Court answering

a certified question of state law, which does not address

the federal constitutional question petitioner raised for

the first time in its petition for rehearing, is not a

“(flinal judgment|}” deciding a “right * * * specially set

up or claimed under the | United States] Constitution,”

28 U.S.C. 1257(a).

STATEMENT

1. An employer that has, under state law, a right to

exclude others from its property does not generally vio-

late the National Labor Relations Act (NLRA or the

Act), 29 U.S.C. 151 et seg., when it prevents nonem-

ployees from entering upon its property to distribute

union literature. See Lechmere, Inc. v. NLRB, 502 U.S.

527, 537-538 (1992). When an employer lacks such a

state-law right, it violates Section 8(a)(1) of the NLRA,

29 U.S.C. 158(a)(1), by excluding or seeking to exclude

nonemployees engaged in activity protected by Section

7 of the NLRA, 29 U.S.C. 157.' See NLRB v. Calkins,

' Section 8(a)(1) of the Act, 29 U.S.C. 158(a)(1), makes it an unfair

labor practice for an employer to “interfere with, restrain, or coerce

employees in the exercise of the rights guaranteed in section 7” of the

Act, 29 U.S.C. 157, which in turn ensures the right of employees “to

self-organization, to form, join, or assist labor organizations, to bargain

187 F.3d 1080, 1083, 1095-1096 (9th Cir. 1999), cert. de-

nied, 529 U.S. 1098 (2000). See generally Thunder Ba-

sin Coal Co. v. Reich, 510 U.S. 200, 217 n.21 (1994) (“The

right of employers to exclude union organizers from

their private property emanates from state common

law.”). The Board therefore looks to state law to ascer-

tain whether an employer has a property right sufficient

to deny access to nonemployee individuals engaged in

activity protected by Section 7 of the NLRA. Glendale

Assocs., Ltd., 335 N.L.R.B. 27, 28 (2001), enforced, 347

F.3d 1145 (9th Cir. 2003).

2. Petitioner owns a large shopping mall in San

Diego, California. Pet. App. 2,3 n.2. Petitioner permits

certain expressive activities in the common areas of the

mall by those who apply for a permit and agree to abide

by its regulations. Jd. at 3-4. One such regulation, Rule

5.6.2, requires permit applicants te refrain from “[uJrg-

ing, 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 cen-

ter.” Id. at 4.

In October 1998, approximately 30 members and sup-

porters of the Graphic Communications International

Union (Union) gathered outside a department store in

the mall to distribute handbills advertising the Union's

labor dispute with a local newspaper. Pet. App. 2-3. The

Union decided to stage a protest at the mall because the

department store advertises in the newspaper and is

located near the newspaper's premises. /d. at 3. Short-

ly after the handbilling began, a representative of the

mall approached the protestors, explained that a permit

collectively through representatives of their own choosing, and to en-

gage in other concerted activities for the purpose of collective bargain-

ing or other mutual aid or protection.”

was required for their expressive activity, and told them

to leave the premises. /bid.

3. Acting on an unfair labor practice charge filed by

the Union, the Board’s General Counsel issued a com-

plaint, alleging, inter alia, that petitioner violated Sec-

tion 8(a)(1) by prohibiting participants in expressive

activity from urging customers to refrain from shopping

at stores located in the mall. Equitable Life Assuraice

Soc’y of the U.S. & ITC Fashion Valley Corp., 343

N.L.R.B. 438, 441 (2004). After a hearing, an adminis-

trative law judge (ALJ) issued a decision finding that

petitioner violated Section 8(a)(1) by enforcing Rule

5.6.2 and unlawfully excluding the union handbillers. Jd.

at 449.

On review, the Board issued an opinion and order,

App., infra, 23a-33a, affirming the ALJ’s finding of that

unfair labor practice, id. at 29a. Ruling on a separate

allegation on which the ALJ had declined to rule, the

Board also found that petitiorer’s maintenance of the

rule violated Section 8(a)(1). /d. at 28a.

After acknowledging that property owners generally

do not violate the Act by exercising their state-law prop-

erty right to exclude nonemployee union organizers

from private property, the Board analyzed California

law to Jetermine whether it granted petitioner the right

to exclude individuals advocating a boycott of a mall

business. App., infra, 27a-28a. The Board concluded

that California law did not grant the mall owner that

right. Jd. at 28a. In so concluding, the Board relied on

the California Supreme Court’s decision in Robins v.

Pruneyard Shopping Center, 592 P.2d 341 (1979)

(Pruneyard), aff’d, 447 U.S. 74 (1980), which held, con-

struing state property law in light of the State’s consti-

tution, that private shopping centers that were other-

wise open to the public could not prevent individuals

from engaging in speech or petitioning, subject to rea-

sonable time, place, and manner rules adopted by the

property owner. App., infra, 28a. Applying that deci-

sion, the Board determined that petitioner’s Rule 5.6.2

was invalid under California law as a content-based re-

striction on access to a shopping mall otherwise open to

the public, and therefore concluded that petitioner vio-

lated Section 8(a)(1) by maintaining the rule and by re-

quiring the Union to adhere to it as part of the permit

process. Jd, at 28a-29a.

4. Petitioner sought review of the Board’s order be-

fore the United States Court of Appeals for the District

of Columbia Circuit, and the Board cross-applied for

enforcement of its order. After briefing and oral argu-

ment, the court of appeals issued an opinion, App., infra,

8a-22a, concluding that “no California court has square-

ly decided whether a shopping center may lawfully ban

from its premises speech urging the public to boycott a

tenant.” /d. at 18a. The court therefore certified the

following question to the Supreme Court of California:

“Under California law may [petitioner] maintain and

enforce against the Union its Rule 5.6.2?”" Id. at 19a.

The court further stated that it would “hold this case in

abeyance pending a response from that court.” /bid.

5. The Supreme Court of California granted the D.C.

Circuit’s request. The Board did not file a brief or ap-

pear at oral argument before the California Supreme

Court, but instead filed a letter with the clerk of the

court explaining that the Board “has no institutional

* That action was authorized by California Rule of Court 8.548(a),

which provides that a court of appeals may certify “a question of

California law if: (1) [t]he decision could determine the outcome of a

matter pending * * * and (2)[t]here is no controlling precedent.”

interest in how California resolves the state property

law question” that the D.C. Circuit had certified. App.,

infra, 35a. Rather, the letter explained, the Board had

in its order “merely attempt[ed] to give effect to its un-

derstanding of California property law.” /bid.

In a decision dated December 24, 2007 (Pet. App. 1-

53), the Supreme Court of California held that, under its

decision in Pruneyard, the property rights of a mall

owner to exclude members of the public are limited by

“the right to free speech granted by article I, section 2

of the California Constitution{, which] includes the right

to urge customers in a shopping mall to boycott one of

the stores in the mall.” /d. at 1, 7-8. Analyzing Prune-

yard and California Supreme Court decisions that pre-

ceded it (id. at 7-18), the court concluded that it had long

been the law of the State, “and remains the law, that a

privately owned shopping center must permit peaceful

picketing of businesses in shopping centers, even though

such picketing may harm the shopping center's business

interests.” /d. at 19. The court therefore answered the

certified question as follows: “We hold * * * [peti-

tioner}] may not maintain and enforce against the Union

its rule 5.6.2.” Id. at 31. Three members of the court

dissented, contending that the court “should overrule

Pruneyard” or at least distinguish it. /d. at 35. .

Petitioner sought rehearing before the California

Supreme Court. In its petition for rehearing, petitioner

argued for the first time that the court’s answer to the

certified question resulted in a taking of its property in

violation of the Fifth Amendment to the United States

Constitution. Pet. for Reh’g 2-9. The California Su-

preme Court denied rehearing without comment on Feb-

ruary 20, 2008. Pet. App. 54.

6. Although not mentioned in the petition for a writ

of certiorari, on May 9, 2008, before the petition was

filed, the D.C. Circuit issued an opinion and order en-

forcing the Board’s order in light of the California Su-

preme Court’s decision and declining to address peti-

tioner’s Takings Clause argument on the ground that it

had been waived. App., znfra, la-5a.

Shortly after the Supreme Court of California issued

its decision on December 24, 2007, answering the certi-

fied question, the D.C. Circuit had issued an order di-

recting petitioner to “show cause * * * why the court

should not deny its petition for review and grant the

Board’s cross-application for enforcement.” App, infra,

72. In its response, petitioner advanced its takings ar-

rument, acknowledging that the California Supreme

Court had denied the petition for rehearing in which

petitioner had raised the issue for the first time. See 2d.

at 2a.

In its May 9, 2008, decision granting the Board’s ap-

plication for enforcement of its order and denying peti-

tioner’s petition for review, the court of appeals did not

address the merits of petitioner’s takings argument.

Rather, the court held that petitioner had “forfeited its

constitutional argument” by not asserting it initially in

the petition for review of the Board’s decision. App,

infra, 3a. The court rejected petitioner’s contention

that the issue could not have been raised earlier, observ-

ing that “the decision of the Supreme Court of Califor-

nia did not inject any new constitutional issue into the

ease,” because that court had “merely confirmed that

the interpretation of California law long followed by the

Board was correct.” Jd. at 4a. The court of appeals

noted that if petitioner had raised the constitutional is-

sue in its petition for review of the Board’s decision, that

fact might have affected the court of appeals’ decision to

certify the question of state law or the California Su-

preme Court’s answer to that question. /bid.

ARGUMENT

The opinion of the Supreme Court of California an-

swering a question of state law certified to it by the

court of appeals is not a “[f}inal judgment] or decree[]”

within the meaning of 28 U.S.C. 1257(a), the jurisdic-

tional provision that governs this Court’s review of

state-court decisions. Nor did the state court’s opinion

decide “any title, right, privilege, or immunity * * *

specially set up or claimed under the Constitution or the

treaties or statutes of * * * the United States.” bid.

Because this Court lacks jurisdiction to review the ques-

tion of state law addressed by the Supreme Court of Cali-

fornia’s interlocutory opinion, the petition for a writ of

certiorari should be denied.

1. This Court’s jurisdiction to review state-court

decisions is limited to “[f]inal judgments or decrees ren-

dered by the highest court of a State in which a decision

could be had * * * where any title, right, privilege, or

immunity is specially set up or claimed under the Con-

stitution or the treaties or statutes of * * * the United

States.” 28 U.S.C. 1257(a). That provision embodies a

“firm final judgment rule,” Jefferson v. City of Tarrant,

522 U.S. 75, 81 (1997), and “is not one of those technical-

ities to be easily scorned,” Radio Station WOW, Inc. v.

Johnson, 326 U.S. 120, 124 (1945). Rather, faithful ad-

herence to the rule is “an important factor in the smooth

working of our federal system.” Jbid. To satisfy Section

1257(a), a state-court decision must be fina! in two

senses: first, it “must be subject to no further review or

correction”; and, second, it must be “an effective deter-

mination of the litigation and not of merely interlocutory

or intermediate steps therein.” Market St. Ry. v. Rail-

road Comm’n, 324 U.S. 548, 551 (1945).

The opinion of the California Supreme Court answer-

ing the question of state law certified to it by the court

of appeals is not a final judgment under Section 1257(a).

Answering only the question certified to it by the D.C.

Circuit, the state supreme court clarified the pertinent

issue of state law by holding that, under the state consti-

tution, a shopping mall may not prohibit expressive ac-

tivity urging a consumer boycott of a mall tenant. Pet.

App. 30-31. That decision did not, nor could it, termi-

nate the controversy pending between the parties in the

D.C. Circuit—over which the D.C. Circuit explicitly re-

tained jurisdiction and which the California Supreme

Court could not decide—whether petitioner violated

Section 8(a)(1) of the NLRA and whether the Board’s

order against petitioner should be enforced. App., infra,

18a-19a; see Richard Fallon, Jr. et al., Hart and Wechs-

ler’s the Federal Courts and the Federal System 1200-

1201 (5th ed. 2003) (certification procedures “permit

federal courts, while retaining jurisdiction of a case, to

seek a state court’s authoritative resolution of unsettled

state law issues”). Accordingly, the California Supreme

Court’s decision pursuant to the court of appeals’ certifi-

cation was merely an “intermediate step|[],” not the “fi-

nal word,” in the litigation. Jefferson, 522 U.S. at 81

(quoting Market St. Ry., 324 U.S. at 551).

Although this Court in Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469, 479-485 (1975), identified four cate-

gories of state-court decisions that can be final under

Section 1257(a) notwithstanding the pendency of pro-

ceedings on remand in lower state courts, Cow is inappli-

cable here.® The four Cox categories identify situations

in which the state court has decided a federal issue, and,

absent certiorari, there would be no timely or meaning-

ful federai court review of the federal claim. See Flor-

ida v. Thomas, 532 U.S. 774, 778-780 (2001) (summariz-

ing the situations in which the Cox exceptions permit

review). Here, no question of federal law was certified

to or decided by the state court. Indeed, the certifica-

tion procedure does not contemplate that the state court

will decide federal issues, for as this Court has observed,

“certified questions should be confined to uncertain

questions of state law.” City of Houston v. Hill, 482

U.S. 451, 471 n.23 (1987) (noting that it would be “inap-

propriate for a federal court to certify [an] entire consti-

tutional challenge to the state court”). Although the

California Supreme Court could have taken federal con-

stitutional constraints into consideration in construing

state law, the federal court that certified the question of

state law retains jurisdiction to decide all properly pre-

served federal questions in the case, subject to review

’ The categories are (1) “eases in which there are further proceed-

ings * * * yet touccur in the state courts but where for one reason or

another the federal issuc is conclusive or the outcome of further pro-

ceedings preordained,” (2) “cases * * * in which the federal issue,

finally deciaed by the highest court in the State, will survive and

require decision regardless of the outcome of future state-court pro-

ceedings,” (3) “situations where the federal claim has been finally

decided, with further proceedings on the merits in the state courts to

come, but in which later review of the federal issue cannot be had,

whatever the ultimate outeome of the case,” or (4) “situations where the

federal issue has been finally decided in the state courts with further

proceedings pending in which the party seeking review here might

prevail on the merits on nonfederal grounds, * * * and where reversal

of the state court on the federal issue would be preclusive of any further

litigation on the relevant cause of action.” Coa, 420 U.S. at 479-483.

by this Court. See, e.g., Government & Civic Employees

Org. Comm. v. Windsor, 353 U.S. 364, 366-367 (1957)

(per curiam) (remanding to a federal three-judge dis-

trict court a First Amendment challenge to a state law

prohibiting public employees from joining a union “with

directions to retain jurisdiction until efforts to obtain

an appropriate adjudication in the state courts” inter-

preting the state statute in question in light of the un-

ion’s federal Constitutional arguments “have been ex-

hausted” (emphasis added))."

The state supreme court’s answer to a question of

stete law certified to it by a federal court has no immedi-

ate impact on the rights of the litigants, any more than

if the federal court had undertaken itself to answer the

state law issue at an interlocutory stage of the case in-

stead of certifying it to the state supreme court. And

‘ Windsor arose under the procedures announced in Railroad

Commission v. Pullman Co., 312 U.S. 496 (1941) (Pullman), under

which a federal court may abstain from resolving a federal question by

encouraging the initiation of a state-court proceeding in which a final

ruling on an issue of state law may moot the federal question. Jd. at

501. Beeause, under Pullman, an independent state-court action is

initiated, see ib7d., it is sometimes possible for a party to “elect[]to seek

a complete and final adjudication of [its] rights in the state courts,”

including its federal constitutional rights, NAACP v. Button, 371 U.S.

415, 427 (1963). In such a case, this Court would have jurisdiction pur-

suant to Section 1257(a) to review the federal question decided by the

final judgment of the state court. See /d. at 427. In contrast, as we

explain in the text, pp. 9-14, the answer provided by a state court to a

certified question is not a final judgment deciding the rights of the par-

ties, but an interlocutory step preceding a final adjudication of the

parties’ rights by the federal court that retains jurisdiction. And, in any

event, petitioner, which did not raise its federal] constitutional argument

in the California Supreme Court until its petition for rehearing, plainly

did not seek a “complete and final” adjudication of its constitutional

rights in that court. See pp. 14-17, infra.

such an interlocutory resolution of a state law issue

might ultimately have no adverse effect on the party

challenging it if the federal court later rules on final

judgment in that party’s favor on other grounds—

including that the interpretation of state law results in

a violation of the federa! Constitution.

Moreover, to allow direct review in this Court of a

state court’s answer to a certified question of state law

in the midst of ongoing federal litigation would disrupt

the certification procedure and undermine its core poli-

cies of comity and judicial economy. Certification is

meant to provide a less cumbersome alternative to ab-

stention by “allow[ing] a federal court faced with a novel

state-law question to put the question directly to the

State’s highest court, reducing the delay, cutting the

cost, and increasing the assurance of gaining an authori-

tative response.” Arizonans for Official English v. Art-

zona, 520 U5. 438, 76 (1997). If this Court were to enter-

tain direct certiorari review where a state court’s re-

sponse to a certified question of state law arguably

raises a federal question, the resulting delay in the ulti-

mate resolution of the case or the possibility of piece-

meal litigation could dissuade federal courts from utiliz-

ing the procedure. In that event, federal courts are

more likely to risk the kinds of “friction-generating

error[s]” that result when federal courts attempt to rule

on novel issues of state law without the authoritative

guidance of the states’ highest courts. /d. at 79.

The proper course for petitioner thus would have

been to raise its federal Takings Clause challenge to the

purported state-law ‘imitation on its property rights in

the federal court of appeals in which the enforcement

proceeding was pending and then petition for a writ of

certiorari from that court’s final judgment if necessary.

See, e.g., Toll v. Moreno, 441 U.S. 458, 462 (1979) (per

curiam) (remanding case to federal district court to con-

sider in the first instance questions of federal law raised

by clarification of state law after certification by this

Court to the Maryland Court of Appeals). In this case,

however, petitioner forfeited its constitutional argument

in the federal court of appeals by failing to raise the is-

sue in a timely fashion. App., infra, 3a. As the court of

appeals held, petitioner should have raised its Takings

Clause claim at the outset in its petition for review from

the Board’s order, which construed California law in the

same way the California Supreme Court ultimately did.

Id. at 3a-4a.° If petitioner had done so, that claim could

have been taken into account by the D.C. Circuit in de-

ciding whether to certify the state-law issue, and by the

California Supreme Court in answering that question.

See id. at 4a.

Petitioner did not file a petition for a writ of certio-

rari challenging the court of appeals’ May 2008 judg-

ment enforcing the Board’s order on the ground that it

resulted in a taking of petitioner’s property without just

compensation, and any such petition would have failed

* The court of appeals did not decide whether petitioner forfeited its

constitutional argument for the additional reason that petitioner had

failed to raise it before the Board in the first instance. App., infra, 2a-

3a. Section 10(e) of the Act, 29 U.S.C. 160(e), deprives an appellate

court, including this Court, of jurisdiction to review any issue not raised

before the Board. See Woelke & Romero Framing, Inc. v. NLRB, 456

U.S. 645, 665-666 (1982), That bar applies even to those belated chal-

lenges to a Board order that are constitutional in nature. See /nterna

tional Ladies’ Garment Workers’ Union, Upper S. Dep't v. Quality

Mfg. Co., 420 U.S. 276, 281 n.3 (1975) (holding that party’s due process

challenge was barred by Section 10(e)); Polynesian Cultural Ctr, Inc.

v. NLRB, 582 F.2d 467, 473 (9th Cir. 1978) (same with regard to party's

First Amendment challenge).

in light of petitioner’s forfeiture of its Takings Clause

argument. See United States v. United Foods, Inc., 533

U.S. 405, 416-417 (2001) (declining to permit petitioner

to assert new substantive arguments attacking the judg-

ment when those arguments were not pressed or passed

on by the court below). Although petitioner's forfeiture

of its federal constitutional claim in the federal court

where the enforcement proceeding was pending would

have caused this Court to deny a petition for review

from the court of appeals, plainly that consequence of

petitioner’s waiver gives petitioner no greater claim to

“finality” with respect to the state court’s opinion an-

swering the certified question of state law.°

2. Even assuming that the opinion of the California

Supreme Court is a final judgment for purposes of Sec-

tion 1257(a), the petition for a writ of certiorari should

be denied for a second, independent reason—petitioner

failed to present in a timely fashion its federal constitu-

tional claim to the state court, which did not address it.

Section 1257(a) grants this Court jurisdiction to review

the final judgment of a state court “where any title,

right, privilege, or immunity is specially set up or

claimed under the Constitution or the treaties or stat-

utes of * * * the United States.” 28 U.S.C. 1257(a).

° In its response to the court of appeals’ order to show cause,

petitioner urged the court of appeals to stay its proceedings, in order

to give this Court the “first opportunity,” through a petition for a writ

of certiorari to the California Supreme Court that had yet to be filed,

“to resolve the U.S. Constitutional issues raised by the manner in which

the California Supreme Court answered [the court of appeals’ certified

question.” 04-1411 Pet. Resp. to Order to Show Cause 6-7 (D.C, Cir.).

That suggestion inverts the proper order. The lower courts should first

have an opportunity to address the constitutional question, or resolve

the case on other grounds and thereby obviate the need for the con-

stitutional issue to be resolved.

Because petitioner did not raise its constitutional claim

before the state court in a timely fashion, review by this

Court under Section 1257(a) would be inappropriate.’

This Court has long “adhered to the rule in reviewing

state-court judgments under 28 U.S.C. § 1257(a) that [it]

will not consider a petitioner’s federal claim unless it

was either addressed by or properly presented to the

state court that rendered the decision [the Court has]

been asked to review.” Adams v. Robertson, 520 U.S.

83, 86 (1997) (per curiam); see Howell v. Mississippi,

543 U.S. 440, 443 (2005) (per curiam); Webb v. Webb, 451

U.S. 493, 496-497 (1981). Because the California Su-

preme Court decision “is silent on [the] federal ques-

tion,” this Court will “assume that the issue was not

properly presented” unless petitioner carries “the bur-

den of defeating this assumption.” Adams, 520 U.S. at

86-87. Petitioner fails to carry that burden here.

Petitioner concedes that it did not raise the issue

until its petition for rehearing in the California Supreme

Court. Pet. 11-12. As such, that argument was proce-

durally defaulted under that court’s “well settled” rule

that it will not entertain arguments “raised for the first

time in a petition for rehearing.” Reynolds v. Bement,

116 P.3d 1162, 1172-1178 (Cal. 2005) (citation omitted).

The California Supreme Court denied the petition for

rehearing without comment. Pet. App. 54. This Court

” Many decisions of the Court have discussed the requirement that

a federal question be pressed or passed upon by the state court as a

jurisdictional limitation under Section 1257(a) and its statutory ante-

cedents. See, e.g., State Farm Mut. Auto. Ins. Co. v. Duel, 324 US.

154, 160 (1945); Crowell v. Randell, 35 U.S. (10 Pet.) 368, 392 (1836)

(Story, J.). More recently, the Court has declined to decide whether the

rule is “jurisdictional or prudential.” Adams v. Robertson, 620 U.S. 83,

90 (1997) (per curiam); see Yee v. City of Escondido, 503 U.S. 519, 533

(1992); Illinois v. Gates, 462 U.S. 213, 219 (1983).

has consistently assumed that a state court’s silence in

the face of belatedly-raised issues is “due to want of

proper presentation.” Board of Dirs. of Rotary Int'l v.

Rotary Club, 481 U.S. 587, 549-550 (1987) (Rotary Int'l)

(quoting Exxon Corp. v. Eagerton, 462 U.S. 176, 181 n.3)

(1983)). Accordingly, this Court will “refuse[] to con-

sider issues raised clearly for the first time in a petition

for rehearing when the state court is silent on the ques-

tion.” Adams, 520 U.S. at 89-90 n.3 (citing Rotary Intl,

481 U.S. at 549-550; Hanson v. Denckla, 357 U.S. 235,

244 n.4 (1958); Radio Station WOW, 326 U.S. at 128).

Petitioner nonetheless urges, relying on this Court’s

decision in Cox, that by presenting its Takings Clause

argument to the California Supreme Court in the peti-

tion for rehearing, petitioner preserved the issue for

this Court’s review. Pet. 1-2. In Cox, however, the state

court’s denial of rehearing was accompanied by the

statement that “[a] majority of this court does not con-

sider this statute to be in conflict with the [U.S. Consti-

tution].” 420 U.S. at 476 (citations omitted). The ab-

sence of any comment from the California Supreme

Court on the merits of the constitutional issue on which

petitioner seeks review by this Court distinguishes this

case from Cox. See Eugene Gressman et al., Supreme

Court Practice 193-194 (9th ed. 2007) (“To constitute a

reviewable judgment” under Section 1257(a), “the order

denying the petition for rehearing must be more than a

cursory recitation that the petition has been fully or

maturely considered,” rather, “[tJhere must be language

indicating that the federal question was considered and

disposed of.”).

Moreover, although this Court has indicated that a

party adequately preserves a federal claim if it presents

it upon its first opportunity, such as “when the highest

state court renders an unexpected interpretation of

state law or reverses its prior interpretation,” Prune-

Yard Shopping Ctr. v. Robins, 447 U.S. 74, 86 n.9 (1980),

that rule is of no benefit to petitioner here. In Prune-

Yard Shopping Center, the Court held that the mall

owners were not barred from raising a federal constitu-

tional claim by their failure to raise that claim before

the lower state courts, which were bound by state su-

preme court precedent favorable to the mall owners. /d.

at 86-87 n.9. The Court noted, however, that “[o|nce

before the California Supreme Court,” which had the

power to overrule that precedent, the mall owners “ex-

plicitly presented their federal constitutional right” in

their brief. /bid. Here, by contrast, petitioner failed to

assert its federal right before the California Supreme

Court until the petition for rehearing, even though the

Board’s decision, which tracked the analysis of the Cali-

fornia Supreme Court’s own opinion in relevant regard,

had already found that California law protected the

right of the picketers to urge a boycott of a mall tenant.

App., infra, 27a-29a. As the D.C. Circuit stated, in hold-

ing that petitioner had waived its constitutional argu-

ment in the D.C. Circuit as well by failing to raise it ini-

tially in its petition for review from the Board’s decision,

“the decision of the Supreme Court of California did not

inject any new constitutional issue into the case,” but

rather “merely confirmed that the interpretation of Cal-

ifornia law long followed by the Board was correct.” /d.

al 4a.

3. As noted above, the Board did not participate in

briefing or argument before the California Supreme

Court because, as the Board explained, the NLRA

merely gives effect to state property law, and the Board

therefore “has no institutional interest in how California

resolves the state property law question” that the D.C.

Circuit certified. App., infra, 35a.

Although the Board has no interest in the resolution

of the question of state law per se, we note that peti-

tioner’s disagreement with the state court’s construction

of state law does not rise to the level of a federal consti-

tutional violation. Just as the Board takes state-law

property rights as the starting point of its analysis, this

Court takes “the restrictions that background principles

of the State’s law of property and nuisance already place

upon land ownership” as the baseline against which a

Takings Clause challenge under the federal Constitution

is measured. Lucas v. South Carolina Coastal Council,

505 U.S. 1008, 1029 (1992). Even if a state supreme

court’s judgment might violate the Fifth Amendment if

it were merely a “pretext[]” for “eliminat[ing} property

rights,” see Stevens v. City of Cannon Beach, 510 U.S.

1207, 1211 (1994) (Sealia, J., dissenting from the denial

of certiorari); see also Lucas, 505 U.S. at 1031 (citing

Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S.

155, 164 (1980)), no such claim could be made here.

The California Supreme Court construed state prop-

erty law in light of language that has been part of the

California Constitution without substantive change since

its original adoption in 1849. Compare Cal. Const. Art.

1, § 2(a), with Cal. Const. of 1849, Art. 1, § 9. The ques-

tion presented, both before the Board and the California

Supreme Court, was the proper construction of that con-

stitutional guarantee in light of the state court’s 1979

Pruneyard decision, which this Court affirmed, Prune-

Yard Shopping Ctr., 447 U.S. at 88. See Pet. App. 7-9;

App., infra, 27a-28a." Even the dissenters in the Cali-

fornia Supreme Court characterized the question as

whether the court “should overrule Pruneyard” or else

distinguish it. Pet. App. 35. This is hardly a case, there-

fore, in which a state court has “by ipse dirit * * *

transform[ed] private property into public property

without compensation.” Lucas, 505 U.S. at 1031 (quot-

ing Webb’s Fabulous Pharmacies, 449 U.S. at 164).

Accordingly, even if petitioner could overcome the

obstacles to certiorari resulting from its failure to file a

certiorari petition to review the operative final judg-

ment of the D.C. Circuit in this case—and from its fail-

ure to raise the federal constitutional issue in a timely

manner before either the D.C. Circuit or the California

Supreme Court—review by this Court would not be war-

ranted.

* The California Supreme Court found that its conclusion regarding

the question presented was supported by other California decisions that

redated Pruneyard by as much as fifteen years. See Pet. App. 19.

‘ J + p

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

GREGORY G. GARRE

RONALD MEISBURG Acting Solicitor General

General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

JOHN H. FERGUSON

Associate General Counsel

LINDA DREEBEN

Deputy Associate General

Counsel

DAVID HABENSTREIT

Assistant General Counsel

JASON WALTA

Attorney

National Labor Relations

Board

AUGUST 2008

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 04-1411

Consolidated with

05-1027 & 05-1039

FASHION VALLEY MALL, LLC., PETITIONER

UV.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT

GRAPHIC COMMUNICATIONS CONFERENCE,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

LOCAL 432(M), INTERVENOR

Argued: Dec. 13, 2005

Decided: May 9, 2008

ON PETITION FOR REVIEW AND

APPLICATION AND CROSS-APPLICATION FOR

ENFORCEMENT OF AN ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

Before: SENTELLE, Chief Judge, GINSBURG, Circuit

Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Cireuit Judge GINS-

BURG.

GINSBURG, Circuit Judge:

(la)

Fashion Valley owns a shopping mall in San Diego,

California. It allows individuals and organizations to

engage in expressive activities on its premises if they

get a permit; in order to get a permit, an applicant must

promise not to urge consumers to boycott any of the

mall’s tenants. The NLRB concluded this policy vio-

lated the right to free speech guaranteed by the Consti-

tution of California and therefore held it was an unfair

labor practice; Fashion Valley petitioned this court for

review. We agreed that “whether Fashion Valley vio-

lated the [Nationa] Labor Relations] Act depends upon

whether it had the right, under California law, to main-

tain and enforce its anti-boycott rule.” 451 F.3d 241, 242

(2006). Accordingly, we certified that question to the

Supreme Court of California, which held Fashion Val-

ley’s policy violated the right to free speech guaranteed

by the Constitution of California, 42 Cal. 4th 850, 69 Cal.

Rptr. 3d 288, 172 P.3d 742 (2007), and later denied Fash-

ion Valley’s petition for rehearing.

Fashion Valley now claims the interpretation of the

Constitution of California requiring it to allow protest-

ers on its premises to urge a boycott of its tenants’

stores violates its rights under the Fifth and Fourteenth

Amendments to the Constitution of the United States.

It concedes, however, that it did not raise its constitu-

tional argument until it petitioned the Supreme Court of

California for rehearing. The Board argues the argu-

ment is forfeit because Fashion Valley did not raise it

during the agency proceeding.

Whether Fashion Valley was required to raise its

argument before the Board is not clear. “[T]here is [no]

bright-line rule allowing litigants to bypass administra-

tive [process] simply because one or all of their claims

are constitutional in nature,” Marine Mammal Conser-

vancy, Ine. v. Dep’t of Agric., 1384 F.3d 409, 413 (D.C.

Cir. 1998), but we have stated we may excuse a failure to

exhaust administrative remedies when exhaustion would

be “futile” because a claim involves “the constitutional-

ity of a [federal] statutory provision” and would there-

fore be “beyond [the agency’s| competence to decide.”

Ryan v. Bentsen, 12 F.3d 245, 247 (D.C. Cir. 1993). The

Board has never said it lacks jurisdiction to decide

whether a state law is constitutional, cf; Univ. of Great

Falls, 331 NLRB No. 188, 2000 WL 1283042 at *2 (2000)

(holding it beyond Board’s authority to pass upon consti-

tutionality of a federal statute), vacated on other

grounds, 278 F.3d 1335 (D.C. Cir. 2002), but clearly it

has been disinclined to do so. Waremart Foods, 337

NLRB 289, 289 (2001) (“[W]e decline the Respondent’s

invitation to independently evaluate the constitutionality

of the State law”), vacated on other grownds, 354 F.3d

870 (D.C. Cir. 2004); Varied Enters. v. Crowder, 240

NLRB 126, 132 (1979) (“It is the general rule of law that

a state statute is presumed to be constitutional until it is

repealed by the legislature, or until its nullity is de-

clared by a court of competent jurisdiction”).

We need not wade into such murky waters in this

case: We have no doubt Fashion Valley forfeited its con-

stitutional argument because it did not raise that argu-

ment in its petition for review by this court. See, e.g.,

Nat'l Steel & Shipbuilding Co. v. NLRB, 156 F.3d 1268,

1273 (D.C. Cir. 1998) (“[Petitioner] failed in its opening

brief to this court to contest the Board’s finding. . . .

Consequently, that claim is waived”). Fashion Valley

could and should have argued that if the Board’s under-

standing of California’s constitutional guarantee of free

speech was correct, then that free speech provision, as

applied, violated the Constitution of the United States.

Having that argument before us would have facilitated

our decision to certify the question of state law to the

Supreme Court of California. See Arizonans for Official

English v. Arizona, 520 U.S. 48, 79, 1178S. Ct. 1055, 137

L. Ed. 2d 170 (1997) (noting that certification is espe-

cially appropriate “when a federa! court is asked to in-

validate a State’s law” because the federal court “risks

friction-generating error”). More important, with that

argument a part of the case, the Supreme Court of Cali-

fornia might have made a special effort to construe the

state constitution so as to avoid any potential conflict

with federal constitutional law.

Fashior Valley resists this conclusion, contending “it

would have been impossible for [it] to have presented, or

for the Board to have resolved, U.S. Constitutional is-

sues created by a decision which had not yet been is-

sued.” But the decision of the Supreme Court of Califor-

nia did not inject a new constitutional issue into the case.

The Board’s understanding of California law had been

part of this case from the time the Buard’s General

Counsel filed the first brief before the Board; the Su-

preme Court of California merely confirmed that the

interpretation of California law long followed by the

Board was correct. See, e.g., Glendale Assocs., 335

NLRB 27 (2001), enfd, 347 F.3d 1145 (9th Cir. 2003); see

also Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899,

153 Cal. Rptr. 854, 592 P.2d 341 (Cal. 1979), aff’d, 447

U.S. 74 (1980). Fashion Valley had no reason to wait

until the Supreme Court of California rendered its deci-

sion to pursue its constitutional claim.

Therefore, without deciding whether Fashion Valley

was required to raise its constitutional argument before

the Board in the first instance, we hold the argument is

forfeit because it was not timely raised before this court.

Fashion Valley’s petition for review is accordingly de-

nied and the Board’s cross-application for enforcement

is pranted.

So ordered.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

No. 04-1411

Consolidated with 05-1027, 05-1039

FASHION VALLEY MALL, LLL., PETITIONER

NATIONAL LABGR RELATIONS BOARD, RESPONDENT

(Filed: Dec. 31, 2007]

ORDER

BEFORE: GINSBURG, Chief Judge, SENTELLE, Circuit

Judge, and WILLIAMS, Senior Circuit Judge

Fashion Valley Mall, LLC petitioned for review, and

the National Labor Relatiosn Board cross-applied for

enforcement, of the order in Equitable Life Asswrance

Society of the United States, et al., 343 N.L.R.B. 438

(2004). This court certified to the Supreme Court of

California the question whether Fashion Mall, LLC v.

NLRB, 451 F.3d 241, 246-47 (D.C. Cir. 2006).

Upon consideration of the decision of the Supreme

Court of California holding Fashion Valley’s policy vio-

lates the Constitution of California, Fashion Valley

Mall, LLC v. NLRB, No. 8144753, Cal. Rptr. 3d

, 2007 WL 4472241 (Dec. 24, 2007), it is

ORDERED, on the court’s own motion, that peti-

tioner show cause, within 30 days of the date of this or-

der, why the court should not deny its petition for re-

view and grant the Board’s cross-application for en-

forcement. Petitioner’s response to this order may not

exceed ten pages.

The Clerk is directed to send a copy of this order to

petitioner both by certified mail, return requested, and

by first class mail.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

LINDA JONES

Deputy Clerk

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 04-1411, 05-1027, 05-1039

FASHION VALLEY MALL, LLC., PETITIONER

Vv;

NATIONAL LABOR RELATIONS BOARD, RESPONDENT

GRAPHIC COMMUNICATIONS CONFERENCE,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

LOCAL 432(M), INTERVENOR

Argued: Dec. 138, 2005

Decided: June 16, 2006

ON PETITIONS FOR REVIEW OF AN ORDER OF

THE NATIONAL LABOR RELATIONS BOARD

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 WIL-

LIAMS.

GINSBURG, Chief Judge.

Fashion Valley Mall, LLC, which is owned and oper-

ated by the Equitable Life Assurance Society and ITC

Fashion Valley Corporation, allows individuals and orga-

nizations to engage in expressive activities on its pre-

mises 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 Val-

ley 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 Cali-

fornia 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

10a

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 Interna-

tional Union gathered outside the Robinsons-May de-

partment 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 ad-

vertises in the paper and is located not far from the pa-

per’s premises.

The protestors distributed a handbill addressed”

Dear customer of Robinsons-May” that outlined the Un-

ion’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

“fe lall Gene Bell, CEO at the Union Tribune.” In clos-

ing, the handbill mentioned that “Robinsons-May adver-

tises with the Union-Tribune.” After about 15 minutes

a representative of Fashion Valley approached the pro-

testors, explained that a permit was required for expres-

sive activity, and told them to leave the premises, which

they did.

Thereafter, instead of applying for a permit, the Un-

ion 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 ex-

ercise of the rights guaranteed in section 7” of the Act,

to wit,

lla

. . 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 pur-

pose 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 em-

ployer has a property right sufficient to deny access

to nonemployee union representatives. . . . [AJn

employer cannot exclude individuals exercising Sec-

tion 7 rights if the State law would not allow the em-

ployer 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 Rob-

insons-May department store, from otherwise lawful

consumer boycott handbilling. Accordingly, we find

[Fashion Valley] violated Section 8(a)(1) by maintain-

ing 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 Com-

pany violated § 8(a)(1) by “requir[ing] [the Union’s] ad-

herence to [the] unlawful rule” in its permit application

12a

process. Jd. 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 rea-

sonable and consistent with applicable precedent, see

Local 702, Int’l Bhd. of Elec. Workers, AFL-CIO ».

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 def-

erence afforded to agency interpretation of state law

absent agency expertise on the subject).

As mentioned, the Board determined Fashion Va'iey

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 ad-

herence 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.” 348 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 non-

employee union organizers from its property “except in

the rare case where the inaccessibility of employees

makes ineffective the reasonable attempts by non-em-

l3a

ployees to communicate with them through the usual

channels.” Jd. 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 Ware-

mart 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 Fash-

ion Valley acting within its rights under California law?

A. The National Labor Relations Act

Fashion Valley does not challenge the Board’s posi-

tion 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, con-

test the Board’s further determination that Fashion Val-

ley 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; there-

fore the Union would have received a permit had it ap-

plied for one. Further to this point, Fashion Valley ar-

’ Fashion Valley does not challenge the Board's assumption that be-

cause 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 rela-

tionship—a matter upon which we express no opinion.

l4a

gues that because its permit application “does not high-

light 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 vio-

lated § 8(a)(1).

We agree with the Board. Although Fashion Valley

is correct that there is not substantial evidence the Un-

ion intended to boycott any of the Mall’s tenants, noth-

ing in the Act prohibits the Union from carrying out a

secondars 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 interfered

with the employees’ rights under § 7 of the Act. That

Rule 5.6.2 comprised only three lines of text is irrele-

vant; 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 em-

ployees altogether. See Waremart, 354 F.3d at 872.

15a

B. The Constitution of California

The Supreme Court of California has ruled that “the

California Constitution protect[s] speech and petition-

ing, 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, 592 P.2d 341 (1979). Valley therefore

seeks refuge in the “reasonably exercised” limitation

upon petitioning, pointing out that the Court in Prune-

yard 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, 592 P.2d

341, and reasoning that Rule 5.6.2 is lawful because it

merely protects the Mall “from disruption of normal

business operations and TTT interference with customer

convenience.” H-CHH Assocs. v. Citizens for Represen-

tative Gov't, 193 Cal. App. 3d 1193, 1208, 238 Cai. Rptr.

841, 850 (1987); see also Diamond v. Bland, 3 Cal. 3d

653, 666, 91 Cal. Rptr. 501, 509, 477 P.2d 733 (1970) (par-

ties may restrict speech in order to prevent “obstruction

of or undue interference with normal business opera-

tions”); In re Hoffman, 67 Cal. 2d 845, 852, 64 Cal. Rptr.

97, 101, 434 P.2d 353 (1967) (protestors not permitted to

“interfere[ | with the conduct of the railroad business”).

In the Company’s view, that is, the Union’s constitu-

tional 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 com-

merce and to promote the business of its merchant ten-

ants.” H-CHH Assocs., 238 Cal. Rptr. at 859. According

to Fashion Valley, in urging a boycott “what the protes-

tor is asking the customer to do . . . is inherently in-

consistent with the dedicated purpose of the shopping

l6a

eenter—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, 841

P.2d 975 (1992). Under Fashion Valley’s reading of

Clark, all “property other than streets and parks,” and

hence the Mall, 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, 993 P.2d 334 (2000), 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, 993 P.2d

334, upheld an ordinance that banned “all solicitation in

certain defined places” and “aggressive” solicitation in

any public place, 93 Cal. Rptr. 2d at 7, 993 P.2d 334.

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 mis-

reads Pruneyard and H-CHH Associates to mean “Cali-

fornia has created a forum open to all speech except for

17a

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 opera-

tions” means only that a shopping mall may impose ap-

propriate time, place, and manner restrictions on ex-

pressive 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 shop-

ping centers are required to respect individual free

=peech rights on their premises to the same extent that

government entities are bound to observe state and fed-

eral free speech rights.” Jd. at 1154. The Board also

adverts to our decision in Waremart, in which we held

that under California law a grocery store could exclude

union hand-billers from its parking lot, but in passing

noted that in Pruneyard the Supreme Court of Califor-

nia “reasoned that shopping centers had become the

functional! equivalents of ‘miniature downtowns’ and

should be treated as public forums, from which expres-

sive 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 en-

couraging, in atiy manner, customers not to purchase the

merchandise or services offered by any Mall tenant.” In

Glendale, the Ninth Circuit held a shopping mall regula-

tion 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-neutrai be-

18a

cause it was “based on hostility . . . towards the under-

lying message expressed.” Jd. 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 be-

cause 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 de-

cided whether a shopping center may lawfully ban from

its premises speech urging the public to boycott a ten-

ant. The case closest in point is UNITE v. Superio~

Court of Los Angeles County, 56 Cal. App. 4th 996, 1020,

65 Cal. Rptr. 2d 838, 854 (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 im-

permissible content-based regulation of expressive activ-

ities” in violation of the State Constitution, it did not

determine whether the rules actually were unconstitu-

tional because the issue had not been 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. Conelusion

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 Califor-

nia court has resolved. Because we owe no deference to

the Board’s interpretation of the Constitution of Califor-

nia and can only guess how the Supreme Court of Cali-

fornia would resolve the issue, we shall certify to that

court the following question:

iYa

Under California law may Fashion Valley maintain

and enforce against the Union its Rule 5.6.2?

Pursuant to Rule 293 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. Cp. at 244 n.* ob-

serves, 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-Tri-

bune) is subject to the duties (vis-a-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

20a

issue, and the question of California constitutional law

is properly before us (and in turn certified).

But Fashion Valley did challenge the Board’s conclu-

sion that it (Fashion Valley) violated § 8(a)(1) “by en-

forcing Rule 5.6.2, i.e., by vequiring the instant applica-

tion 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 Robin-

sons-May store,” id. at 1, 7, the majority correctly re-

verses that finding. See Maj. Op. at 244 (agreeing with

Fashion Valley’s contention “that there is not substan-

tial 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 ir-

relevant.

Having removed the factual support from the

Board’s position, the court goes on to affirm on different

grounds, disregarding the familiar principles of Securi-

ties and Exchange Comm’n v. Chenery Corp., 318 U.S.

80, 87-88, 63 S. Ct. 454, 87 L. Ed. 626 (1943). The court

says that “Fashion Valley interfered with the employees’

rights” by “subjecting the Union to a permit process

that required [the Union] vo forswear use of a lawful tac-

tic.” Maj. Op. at 244. This evidently rests on the

Board’s conclusion that “inasmuch as the application

process requires adherence to an unlawful rule, [Fash-

ion Valley] may not enforce it.” 343 N.L.R.B. No. 57 at

2la

2 (emphasis added). The referent for the word “it” is

unclear. The majority reads “it” as the application pro-

cess. Thus, under the majority’s reading, a firm impos-

ing 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 ma-

jority thus eviscerates much of the distinction between

enforcement and maintenance. Fashion Valley main-

tained 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.” Jd. 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 the supposed “enforcement”) of the very exis-

tence 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 Coast Bldg. & Constr.

Trades Council, 485 U.S. 568, 588-87, 108 S. Ct. 1e %2, 99

L. Ed. 2d 645 (1988), nothing in the NLRA barred the

union from carrying out a secondury boycott by peaceful

handbilling. Maj. Op. at 244. True. But of course that

tells us little or nothing about the possib!< 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 rea-

22a

soning for the Board’s—in concluding that when a com-

pany conditions leafleting on submission of an applica-

tion it automatically “enforces” any rule (that a success-

ful applicant would be required to obey) against persons

who have neither contemplated conduct that might vio-

late the rule nor learned of the rule’s existence.

23a

APPENDIX D

NATIONAL LABOR RELATIONS BOARD

WASHINGTON, D.C.

Case 21-CA-33004

EQUITABLE LIFE ASSURANCE SOCIETY OF THE

UNITED STATES AND ITC FASHION VALLEY CORPORA-

TION D/B/A FASHION VALLEY SHOPPING CENTER AND

GRAPHIC COMMUNICATIONS INTERNATIONAL UNION,

LOCAL 432M, AFL-CIO

Oct. 29, 2004

DECISION AND ORDER

BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN

AND WALSH

On September 26, 2001, Administrative Law Judge

William L. Schmidt issued the attached decision. The

Respondent filed exceptions and a supporting brief. The

General Counsel filed an answering brief and the Re-

spondent filed a reply brief. The General Counsel filed

cross-exceptions and a supporting brief, and the Re-

spondent filed an answering brief.

The National Labor Relations Board has delegated

its authority in this proceeding to a three-member panel.

The Board has considered the decision and the re-

cord in light of the exceptions and briefs and has decided

24a

to affirm the judge’s rulings, findings,’ and conclusions

as modified and to adopt the recommended Order as

modified and set forth in full below.”

Introduction

The complaint alleges, in pertinent part, that the

Respondent violated Section 8(a)(1) by: (1) maintaining

a rule prohibiting consumer boycott handbilling, Rule

5.6.2; and (2) enforcing this rule and unlawfully exclud-

ing union handbillers at the entrances to the Robinsons-

May department store at the Fashion Valley Shopping

Center on October 4, 1998. The judge found that the

exclusion of the handbillers violated Section 8(a)(1). For

the reasons that follow, we agree with this finding.

The judge declined to rule on the separate complaint

allegation that the maintenance of the rule prohibiting

consumer boycott handbilling also was unlawful. The

General Counsel has excepted to the judge’s failure to

find this additional violation of Section 8(a)(1). For the

reasons that follow, we find merit to this exception.

' The Respondent has excepted to some of the judge’s credibility

findings. The Board’s established policy is not to overrule an adminis-

trative law judge’s credibility resolutions unless the clear preponder-

ance of all the relevant evidence convinces us that they are incorrect.

Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362

(3d Cir. 1951). We have carefully examined the record and find no basis

for reversing the findings.

There are no exceptions to the judge’s finding that, under California

law, time, place, and manner rules can be applied to labor activity

conducted at private shopping malls or large stand-alone shopping

facilities in California; and that among the time, place, and manner

rules allowed under California law are rules requiring the disclosure of

the names of the persons who seek to engage in expressive activity.

> We have modified the Order and Notice to more accurately reflect

the violations found.

25a

Facts

The judge has fully set out the facts. In brief, the

Respondent owns and operates a retail shopping mall in

San Diego, California, known as the Fashion Valley

Shopping Center (the “Mall”). The Respondent leases

space at the Mall to tenants who are engaged in retail

sales to the public. The Robinsons-May department

store is one of the larger tenants at the Mall and occu-

pies space in a freestanding building at the east end of

the Mall. The store is surrounded on three sides by

parking areas and on the west side by a separate build-

ing housing a Saks Fifth Avenue store and another

building housing a number of small retailers. The Re-

spondent retains Jones, Lang, LaSalle Americas, Inc.

(La Salle) to manage and operate the Mall on its behalf.

The Respondent has adopted Rules and Regulations

applicable to all individuals and organizations seeking to

engage in expressive activities at the Mall. Respon-

dent’s Rule 5.6.2 expressly prohibits applicants and par-

ticipants from “impeding, competing, or interfering with

the business of one or more of the stores or merchants

in the shopping center by . . . urging, or encouraging

in any manner, customers not to purchase the merchan-

dise or services offered by one or more of the stores or

merchants in the shopping center.” Respondent’s Rules

and Regulations also include an application-permit pro-

cess for all individuals and organizations seeking to en-

gage in expressive activities at the Mall, which, among

other things, requires each applicant to agree to abide

by all of the Mall’s Rules and Regulations, including

Rule 5.6.2. Since the rules were established, the Re-

spondent has required all individuals and organizations

26a

that seek to engage in expressive activity to apply for

and receive a permit prior to engaging in the activity.

On October 4, 1998,* union. members and supporters

distributed handbills* vi the sidewalk outside the en-

trances to the Robinsons-May department store to per-

sons entering and leaving the store, and to other per-

sons on their way to other Mall stores or parking areas.

Shortly after the handbilling began, officials from La

Salle stopped the handbilling, and told the handbillers

that they were on private property and should have sub-

mitted an application for a permit to engage in expres-

sive activity at the Mall. The handbillers were handed

the Respondent’s standard trespass notice, offered an

expressive activity application, and warned that they

would be subject to civil litigation and/or arrest if they

did not leave. The handbillers promptly ceased their

activity, left the Mall’s premises, and relocated to public

property where they continued to handbill for an addi-

tional 15 minutes. On October 22, by letter directed to

the Union’s counsel, counsel! for the Mall sought to com-

pel the Union to complete the Mall’s application as a

prerequisite to engaging in expressive activity at the

Mall.

3 All dates hereinafter refer to 1998 unless otherwise indicated.

* The Union was involved in a primary labor dispute with the San

Diego Union-Tribune newspaper. The handbill highlighted particular

aspects of the Union’s dispute with the Union-Tribune newspaper,

urged Robinsons-May Department Store employees to remain on the

job, asked consumers to call the Union-Tribune CEO on behalf of the

Union, and concluded: “Robinsons-May advertises with the Union-

Tribune.”

27a

Analysis

The pertinent principles are set forth in Glendale

Associates, 335 NLRB 27, 28 (2001), enfd. 347 F.3d 1145

(9th Cir. 2003):

In Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), the

Supreme Court held that an employer may lawfully

bar nonemployee union organizers from private

property (unless the employees are inaccessible

through usual channels). In the absence of a private

property interest, however, the Court’s holding in

Lechmere is not controlling. See Bristol Farms, 311

NLRB 487, 438 fn. 6 (1993) (“employer’s exclusion of

union representatives from private property to which

the employer lacks a property right entitling it to

exclude individuals likewise violated Section 8(a)(1)

assuming the union representatives are engaged in

Section 7 activities”). See also /ndio Grocery Outlet,

323 NLRB 1138, 1142 (1997), enfd. sub nom. NLRB

v. Calkins, 187 F.3d 1080 (9th Cir. 1999).

The Board looks to State law to ascertain whether

an employer has a property right sufficient to deny

access to nonemployee union representatives. Bris-

tol Farms, 311 NLRB at 438. The Board does so be-

cause it is State law, not the Act, that creates and de-

fines the employer’s property interest. Thus, an em-

ployer cannot exclude individuals exercising Section

7 rights if the State law would not allow the employer

to exclude the individuals. Id. at 438; Johnson &

Hardin Co., 305 NLRB 690 (1991).

California law permits the exercise of speech and

petitioning in private shopping centers, subject to rea-

sonable time, place, and manner rules adopted by the

28a

property owner. Robins v. Pruneyard Shopping Center,

23 Cal. 3d 899 (1979), affd. 447 U.S. 74 (1980); Glendale,

supra, 335 NLRB at 28. Rule 5.6.2, however, is essen-

tially a content-based restriction and not a time, place,

and manner restriction permitted under California law.

That is, the rule prohibits speech “urging or encourag-

ing in any manner” customers to boycott one of the

shopping center stores. By contrast, there is no evi-

dence in the record explaining how Rule 5.6.2 regulates

the time, place, or manner of speech at the Mall.

Rather, it appears that the purpose and effect of this

rule was to shield the Respondent’s tenants, such as the

Robinsons-May department store, from otherwise lawful

consumer boycott handbilling. Accordingly, we find that

the Respondent violated Section 8(a)(1) by maintaining

Rule 5.6.2.° See Glendale, supra.

° In light of our finding above, we find it unnecessary to rely on the

judge’s finding that Rule 5.6.2 was impermissible under the California

law set forth in Sears, Roebuck & Co. v. San Diego County Dist.

Counsel of Carpenters, 25 Cal. 3d 317 (1979), Jn re Lane, 71 Cal. 2d 872

(1969), and Schwartz-Torrance Investment Corp. v. Bakery & Confec-

tionary Workers’ Union, 61 Cal. 2d 766 (1964), and we do not pass on

the judge’s discussion of those cases. Accordingly, there is no need for

us to address the D.C. Circuit's recent decision in Waremart Foods v.

NLRB, 354 F.3d 870(D.C. Cir. 2004), questioning whether Sears, Lane,

and Schwartz-Torrance remain good law.

We find it unnecessary to pass on the judge’s finding that the

Respondent unlawfully maintained a rule limiting expressive activities

to six “pre-approved” locations in the common areas of the mall. We

rely on the following reason. There was no allegation in the complaint

challenging this rule and the General Counsel’s cross-exceptions make

it clear that the General Counsel does not contend that the Respondent

violated the Act by maintaining sucha rule. In these circumstances, the

question of whether such a rule would be unlawful is not before us.

29a

We find, for similar reasons, that the Respondent

also violated Section 8(a)(1) by excluding the handbillers

on October 4. The Respondent contends that it was enti-

tled to exclude the handbillers because they did not ap-

ply for a permit to engage in handbilling, as its rules

require. As noted above, though, the Respondent’s ap-

plication-permit process requires each applicant to

agree to abide by all its rules anc regulations, including

Rule 5.6.2, which we have already found to be unlawful.

Thus, inasmuch as the application process requires ad-

herence to an unlawful rule, the Respondent may not

enforce it. Accordingly, we find that the Respondent

violated Section 8(a)(1) by enforeing Rule 5.6.2, i.e., by

requiring the instant application for a permit.

AMENDED CONCLUSIONS OF LAW

1. Respondent is an employer engaged in com-

merce or an industry affecting commerce within the

meaning of Section 2(2), (6), and (7) of the Act.

2. The Union is a labor organization within the

meaning of Section 2(5) of the Act.

3. The Respondent engaged in unfair labor prac-

tices in violation of Section 8(a)(1) of the Act by main-

taining and enforcing a rule prohibiting handbilling or

other expressive activity which urges, or encourages in

any manner, customers not to purchase the merchandise

or services offered by any one or more of the stores or

merchants in the Fashion Valley Shopping Center.

4. Respondent’s unfair labor practices affect com-

merce within the meaning of Section 2(6) and (7) of the

Act.

30a

5. The Respondent has not violated Section &(a)(1)

of the Act in any other manner except as specifically

found herein.

ORDER

The National Labor Relations Board orders that the

Respondent, Equitable Life Assurance Society and [ITC

Fashion Valley Corporation d/b/» Fashion Valley Shop-

ping Center, San Diego, California, its officers, agents,

successors, and assigns, shall

1. Cease and desist from

(a) Maintaining and enforcing a rule prohibiting

handbilling or other expressive activity protected by

Section 7 of the National Labor Relations Act which

urges, or encourages in any manner, customers not to

purchase the merchandise or services offered by any one

or more of the stores or merchants in the Fashion Valley

Shopping Center.

(b) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of the

rights guaranteed by Section 7 of the Act.

Z. Take the following affirmative action necessary

to effectuate the policies of the Act.

(a) Delete from its rules and regulations, and any

other document within its custody and control where

such rules may be contained, any rule which prohibits

handbilling or other expressive activity protected by

Section 7 of the National Labor Relations Act which ur-

ges, or encourages in any manner, customers not to pur-

chase the merchandise or services offered by any one or

more of the stores or merchants in the Fashion Valley

Shopping Center.

sla

(b) Within 14 days after service by the Region, post

at the facilities it maintains in connection with the oper-

ation of the Fashion Valley Shopping Center in San

Diego, California, copies of the attached notice marked

“Appendix.”” Copies of the notice, on forms provided by

the Regional Director for Region 21, after being signed

by the Respondent’s authorized representative, shall be

posted by the Respondent and maintained for 60 consec-

utive days in conspicuous places including all places

where notices to employees are customarily posted.

Reasonable steps shall be taken by the Respondent to

ensure that the notices are not altered, defaced, or cov-

ered by any other r.cterial. In the event that, during

the pendency of these proceedings, the Respondent has

gone out of business or closed the facility involved in

these proceedings, the Respondent shall duplicate and

mail, at its own expense, a copy of the notice to all cur-

rent employees and former employees employed by the

Respondent at any time since October 4, 1998.

and return to the Regional Director sufficient copies of

the notice for posting by the Union at its facility, if will-

ing, at all places vhere notices to members and employ-

ees are customarily posted.

(d) Within 21 days after service by the Region, file

with the Regional Director a sworn certification of a

responsible official on a form provided by the Region

* If this Order is enforced by a judgment of a United States court of

appeals, the words in the notice reading “Posted by Order of the Na-

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-

ment of the United States Court of Appeals Enforcing an Order of the

National Labor Relations Board.”

32a

attesting to the steps that the Respondent has taken to

comply.

Iv is FURTHER ORDERED that the complaint is dis-

missed insofar as it alleges violations of the Act not spe-

cifically found.

Dated, Washington, D.C. October 29, 2004

Robert J. Battista, Chairman

Wilma B. Liebman, Member

Dennis P. Walsh, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that

we violated Federal labor law and has ordered us to

post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union

Choose representatives to bargain with us on your

behalf

30a

Act together with other employees for your benefit

and protection

Choose not to engage in any of these protected ac-

tivities.

WE WILL NOT maintain or enforce a rule at the Fash-

ion Valley Shopping Center prohibiting handbilling or

other expressive activities protected by Section 7 of the

National Labor Relations Act which urges, or encour-

ages in any manner, customers not to purchase the mer-

chandise or services offered by any one or more of the

stores or merchants in the Fashion Valley Shopping

Center.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce you in the exercise of the rights

guaranteed you by Section 7 of the Act.

WE WILL modify our rules and regulations for ex-

pressive activities at Fashion Valley Shopping Center,

and any other decument within our custody and control

where such rules may be contained, to delete any rule

which prohibits handbilling or other expressive activity

protected by Section 7 of the National Labor Relations

Act which urges, or encourages in any manner, custom-

ers not to purchase the merchandise or services offered

by any one or more of the stores or merchants in the

Fashion Valley Shopping Center.

* kK KX K F

34a

APPENDIX E

[Seal Omitted]

United States Government

NATIONAL LABOR RELATIONS BOARD

OFFICE OF THE GENERAL COUNSEL

Washington, D.C. 20570

August 30, 2006

BY FE! RAL EXPRESS

Frederick K. Ohlrich

Court Administrator and

Clerk of the Supreme Court

350 McAllister Street

San Franciseo, CA 94102-4797

Re: S144753 - Fashion Valley Mall v. NLBR (Cali-

fornia Supreme Court)

Dear Mr. Ohlrich:

We have received your August 16, 2006 order, advising

us that you have accepted the request of the United

States Court of Appeals for the District of Columbia

Circuit in Fashion Valley Mall LLC v. NLRB, No. 04-

1411 (D.C. Cir. June 16, 2006) for an answer to a certi-

fied question of law. We appreciate your continuing to

keep us advised about the status of the case. Any future

correspondence should be directed to Aileen A. Arm-

strong, who is NLRB counsel of record in the federal

court proceedings.

The purpose of this letter is to inform you that the Na-

tional Labor Relations Board does not intend to partici-

pate in the resolution of the certified question. In the

Board decision under review by the District of Columbia

35a

Circuit, Equitable Life Assurance Society, 348 NLRB

No. 57, Board Case No. 21-CA-33004, the Board was

merely attempting to give effect to its understanding of

California property law. The Board has no institutional

interest in how California resolves the state property

law question that the District of Columbia Circuit deter-

mined was unclear and accordingly certified to this

Court.

As suggested by a representative of your office, we have

served a copy of this letter on counsel for the parties

with an interest in the resolution of the state property

law question before the Court. The property owners

here are: Fashion Valley Mall, LLC; Equitable Life

Assurance Society of the United States; ITC Fashion

Valley Corporation d/b/a Fashion Valley Shopping Cen-

ter. Those seeking access to the property are repre-

sented by Graphic Communications International Union,

Local 432M, who we understand has moved to intervene

in this state court proceeding.

Thank you for your attention in this matter. Please feel

free to contact me should you wish to discuss this matter

further.

Sincerely,

/s!) AILEEN A. ARMSTRONG

AILEEN A. ARMSTRONG

Deputy Associate General

Counsel

National Labor Relations

Board

Appellate Court Branch

202-273-2960

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.