Friday, October 31, 2003
Glendale Galleria Limitation on Union Leafleting Violated Free Speech Rights, Ninth Circuit Rules
By DAVID WATSON, Staff Writer
The Glendale Galleria violated the California free speech rights of union employees of the American Broadcasting Company when it barred them from leafleting in front of the mall’s Disney Store in 1997, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court upheld a National Labor Relations Board order requiring mall operators to stop enforcing a rule prohibiting distribution of literature which mentions a mall tenant, owner or manager by name. Members of Local 57 of the National Association of Broadcast Employees and Technicians distributed leaflets in front of the Disney Store during a labor dispute with ABC, which is also owned by Disney.
The leaflets encouraged Disney Store customers to contact Disney corporate headquarters and Congress to complain about Disney’s treatment of its employees. Mall security officers asked the leafleters to remove the Disney name from their literature, and when they refused told them they would be arrested for trespassing unless they left the mall.
The union filed an unfair labor practice charge against the mall operator, Glendale Associates, Ltd., and the NLRB affirmed an administrative law judge’s decision that the mall rule was an impermissible content-based restriction on free speech under the California Constitution.
Writing for the Ninth Circuit panel, Judge Harry Pregerson agreed.
Pregerson said the NLRB correctly concluded that Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), which allows an employer to bar nonemployee union organizers from private property unless employees are inaccessible to the union, does not apply where the exclusion is based on a rule that violates state law.
“The heart of this appeal turns on whether Petitioners had the state property right to exclude union representatives from naming a Galleria tenant on handbills the union representatives distributed on the Galleria premises,” the judge wrote. “Thus, we examine whether Petitioners’ rule is consistent with California free speech protections under the California Constitution.”
The applicability of free speech rights under Art. I, Sec. 2 of the California Constitution to activity in large shopping malls was established in Robins v. Pruneyard Shopping Ctr., 23 Cal.3d 899, (1979), Pregerson noted. While the state’s Supreme Court has “yet squarely to address” a rule like the Galleria’s which is purportedly based on a desire to avoid disruption of businesses, the judge said, “California and federal courts have invalidated content-based rules as unconstitutional when rules contain exceptions, and those exceptions implicate the same interests that motivate the restriction on the regulated content.”
The Galleria’s rule was “undermined” by its exception for “primary” labor disputes in which store employees were involved, the judge reasoned.
“Petitioners offer no reason why a secondary boycott, in which Union members boycott a company because of the company’s affiliation with their employer, might be more disruptive to business than a primary boycott. In fact, naming a tenant in a primary labor dispute has the potential to cause more damage to a Galleria tenant’s business because primary labor disputants directly attack the tenant’s practices. Because the speech Petitioners exempt from their rule invokes the very concerns that Petitioners use to justify the restricted speech, their rationale cannot be considered compelling.”
“[W]e hold that Petitioners acted without a state property interest in enforcing and promulgating a rule restricting certain groups from distributing literature that named a Galleria tenant, owner, or manager, on the Galleria premises. Petitioners’ rule is an impermissible content-based restriction on speech under the California Constitution. We thus hold that Petitioners violated the Union’s...rights by ordering, under threats of calls to the police, the Union to leave its premises unless it removed Disney’s name from its handbills.”
In a footnote, Pregerson pointed out that a “similar issue of a mall requiring content-checked approval of Union signs” was considered in 1997 by the Court of Appeal for this district in UNITE v. Superior Court, 56 Cal.App.4th 996 (1997). In that case the court’s Div. Four, in an opinion by Presiding Justice Charles Vogel, upheld restrictions imposed by shopping malls on a union which sought to picket Guess?, Inc. retail stores in order to publicize its dispute with the apparel manufacturer.
Pregerson noted Vogel’s comment that the mall’s requirement that the Guess? picketers submit signs for content-checking raised “intriguing constitutional issues.” But Pregerson said the state court found in UNITE that those issues had not been adequately preserved for appeal.
Judges A. Wallace Tashima and Senior Judge John T. Noonan concurred.
Los Angeles attorneys Thomas J. Leanse and Karen L. Stephenson of Katten Muchin Zavis Rosenman represented the Galleria on appeal. Stephenson said she had not yet read the court’s ruling and could not comment on it.
The case is Glendale Associates, Ltd. v. National Labor Relations Board, 01-71566.
Copyright 2003, Metropolitan News Company