The union filed an unfair labor practice charge with the National Labor Relations Board alleging that the mall owners interfered with their National Labor Relations Act rights by refusing to allow leafleting. The NLRB administrative law judge agreed, and found that enforcement of the mall’s anti-boycotting rule violated the National Labor Relations Act.
Fashion Valley sought appellate review with the D.C. Circuit. The federal appellate court stated that California law was unclear and certified the question to the state Supreme Court.
The California court held that the state’s constitution provides greater protection on freedom of speech than the First Amendment and extends to private property. The court acknowledged the mall’s ability to impose "reasonable regulations of the time, place and manner of such free expression to assure that these activities do not interfere with the normal business operations of the mall, but they may not prohibit certain types of speech based on its content." The mall’s rule was content-based because it precluded speech urging a boycott while allowing speech that did not. Fashion Valley Mall LLC v. NLRB, Cal., No. S144753 (12/24/2007).
Impact: In California, owners may not prohibit speech on their private property that has been opened up to the general public based solely on its content. Employers should carefully consider applicable state laws when they attempt to limit or restrict union activities.
Workforce Management, February 4, 2008, p. 6 -- Subscribe Now!