United Brotherhood of Carpenters & Joiners of America Local 586 v. National Labor Relations Board

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

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

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

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

THOMAS, Circuit Judge:

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

Macerich Management Company and Macerich Property Management Company (collectively "Macerich") operate as the managing agents for Arden Fair Mall and Capitola Mall ("the Malls"), respectively. The Malls are enclosed,…

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

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

I

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

According to Macerich, the general purpose of these rules is to safeguard the commercial activity…

concurring in part and dissenting in part:

I agree that Macerich’s efforts to impose content-based restrictions (rules 1, 2, and 4) on speech do not survive strict scrutiny. I respectfully dissent from the majority’s holding that Macerich’s admittedly content-neutral time, place, and manner restrictions (rules 3, 5, and 6) are unlawful under the National Labor Relations Act (“NLRA”) because the California courts have approved the challenged restrictions. The federal courts may not ignore state case law balancing the freedom of expression under the state constitution against state property laws; particularly where there is no federal right to engage in the particular expressive activity on private property.

In labor relations, “[t]he ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.” NLRB v. Truck Drivers Local Union No. 449, 353 U.S. 87, 96 , 77 S.Ct. 643 , 1 L.Ed.2d 676 (1957) (emphasis added). We accord considerable…