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Why Your Protest at the Capitola Mall is A-OK

While the Capitola Mall is still restricting protest unlawfully, the National Labor Relations Board ruled in August against Capitola Malls' content-based policies, and limited time, place, and manner restrictions.
NLRB Strikes Malls' Content-Based Policies,
Limits Time, Place, and Manner Restrictions

A unanimous panel of the National Labor Relations Board ruled Aug. 27 that two shopping malls in northern California violated federal labor law by enforcing policies that restricted the content of picket signs, handbills, and other written materials, but the board also ruled 2-1 that other mall policies related to organizing activities were reasonable restrictions on the time, place, and manner of the activities (Macerich Mgmt. Co., 345 N.L.R.B. No. 34, 8/27/05 [released 9/2/05]).

With this ruling, the board ordered the malls to cease and desist from maintaining and enforcing the illegal policies, to rescind the policies, and to post notices informing employees that the policies were rescinded.

Policies Limit Expressive Activities

Macerich Management Co. operates the Arden Fair Mall in Sacramento, Calif., and Macerich Property Management Co. operates the Capitola Mall in Capitola, Calif. The management companies share common policies regulating organizing activities and requiring an application to engage in organizing activities at either mall.

On Dec. 16, 1999, two picketers from Carpenters and Joiners of America Local 586 handbilled at the entrances to the Sears store at the Arden Fair Mall to protest the use of a nonunion contractor to build another store in Roseville, Calif. The picketers left when the police threatened them with arrest. On the advice of a mall employee that an application to picket was unnecessary, the union failed to submit an application with the mall. Even after a union representative filed the paperwork, the management company denied the application as untimely, incomplete, and ambiguous.

On March 7, 2000, two picketers from Carpenters Local 505 handbilled and picketed inside the Capitola Mall to likewise protest the use of a nonunion contractor. On March 21, four union representatives again picketed. They were arrested for refusing to leave. On May 3, four more picketers were arrested while protesting. The union had failed to submit an application with the mall on each of these occassions.

The unions filed charges of unfair labor practices, and an administrative law judge ruled in their favor, finding the mall policies were content-based in violation of the National Labor Relations Act. Under the NLRA, employers may not restrict the content of lawful picket signs or handbilling.

Board Bans Content-Based Restrictions

Chairman Robert J. Battista and Members Peter C. Schaumber and Wilma B. Liebman agreed with the ALJ that Macerich Management Co. and Macerich Property Management Co. unlawfully enforced content-based policies, in violation of Section 8(a)(1) of the NLRA, by prohibiting a union that was protesting the companies' use of nonunion contractors from identifying the mall owner, manager, or tenant in handbills; distributing written materials that interfered with the "commercial purpose" of the malls; and requiring pre-approval of written materials.

The board further ruled that banning signs and written materials that interfere with the "commercial purpose" of the malls violated the NLRA because it was overly broad and prohibited protected activity. "The purpose of this rule was to place restrictions on the content of the message so as to limit any negative publicity and not hurt sales," the board said.

Finally, the board ruled that the application process requiring pre-approval of written materials violated the NLRA because the malls' management admitted the rule was used "to screen written materials for compliance with the other rules."

Time, Place, Manner Restrictions OK

Reversing the ALJ, however, Chairman Battista and Member Schaumber ruled that the malls' policies restricting the carrying or wearing of signs, limiting organizing activities to a "designated area," and banning all expressive activity during peak traffic times were reasonable restrictions under California law.

"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," the majority said, quoting Robins v. Pruneyard Shopping Ctr., 592 P.2d 341 (Cal. 1979), and reversing the ALJ's findings on three of the malls' policies,

The company's policy banning the carrying or wearing of signs, the majority said, did not violate the NLRA because "it bans a particular manner in which a message is conveyed," and because the malls had a legitimate concern for their shoppers' safety. Further, a shopping center owner has "freedom from disruption of normal business operations and freedom from interference with customer convenience," the majority said, quoting Savage v. Trammell Crow Co., 273 Cal. Rptr. 302 (1990).

"Because the restriction is designed to ensure public safety and to prevent disruption with the malls' normal business operations, the restriction is in accord with California law, and thus not violative of Section 8(a)(1)," the majority said.

Dissent: Time, Place, Manner Restrictions Overly Broad

Liebman dissented, arguing that the restrictions on the carrying or wearing of signs, picketing in designated areas, and engaging in union activities during peak traffic times were unreasonable because they were not narrowly tailored to the employer's legitimate business interests.

The malls' ban on signs was "a blanket prohibition" on the protected right to picket, Leibman said, finding the malls easily could have tailored the restriction to limit the size of signs or to ban the sticks used to carry the signs.

Banning all expressive activity from the sidewalk was overly broad and contrary to state law, Liebman said.

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Re: Why Your Protest at the Capitola Mall is A-OK

Treating the area in between stores as private rather than public space is a disturbing trend to me. Is anyone doing work to combat this growing menace?


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