Thursday, December 27, 2007
Keeping up our theme of employer property rights versus union solicitation, the California Supreme Court just weighed in on an issue that has been vexing the NLRB and, particularly, the D.C. Circuit for several years. Under the Board's interpretation of the Supreme Court's Lechmere doctrine, an employer's ability to exclude nonemployee solicitations relies almost exclusively on state law; that is, an employer has a right to exclude union organizers if state property law gives them the right to exclude solicitors from the property in question. I've argued against this framework, but not surprisingly, no one listens to me. This issue has had a lot of play in California because of a long-standing rule equating shopping malls and other areas with a similar level of openness as constitutional public forums--meaning that these are areas in which individuals enjoy constitutional free speech protection against private property owners' attempt to limit speech. The upshot of this rule in the labor context is that, to the extent that this rule was still valid, California does not give employers free reign to exclude speech and unions, therefore, have a much broader right to solicit on employers' property.
The problem is that this rule (Pruneyard) was cast into doubt because of an intervening U.S. Supreme Court case and some lower California court decisions. In the decision at issue here (boy, that took a while), the D.C. Circuit noted the uncertainty and certified the question to the California Supreme Court. Incidentally, this is the second time the D.C. Circuit has certified the same question to the same court--both cases argued by former NLRB attorney and current Professor Anne Marie Lofaso (WVU). The first time the California court refused to answer, but this time they have. In Fashion Valley Mall v. NLRB, the California Supreme Court (4-3) reaffirmed its earlier Pruneyard rule. As described by BNA's Daily Labor Report (subscription required):
[The Court, in an opinion written by Justice Moreno,] said that the state constitution provides that any person may "speak, write and publish his or her sentiments on all subjects," and that "[a] law may not restrain or abridge liberty of speech or press." In Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (Cal. 1979), Moreno said, California's high court held that the state constitution provided broader protection for free expression than the First Amendment to the U.S. Constitution and that the state constitution protected speech and petitioning in shopping centers even when they were privately owned. . . .
Courts have noted that reasonable limitations on the time, manner, and place of speech may not be unconstitutional, but Moreno said that "[p]rohibiting speech that advocates a boycott is not a time, place, or manner restriction because it is not content neutral."
Fashion Valley argued that its anti-boycott rule was "content-neutral," because it applied to all boycotts, without discrimination. But the court said the argument was "mistaken." "The Mall's rule prohibiting all boycotts may be viewpoint neutral, because it treats all requests for a boycott the same way, but it is not content neutral, because it prohibits speech that urges a boycott while permitting speech that does not," Moreno wrote. Stating that "[t]he Mall seeks to prohibit speech advocating a boycott solely because it disagrees with the message of such speech, which might persuade some potential customers not to patronize the stores in the Mall," the California court said that "[u]rging customers to boycott a store lies at the core of the right to free speech."
Fashion Valley failed to show a compelling interest in prohibiting the union members' exercise of "this traditional form of free speech," the court said."A shopping mall is a public forum in which persons may reasonably exercise their right to free speech guaranteed by article I, section 2 of the California Constitution," Moreno wrote. "Shopping malls may enact and enforce 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 upon its content, such as prohibiting speech that urges a boycott of one or more of the stores in the mall," he added.
Answering the D.C. Circuit's certified question, the California high court said that Fashion Valley could not maintain and enforce its anti-boycott rule against the GCIU local and its members.
This decision is diametrically opposed to the Board's recent email case and perhaps more controversial. It may come as a surprise to those who flamed me for my criticism of the email case, but I have mixed feelings on this issue. I'm a bit reticent about relying on constitutional free speech protections and think a better approach would be a more direct balance between the property and labor rights at issue. I'll admit, however, that it's nice to see the unions get a rare win. I wouldn't count on it lasting forever though. A different court or possibly a federal constitutional challenge could change things.