Professor Steven J. Eagle on Fashion Valley Mall, LLC v. National Labor Relations Board
Professor Steven Eagle comment on the California Supreme Court decision in Fashion Valley Mall, LLC v. National Labor Relations Board, 42 Cal. 4th 850, a case that illustrates the clash between private property rights and free expression. The Court ruled that labor unions have the right to distribute leaflets in front of stores located within shopping malls, urging the public to boycott those businesses. Professor Eagle writes:
The Fashion Valley Mall (Mall) permitted expressive activity if a permit were obtained in advance. However, permittees had to agree not to interfere with the business of any of the stores or to encourage customers not to purchase their goods or services. Members of a labor union representing employees of the San Diego Union-Tribune had been ordered to leave the Mall because they were distributing leaflets to customers asking them to boycott a store that advertised in the Union-Tribune, with which the union had a dispute.
The union asserted that the ejection was an unfair labor practice. The NLRB ordered the Mall to cease and desist from prohibiting access. Equitable Life Assur. Soc’y of the , 343 NLRB No. 57 (Oct. 29, 2004). Its ruling was appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which noted that an employer may exclude a nonemployee union representative from its property if and only if it has that right under state law. It noted that “no California court has squarely decided whether a shopping center may lawfully ban from its premises speech urging the public to boycott a tenant,” and certified that question to the California Supreme Court. Fashion ValleyMall, LLC. v. NLRB (D.C. Cir. 2006) 451 F.3d 241, 246.
As to whether the Fashion Valley Mall decision applies to smaller stores, Professor Eagle explains that “[t]here are some recent California Court of Appeal cases suggesting that the state supreme court’s PruneYard doctrine is not applicable to smaller stores.”