Equitable Life Assurance Society of the U.S.

National Labor Relations Board - Board Decisions

Oct 29, 2004

343 N.L.R.B. 438 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 57
438
Equitable Life Assurance Society of the United States
and ITC Fashion Valley Corporation d/b/a
Fashion Valley Shopping Center and Graphic
Communications International Union, Local
432M, AFL–CIO. Case 21–CA–33004
October 29, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On September 26, 2001, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief and the Re-
spondent filed a reply brief. The General Counsel filed
cross-exceptions and a supporting brief, and the Respon-
dent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.2
Introduction
The complaint alleges, in pertinent part, that the Re-
spondent violated Section 8(a)(1) by: (1) maintaining a
rule prohibiting consumer boycott handbilling, rule 5.6.2;
and (2) enforcing this rule and unlawfully excluding un-
ion handbillers at the entrances to the Robinsons-May
department store at the Fashion Valley Shopping Center
on October 4, 1998. The judge found that the exclusion
of the handbillers violated Section 8(a)(1). For the rea-
sons that follow, we agree with this finding.
The judge declined to rule on the separate complaint
allegation that the maintenance of the rule prohibiting
consumer boycott handbilling also was unlawful. The
General Counsel has excepted to the judge’s failure to

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There are no exceptions to the judge’s finding that under California
law time, place, and manner rules can be applied to labor activity con-
ducted at private shopping malls or large stand-alone shopping facilities
in California; and that among the time, place, and manner rules allowed
under California law are rules requiring the disclosure of the names of
the persons who seek to engage in expressive activity.
2 We have modified the Order and notice to more accurately reflect
the violations found.
find this additional violation of Section 8(a)(1). For the
reasons that follow, we find merit to this exception.
Facts
The judge has fully set out the facts. In brief, the Re-
spondent owns and operates a retail shopping mall in San
Diego, California, known as the Fashion Valley Shop-
ping Center (the Mall). The Respondent leases space at
the Mall to tenants who are engaged in retail sales to the
public. The Robinsons-May department store is one of
the larger tenants at the Mall and occupies space in a
freestanding building at the east end of the Mall. The
store is surrounded on three sides by parking areas and
on the west side by a separate building housing a Saks
Fifth Avenue store and another building housing a num-
ber of small retailers. The Respondent retains Jones,
Lang, LaSalle Americas, Inc. (La Salle) to manage and
operate the Mall on its behalf.
The Respondent has adopted rules and regulations ap-
plicable to all individuals and organizations seeking to
engage in expressive activities at the Mall. The Respon-
dent’s rule 5.6.2 expressly prohibits applicants and par-
ticipants from “impeding, competing, or interfering with
the business of one or more of the stores or merchants in
the shopping center by . . . urging, or encouraging in any
manner, customers not to purchase the merchandise or
services offered by one or more of the stores or mer-
chants in the shopping center.” The Respondent’s rules
and Regulations also include an application-permit proc-
ess for all individuals and organizations seeking to en-
gage in expressive activities at the Mall, which, among
other things, requires each applicant to agree to abide by
all of the Mall’s rules and regulations, including rule
5.6.2. Since the rules were established, the Respondent
has required all individuals and organizations that seek to
engage in expressive activity to apply for and receive a
permit prior to engaging in the activity.
On October 4, 1998,3 union members and supporters
distributed handbills4 on the sidewalk outside the en-
trances to the Robinsons-May department store to per-
sons entering and leaving the store, and to other persons
on their way to other Mall stores or parking areas.
Shortly after the handbilling began, officials from La
Salle stopped the handbilling, and told the handbillers

3 All dates hereinafter refer to 1998 unless otherwise indicated.
4 The Union was involved in a primary labor dispute with the San
Diego Union-Tribune newspaper. The handbill highlighted particular
aspects of the Union’s dispute with the Union-Tribune newspaper,
urged Robinsons-May Department Store employees to remain on the
job, asked consumers to call the Union-Tribune CEO on behalf of the
Union, and concluded: “Robinsons-May advertises with the Union-
Tribune.”
EQUITABLE LIFE ASSURANCE SOCIETY OF THE U.S. 439
that they were on private property and should have sub-
mitted an application for a permit to engage in expressive
activity at the Mall. The handbillers were handed the
Respondent’s standard trespass notice, offered an expres-
sive activity application, and warned that they would be
subject to civil litigation and/or arrest if they did not
leave. The handbillers promptly ceased their activity,
left the Mall’s premises, and relocated to public property
where they continued to handbill for an additional 15
minutes. On October 22, by letter directed to the Un-
ion’s counsel, counsel for the Mall sought to compel the
Union to complete the Mall’s application as a prerequi-
site to engaging in expressive activity at the Mall.
Analysis
The pertinent principles are set forth in Glendale Asso-
ciates, 335 NLRB 27, 28 (2001), enfd. 347 F.3d 1145
(9th Cir. 2003):
In Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992),
the Supreme Court held that an employer may law-
fully bar nonemployee union organizers from private
property (unless the employees are inaccessible
through usual channels). In the absence of a private
property interest, however, the Court’s holding in
Lechmere is not controlling. See Bristol Farms, 311
NLRB 437, 438 fn. 6 (1993) (“employer’s exclusion
of union representatives from private property to
which the employer lacks a property right entitling it
to exclude individuals likewise violated Section
8(a)(1) assuming the union representatives are en-
gaged in Section 7 activities”). See also Indio Gro-
cery Outlet, 323 NLRB 1138, 1142 (1997), enfd. sub
nom. NLRB v. Calkins, 187 F.3d 1080 (9th Cir.
1999).
The Board looks to State law to ascertain
whether an employer has a property right sufficient
to deny access to nonemployee union representa-
tives. Bristol Farms, 311 NLRB at 438. The Board
does so because it is State law, not the Act, that cre-
ates and defines the employer’s property interest.
Thus, an employer cannot exclude individuals exer-
cising Section 7 rights if the State law would not al-
low the employer to exclude the individuals. Id. at
438; Johnson & Hardin Co., 305 NLRB 690 (1991).
California law permits the exercise of speech and peti-
tioning in private shopping centers, subject to reasonable
time, place, and manner rules adopted by the property
owner. Robins v. Pruneyard Shopping Center, 23 Cal.
3d 899 (1979), affd. 447 U.S. 74 (1980); Glendale, su-
pra, 335 NLRB at 28. Rule 5.6.2, however, is essentially
a content-based restriction and not a time, place, and
manner restriction permitted under California law. That
is, the rule prohibits speech “urging or encouraging in
any manner” customers to boycott one of the shopping
center stores. By contrast, there is no evidence in the
record explaining how rule 5.6.2 regulates the time,
place, or manner of speech at the Mall. Rather, it ap-
pears that the purpose and effect of this rule was to shield
the Respondent’s tenants, such as the Robinsons-May
department store, from otherwise lawful consumer boy-
cott handbilling. Accordingly, we find that the Respon-
dent violated Section 8(a)(1) by maintaining rule 5.6.2.5
See Glendale, supra.
We find, for similar reasons, that the Respondent also
violated Section 8(a)(1) by excluding the handbillers on
October 4. The Respondent contends that it was entitled
to exclude the handbillers because they did not apply for
a permit to engage in handbilling, as its rules require. As
noted above, though, the Respondent’s application-
permit process requires each applicant to agree to abide
by all its rules and regulations, including rule 5.6.2,
which we have already found to be unlawful. Thus, in-
asmuch as the application process requires adherence to
an unlawful rule, the Respondent may not enforce it.
Accordingly, we find that the Respondent violated Sec-
tion 8(a)(1) by enforcing rule 5.6.2, i.e., by requiring the
instant application for a permit.
AMENDED CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce or
an industry affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act by maintaining
and enforcing a rule prohibiting handbilling or other ex-
pressive activity which urges, or encourages in any man-
ner, customers not to purchase the merchandise or ser-

5 In light of our finding above, we find it unnecessary to rely on the
judge’s finding that rule 5.6.2 was impermissible under the California
law set forth in Sears, Roebuck & Co. v. San Diego County Dist. Coun-
sel of Carpenters, 25 Cal. 3d 317 (1979), In re Lane, 71 Cal. 2d 872
(1969), and Schwartz-Torrance Investment Corp. v. Bakery & Confec-
tionary Workers’ Union, 61 Cal. 2d 766 (1964), and we do not pass on
the judge’s discussion of those cases. Accordingly, there is no need for
us to address the D.C. Circuit’s recent decision in Waremart Foods v.
NLRB, 354 F.3d 870 (D.C. Cir. 2004), questioning whether Sears,
Lane, and Schwartz-Torrance remain good law.
We find it unnecessary to pass on the judge’s finding that the Re-
spondent unlawfully maintained a rule limiting expressive activities to
six “pre-approved” locations in the common areas of the mall. We rely
on the following reason. There was no allegation in the complaint
challenging this rule and the General Counsel’s cross-exceptions make
it clear that the General Counsel does not contend that the Respondent
violated the Act by maintaining such a rule. In these circumstances, the
question of whether such a rule would be unlawful is not before us.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD440
vices offered by any one or more of the stores or mer-
chants in the Fashion Valley Shopping Center.
4. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not violated Section 8(a)(1) of
the Act in any other manner except as specifically found
herein.
ORDER
The National Labor Relations Board orders that the
Respondent, Equitable Life Assurance Society of the
United States and ITC Fashion Valley Corporation d/b/a
Fashion Valley Shopping Center, San Diego, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing a rule prohibiting hand-
billing or other expressive activity protected by Section 7
of the National Labor Relations Act which urges, or en-
courages in any manner, customers not to purchase the
merchandise or services offered by any one or more of
the stores or merchants in the Fashion Valley Shopping
Center.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Delete from its rules and regulations, and any other
document within its custody and control where such rules
may be contained, any rule which prohibits handbilling
or other expressive activity protected by Section 7 of the
National Labor Relations Act which urges, or encourages
in any manner, customers not to purchase the merchan-
dise or services offered by any one or more of the stores
or merchants in the Fashion Valley Shopping Center.
(b) Within 14 days after service by the Region, post at
the facilities it maintains in connection with the operation
of the Fashion Valley Shopping Center in San Diego,
California, copies of the attached notice marked “Appen-
dix.”6 Copies of the notice, on forms provided by the
Regional Director for Region 21, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
any other material. In the event that, during the pend-
ency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
at any time since October 4, 1998.
(c) Within 14 days after service by the Region, sign
and return to the Regional Director sufficient copies of
the notice for posting by the Union at its facility, if will-
ing, at all places where notices to members and employ-
ees are customarily posted.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain or enforce a rule at the Fashion
Valley Shopping Center prohibiting handbilling or other
expressive activities protected by Section 7 of the Na-
tional Labor Relations Act which urges, or encourages in
any manner, customers not to purchase the merchandise
or services offered by any one or more of the stores or
merchants in the Fashion Valley Shopping Center.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL modify our rules and regulations for expres-
sive activities at Fashion Valley Shopping Center, and
any other document within our custody and control
EQUITABLE LIFE ASSURANCE SOCIETY OF THE U.S. 441
where such rules may be contained, to delete any rule
which prohibits handbilling or other expressive activity
protected by Section 7 of the National Labor Relations
Act which urges, or encourages in any manner, custom-
ers not to purchase the merchandise or services offered
by any one or more of the stores or merchants in the
Fashion Valley Shopping Center.
EQUITABLE LIFE ASSURANCE SOCIETY OF THE
UNITED STATES AND ITC FASHION VALLEY
CORPORATION D/B/A FASHION VALLEY
SHOPPING CENTER
Robert MacKay and David Mori, Attys., for the General Coun-
sel.
Theodore R. Scott, Atty. (Luce, Forward, Hamilton & Scripps,
LLP), of San Diego, California, and W. McLin Lines, Atty.
(Law Office of W. McLin Lines), of Torrance, California, for
the Respondent.
Richard D. Prochazka, Atty. (Richard D. Prochazka & Associ-
ates), of San Diego, California, for the Charging Party’s
brief.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. The out-
come here turns on whether the Equitable Life Assurance Soci-
ety of the United States and ITC Fashion Valley Corporation
d/b/a Fashion Valley Shopping Center (Respondent, Company,
or Equitable Life) met its threshold burden of establishing a
sufficient property interest under California law that entitled it
to bar agents, members, and sympathizers of Graphic Commu-
nications International Union, Local 432M, AFL–CIO (Local
432M, Union, Charging Party) from distributing leaflets to
consumers at the Fashion Valley Shopping Center (Mall) in San
Diego, California, on October 4, 1998. Below, I conclude Re-
spondent failed to meet that burden and that it violated Section
8(a)(1) of the National Labor Relations Act (Act)1 by barring
the Union’s leafleters that day under a threat of arrest.
This proceeding commenced with the unfair labor practice
charge filed by Local 432M on October 15, 1998.2 Thereafter,
the Regional Director for Region 21 issued a complaint and
notice of hearing on September 30, 1999, alleging that Respon-
dent engaged in certain unfair labor practices within the mean-
ing of Section 8(a)(1) by threatening the Union’s leafleters with
arrest for engaging in handbilling on Respondent’s property
without a permit. Respondent filed a timely answer denying the
alleged unfair labor practices.

1 Sec. 8(a)(1) provides that it is an unfair labor practice for an em-
ployer to “interfere with, restrain, or coerce employees” in the exercise
of their rights under Sec. 7 of the Act. The pertinent portion of Sec. 7
guarantees to employees “the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion . . . [or] to refrain from any or all such activities.”
2 All further dates refer to 1998 unless shown otherwise.
I heard this matter on October 10, 2000, at San Diego, Cali-
fornia. On the entire record, including my observation of the
demeanor of the witnesses, and after considering the helpful
briefs filed with me by the General Counsel, the Respondent,
and the Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation, is engaged in the
management and operation of a shopping center in San Diego,
California. During the 1998 calendar year, Respondent derived
gross revenues in excess of $1 million, of which $25,000 was
derived from retail tenants, including Robinsons-May Depart-
ment Stores, each of which tenants, during the same period of
time, derived gross revenues in excess of $500,000 and pur-
chased and received at the Fashion Valley Mall location goods
valued in excess of $50,000 directly from points outside the
State of California. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. I further find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
Respondent leases space at the Mall to tenants engaged in re-
tail sales to the public. During regular business hours, Respon-
dent provides the public at large with access to the Mall for the
purpose of shopping at the retail stores located therein. The
Mall is situated on land bounded on the north by Friars Road, to
the east by Highway 163, to the south by Hazard Center Drive,
and to the west by Fashion Valley Road. Equitable Life retains
Jones, Lang, LaSalle, Americas, Inc. (LaSalle), to manage and
operate the Mall on its behalf. The Robinsons-May Department
Store is one of the larger tenants at the Mall. That retailer occu-
pies space in a freestanding building at the east end of the Mall.
It is surrounded on three sides by parking areas and on the west
side by a separate building housing a Saks Fifth Avenue store
and another building housing a number of smaller retailers. (R.
Exh. 5.)
The Charging Party, Local 432M, represents a unit of the
pressroom employees at the San Diego Union-Tribune (Union-
Tribune), a major general circulation newspaper in San Diego.
The Union’s pressroom collective-bargaining agreement with
the Union-Tribune expired on October 16, 1992. Local 432M
and the Union-Tribune have bargained since that time, and
before, in an unsuccessful effort to reach a new agreement. A
primary labor dispute existed between Local 432M and the
Union-Tribune during August, September, and October of
1998.
2. Respondent’s time-place-manner rules
On December 1, 1995, Respondent adopted rules applicable
to persons seeking to engage in expressive activities at the
Mall. (Jt. Exh. 1.) The preamble to the rules purports to explain
the law concerning the exercise of expressive activity at pri-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD442
vately owned shopping centers such as Fashion Valley. Among
other things the preamble states:
The California appellate courts have recognized that the Cali-
fornia Constitution allows a privately owned shopping center
to prohibit expressive activities which impede, disrupt, or
compete with the owner or merchants’ businesses or which
interfere with customer convenience,4 and have decided that a
privately owned shopping center may so prohibit political, re-
ligious, and any other type of expressive activity protected by
the California Constitution.5
The United States Supreme Court has decided that a
privately owned shopping center can prohibit non-
employees from engaging in union organizing activities on
a shopping center unless the union can demonstrate the
employees it is attempting to organize are beyond the un-
ion’s reasonable efforts to contact them. Since none of the
employees of Fashion Valley, the mall stores, or the de-
partment store live on the shopping center, the law pre-
sumes that the union has reasonable access to these em-
ployees outside the shopping center.6
________________________________________________
4 H-CHH Associates v. Citizens for Representative Govern-
ment (1987) 193 Cal.App.3 superrd 1193.
5 Savage v. Trammell Crow (1990) 223 Cal.App.3 superrd
1562; and Westside Sane/Freeze v. Ernest W. Hahn (1990)
224 Cal.App.3 superrd 546.
6 Lechmere, Inc. v. National Labor Relations Board (1992)
112 S.Ct. 841.
Respondent’s rules provided for an extensive application-
permit process that requires considerable information from the
permit applicant and each person who will participate in the
planned expressive activity. Rule 2.1 provides that an applicant
“must submit a completed application for a permit at least five
(5) business days . . . in advance of the expressive activity, and
must obtain a permit, before engaging in an expressive activity
at Fashion Valley.” The 10-page permit application seeks these
disclosures:
1. The name and address of “the person or group requesting a
permit to engage in expressive activity at the Mall.
2. The name, and the day and evening phone numbers for “the
person in charge of, or responsible for” the applicant’s con-
duct.
3. Other public or private locations where the applicant en-
gaged in expressive activity in the past 12 months.
4. Injuries sustained by persons or property “while . . . en-
gaged in a similar expressive activity” elsewhere.
5. The name and address of the applicant’s liability insurer as
well as the policy number and liability limits.
6. Any economic consideration the applicant or participants
would receive from the activity.
7. The manner in which the applicant plans to educate the
“participants” concerning the activity permitted by the rules.
8. The purpose of the expressive activity and the times the ap-
plicant wants to engage in expressive activity.
9. The location desired for the activity, including an explana-
tion as to why the “preapproved” locations would not be ac-
ceptable.
10. The number of participants anticipated and what the par-
ticipants will be doing during the activity.
11. How far the participants will range from the approved lo-
cation where the activity will take place.
12. The “general content of the [planned] verbal communica-
tions [with the patrons] . . . including songs.”
13. Whether the participants would be soliciting funds.
14. Whether the participants would be promoting or discour-
aging the sale of merchandise carried by any Mall business.
15. The applicant’s agreement or representation that he/she
would abide by all of the Mall’s rules and regulations.
16. The applicant’s agreement that the participants had been
educated about the Mall’s rules.
The applicant must also submit a copy of any written mate-
rial that would be “displayed, distributed or otherwise used.” If
a copy of the written material to be used cannot be attached to a
separate “Written Material Attachment,” then the applicant
must complete a form that describes the number, size, and con-
tent of the written materials and the manner in which the appli-
cant plans to display or distribute the written material. Its rules
bar, among other materials, “fighting words, obscenities, grisly
or gruesome displays, and highly inflammatory slogans.” See
Joint Exhibit 1, Exhibit 2, rule 5.11.2. When the disputed activ-
ity occurred, the rules prohibited applicants and participants
from:
Impeding, competing or interfering with the business of one
or more of the stores or merchants in the shopping center by
. . . urging, or encouraging in any manner, customers not to
purchase the merchandise or services offered by any one or
more of the stores or merchants in the shopping center.
See Joint Exhibit 1, Exhibit 2, rule 5.6.2. On September 1,
1999, around the time the complaint in this case issued, Re-
spondent amended its rules. The amendments provide that rule
5.6.2 “has been deleted subject to appropriate revision and re-
statement.”
The applicant must also submit a 5-page “Participant At-
tachment” for each participant. The participant attachment calls
for the name, address, workday telephone number of the “par-
ticipant,” and the “relationship” of the participant to the appli-
cant. As in the case of the applicant, the participant must also
disclose the date, location, sponsor, and purpose of any “similar
expressive activity within the last 12 months.” Similarly, the
participant must provide information about “previous in-
jury(ies) to persons or property” while engaged in similar ex-
pressive activity. If the participant declares that injury occurred
then he/she must declare the location and the injury that oc-
curred. Each participant is also required to disclose the same
insurance information as is required of the applicant as well as
the same information concerning consideration the participant
would receive for engaging in the planned expressive activity
and whether the participant plans to promote the sale or boycott
of any product.
The application forms contemplate prior approval or disap-
proval by the Mall of the applicant, each participant and the
written materials before any expressive activity commences.
The forms also suggest that the Mall might demand the submis-
sion of a “certificate of insurance” if the activity involves a
EQUITABLE LIFE ASSURANCE SOCIETY OF THE U.S. 443
“risk” warranting insurance. In that event, the language on the
Mall’s permit indicates that it might require insurance up to $1
million per occurrence covering the applicant, each participant
and others specified by the Mall including “[a]ny and all person
or entities, as well as their respective agents and employees,
holding any ownership, security, or leasehold interest in, or
managing the common areas of, Fashion Valley.”
Permits to engage in expressive activity are issued for peri-
ods limited to “either: a single day, or any portion of a day;
three consecutive days for a weekend preceded or followed by
a legal holiday; or five consecutive days for a Monday through
Friday.” Under the amendments adopted in 1999, permits can
be renewed but no applicant can have more than one applica-
tion or permit pending at any given time.
The Mall only allows expressive activities in the common
areas. Respondent has six predesignated locations for that pur-
pose. The Robinsons-May store appears to have one or more
entrances on all sides of the building it occupies. The nearest
designated expressive activity area is located across a walkway
from the store’s west entrance. No designated expressive activ-
ity areas exist on the other three sides of the store that are adja-
cent to parking areas and that have public entrances. The Mall
prohibits expressive activities on property “leased to, or owned
by, the mall stores or the department stores, or on property not
open to the general public.” No evidence explains the geo-
graphic scope of Robinsons-May’s lease, e.g., whether it in-
cludes the surrounding walkways or any portion thereof.
3. The Union’s October 4 leafleting
Local 432M began planning to leaflet consumers at the Rob-
insons-May store in the Mall sometime between the end of
August and the mid-September. Its president, John Finneran,
with assistance from members of the Union’s executive board,
prepared the leaflets. Agents from Local 404, a sister local in
Los Angeles, also provided assistance. On October 3, Finneran
spoke by telephone with the Mall’s security shift supervisor to
advise that about 30 union supporters would engage in a peace-
ful protest outside the Robinsons-May store the following day
around 1 p.m.3 Local 432M made no effort to obtain a permit
under the Mall’s rules to engage in expressive activities.4
Around 1 p.m. on October 4, Finneran and Marty Keegan,
director of organizing for Local 404, a sister local in Los Ange-
les, along with 30 to 40 union members and a few of their fam-
ily members went to the Mall to distribute leaflets to the Mall
patrons, particularly those entering and leaving the Mall’s Rob-
insons-May store.5 The leaflets highlight particular aspects of

3 Finneran vehemently denied that he provided advance notice to the
Mall of the October 4 activity. Because the contemporaneous entry in
the Mall’s security log shows otherwise and supports the contrary tes-
timony of the security officer on duty, I do not credit Finneran’s denial.
(See R. Exh. 7.) The same log sheet indicates a call from a police offi-
cer who reported that Finneran had reported plans to demonstrate at the
Mall. Finneran admitted that he spoke to the San Diego Police about
the Union’s plans to leaflet at the Mall.
4 The Union explicitly refused to submit an application later when
Respondent invited it to do so. However, the Union never attempted to
engage in handbilling at the Mall after October 4.
5 Earlier that day, this group also distributed leaflets at a nearby auto
dealership.
the Union’s dispute with the Union-Tribune, urge Robinsons-
May employees to remain on the job, ask consumers to call the
Union-Tribune C.E.O. on behalf of the Union, and conclude:
“Robinsons-May advertises with the Union-Tribune.” (GC Exh.
3.)
Finneran and Keegan supervised the leafleting. The hand-
billers broke into groups of three to five people, and stood on
wide sidewalks near the various entrances to the Robinsons-
May store. They distributed leaflets to persons entering and
leaving Robinsons-May, and to other passersby on their way to
other Mall stores or the parking areas. Some of the leafleters
engaged some willing Mall patrons in discussions about the
Union’s concerns, including the claim that the Union-Tribune
had not granted a pay increase in nearly 7 years. From all indi-
cations, the leafleters conducted their activity in a courteous
and peaceful manner without a disruption of any kind and
without hindrance to customers entering or leaving Robinsons-
May or any other Mall store. No picketing occurred. No leaf-
leter entered the targeted store.
Finneran articulated three reasons for leafleting at the Mall’s
Robinsons-May store. First, that company frequently placed
large advertisements in the Union-Tribune; second, that par-
ticular Robinsons-May store, located only about half of a mile
from the Union-Tribune’s facility, provided a convenient loca-
tion for many of the handbillers to congregate; and third, the
Mall has “a lot of people coming in and out of it,” so the Un-
ion’s access to the public would be maximized at that location.
Although Finneran eschewed any intent to encourage a con-
sumer boycott of Robinsons-May, the Union’s brief boldly
asserts otherwise. It states that the Union “was attempting to
engage in a lawful consumer boycott of Robinsons-May be-
cause Robinsons-May advertised in the Union-Tribune news-
paper.” (CP Br., p. 2.) I find that admission consistent with the
circumstances here.
But even in the absence of the admission in the Union’s
brief, I would find that this record merits the inference, despite
Finneran’s contrary claim, that the Union’s October 4 leafleting
had, as its primary object, a consumer boycott of the Mall’s
Robinsons-May store. Such an inference is strongly supported
by the distribution of handbills that: (1) portray an unflattering
account of the protracted negotiations at the Union-Tribune; (2)
appeal to the readers to complain about the negotiations to the
newspaper’s chief executive officer; and (3) advise Mall pa-
trons that the Robinsons-May store they were about to enter,
leave or pass by, advertises in the Union-Tribune. Hence, per-
sons usually sympathetic to union causes would also likely
avoid the Robinsons-May store when confronted with this in-
formation.
Within 15 or 20 minutes, the Respondent’s management
company officials arrived on the scene to stop the leafleting.
Eugene Kemp, Fashion Valley’s property manager, told
Keegan that the handbillers were on private property and that
he should have submitted an application for a permit. Kemp
warned Keegan that the leafleters would be subject to civil
litigation and/or arrest if they did not leave, handed him Re-
spondent’s standard trespassing notice (R. Exh. 3), and offered
him an expressive activity application. In pertinent part, the
trespass notice reads:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD444
Since you have not obtained a permit to engage in an expres-
sive activity, Fashion Valley insists that you immediately re-
frain from engaging in any expressive activity at Fashion Val-
ley. . . . If you continue to engage in an expressive activity
without a permit, or if you impede traffic entering or leaving
Fashion Valley, you will be subject to arrest and criminal
prosecution, as well as a civil legal action to enjoin future
trespasses and to recover compensatory and punitive damages
resulting from your trespass(es).
Keegan promptly began directing the union members to cease
leafleting and to leave the Mall’s premises. They complied but,
instead of ceasing their activity altogether, most relocated to
public property near the Friars Road entrance to the Mall where
they continued to leaflet for another 15 or 20 minutes. Before
leaving Mall property, Finneran engaged a policeman who
appeared on the scene in a brief argument. No arrests occurred.
No citation issued. No subsequent criminal or civil action en-
sued. And finally, no evidence shows that Kemp made any
objection about the number of leafleters.
B. Argument
The General Counsel argues that Respondent lacked a suffi-
cient property interest under California law to exclude the Un-
ion’s leafleters despite its failure to follow the application-
permit scheme established by the Mall’s time-place-manner
rules. The General Counsel argues that the state’s labor law
applies here and that the California Supreme Court has never
applied time-place-manner regulations to peaceful concerted
activities conducted on private property.
Alternatively, General Counsel argues that if the Board rec-
ognizes the legitimacy of time-place-manner rules in California
labor cases, Respondent should be “foreclosed from applying
certain . . . rules because they are not reasonable.” Specifically,
General Counsel claims that rule 5.6.2 effectively bars con-
sumer boycott activity and amounts to an invalid content-based
regulation. Citing Riesbeck Food Markets, 315 NLRB 940
(1994), enf. denied 91 F.3d 132 (4th Cir. 1996), the General
Counsel contends that rule 5.6.2 constitutes a “facially dis-
criminatory no-solicitation policy.”
In addition, the General Counsel asserts that the requirement
that the union disclose the names of its handbillers (partici-
pants) serves no significant interest of Respondent and, hence,
it should be found to be invalid. In this regard, the General
Counsel believes that this requirement raises the risk for retalia-
tion if the handbiller’s identity is disclosed to the Mall and then
passed along to the handbiller’s employer. This risk, the Gen-
eral Counsel argues, will serve to chill the exercise of Section 7
rights especially where, as here, no assurance of confidentiality
is provided. In General Counsel’s view, anonymity is a “fun-
damental right recognized in law” that the Board has “vigilantly
preserved by maintaining the secrecy of employees’ ballots in
[[NLRB] elections” and by deliberately omitting employee
names in certain complaint allegations.
To the extent that contrary conclusions could be reached
from arguments grounded on Union of Needle Trades, Indus. &
Textile Employees v. Superior Court (Taubman Co.), 56
Cal.App.4th 996 (1997) (UNITE), the General Counsel ad-
vances numerous criticisms of that case and the arguments
derived from it. Where I find General Counsel’s criticisms
relevant, they will be addressed in greater detail below.
Respondent asserts that it is not only “unnecessary to distin-
guish between labor-related speech and non-labor related
speech, but that in fact shopping centers are required to treat
both types of speech in the identical fashion.” Respondent
maintains that California law permits the type of time-place-
manner rules it maintains and, therefore, the Union had no right
to leaflet on Mall property without first obtaining a permit un-
der the Mall’s application-permit process.
Respondent claims that its derived its time-place-manner
regulations from the guidance provided by the California court
of appeals in H-CHH Associates v. Citizens for Representative
Government, 193 Cal.App.3d 1193 (1987) (Pasadena Plaza).
Furthermore, Respondent contends that reviewers saw no rea-
son to revise its rules following the UNITE decision. Pasadena
Plaza, Respondent asserts, provides “a considerable amount of
detail relating to permissible regulation of . . . expressive activi-
ties [to assure that they] would not interfere with normal busi-
ness operations.” And Respondent contends that the UNITE
decision affirmed “the validity of the shopping center’s rules”
and confirmed that a labor organization must comply with a
shopping center’s existing application-permit process before
engaging in expressive activities.
Respondent argues that the “Zerbe to Sears” line of union
activity cases “has no bearing on the applicability of Fashion
Valley’s Rules to access to engage in labor-related speech.”
These cases, Respondent asserts, arose in the context of situa-
tions where (1) the property owner claimed the right to “abso-
lutely ban” access based solely on the owner’s private property
rights; and (2) there was a “unique need to use the particular
private property as a forum because it [was] located adjacent to
the targeted employer or subject jobsite. Neither element, Re-
spondent argues, is present in this case. Instead, Respondent
claims that it merely asserted its “constitutionally permissible
. . . right to regulate” by asking the Union to “stop using the
shopping center as a public forum” without complying with its
rules. Consequently, Respondent asserts, when California law
protects labor expressive activities from an absolute ban by the
owner of private property, that activity nonetheless may be
regulated in the same manner as constitutionally protected
speech and petitioning activity.
Finally, Respondent contends that the specific provisions of
the Mall’s rules challenged by the General Counsel are permis-
sible under Pasadena Plaza and UNITE. Those cases. Respon-
dent contends, both approved rules requiring the prior identifi-
cation of participants. Furthermore, Respondent, notwithstand-
ing the 1999 amendment deleting the boycott ban contained in
rule 5.6.2, contends that by upholding a rule banning the solici-
tation of funds, Plaza Pasadena supports its ban on boycotts.
Thus Respondent’s brief states at 32–33:
If the shopping center can prevent a single person from asking
for a single dollar which, if given to the solicitor, might have
been used to purchase goods or services somewhere in the
shopping center, then a shopping center can certainly prevent
one or more persons from asking customers not to purchase
EQUITABLE LIFE ASSURANCE SOCIETY OF THE U.S. 445
any goods of (sic) services from a specific store in the shop-
ping center. The potential adverse impact on the promotion of
any single business in the shopping center due to the request
for a single dollar which may never have been spent in that or
any other store in the shopping center is far less than the po-
tential impact on a targeted store of a request not to purchase
anything from that store.
Respondent disputes General Counsel’s claim about the in-
applicability of time-place-manner rules to labor activity at
shopping malls. In support, Respondent cites this language
from Diamond v. Bland, 3 Cal.3d 653 (1970) (Diamond I):
Each of the cases upon which we rely-Marsh, Logan,
Schwartz-Torrance, Lane, and Hoffman-presumed that the
property owners involved were free to impose “reasonable
regulations” upon the exercise of First Amendment rights on
their premises; and each of the cases emphasized that disrup-
tive First Amendment activities may be prohibited by the
owners of private property opened to the public.
. . . .
We impose no unrealistic burden on the operators of
shopping centers in insisting that their control over First
Amendment rights be exercised, if at all, through reason-
able regulations calculated to protect their business inter-
ests rather than through absolute bans on all nonbusiness-
related activities. Shopping centers, like railway stations,
are not incapable of regulating permissible activities. If
regulations could not be designed, the decisions in
Schwartz-Torrance and Logan might have produced
chaos, as labor unions and other groups would have been
free to picket businesses in the shopping centers without
reasonable limitation as to time, place, or manner. More-
over, the trial court findings in the instant action demon-
strate the ability of Inland Center to regulate the various
sales promotions and displays that are permitted in the
common aisleways: “In every instance where a promotion
is held, it is closely regulated as to time, date, location,
number of people or exhibits involved, manner of presen-
tation and security factors.” Similar regulations, if not re-
pressive in scope, can be devised to protect Inland Center
from actual or potential danger of First Amendment activi-
ties being conducted on its premises in a manner calcu-
lated to disrupt normal business operations and to interfere
with the convenience of customers. 3 Cal.3d at 665.
C. Further Findings and Conclusions
In Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), the U.S.
Supreme Court rejected the balancing test formulated by the
Board in Jean Country, 291 NLRB 11 (1988), to determine a
nonemployee union organizer’s right of access to an em-
ployer’s private property for the purpose of engaging in Section
7 activities. In doing so, the Court reaffirmed the general rule
originally adopted in NLRB v. Babcock & Wilcox Co., 351 U.S.
105 (1956). Babcock & Wilcox held that an employer may bar
nonemployee union agents from distributing literature on its
property except in the rare cases the employees are inaccessi-
ble. The Lechmere Court emphasized that, absent the discrimi-
natory application of access rules, “[i]t is only where such ac-
cess [to employees] is infeasible that it becomes necessary and
proper to take the accommodation inquiry to a second level,
balancing the employees’ and employer’s rights.” Lechmere
above at 538.
As the Union leafleted at the Mall’s Robinsons—May store
for the object of appealing to consumers to boycott that store
because it advertised heavily in the local newspaper with which
the Union had a lengthy labor dispute, I find the October 4
leafleting protected by Section 7. “Whether the handbill is con-
sidered a form of consumer information handbilling . . . con-
sumer boycott handbilling, or even a ‘less-favored’ form of
secondary handbilling, it is clearly protected under [Section 7]
of the Act.” Glendale Associates, Ltd., 335 NLRB 27 fn. 5
(2001). Protected Section 7 conduct consists of more than tradi-
tional organizing campaigns; it also includes “the right to con-
duct area standards picketing and consumer boycott activity.”
Sears Roebuck & Co. v. San Diego County Dist. Counsel of
Carpenters, 436 U.S. 180, 206 fn. 42 (1978). And see NLRB v.
Calkins, 187 F.3d 1080, 1086 (9th Cir. 1999); Food & Com-
mercial Workers Local 880 v. NLRB (Loehmann’s Plaza), 74
F.3d 292 (D.C. Cir. 1996).
A property owner seeking to bar nonemployee union agents
engaged in Section 7 activity must shoulder a “threshold burden
. . . . to establish that it had, at the time it expelled the union
representatives, an interest which entitled it to exclude indi-
viduals from the property.” Indio Grocery, 323 NLRB 1138,
1141 (1997), enfd. sub nom. NLRB v. Calkins, 187 F.3d 1080
(9th Cir. 1999). Although Lechmere requires “appropriate re-
spect” for an employer’s property rights, the Board and the
courts do not accord an employer “any greater property interest
than it actually possesses.” O’Neil’s Markets v. NLRB, 95 F.3d
733, 738–739 (8th Cir. 1996); Bristol Farms, 311 NLRB 437,
438 (1993). State law determines the extent of a property
owner’s interest. Thunder Basin Coal v. Reich, 510 U.S. 200,
217 fn. 21 (1994); Bristol Farms at 439.
Lewis v. Telephone Employees Credit Union, 87 F. 3d 1537,
1545 (9th Cir. 1996), directs Federal forums to determine the
law of a State in the following manner:
When interpreting state law, federal courts are bound by deci-
sions of the state’s highest court. “In the absence of such a de-
cision, a federal court must predict how the highest state court
would decide the issue using intermediate appellate court de-
cisions, decisions from other jurisdictions, statutes, treatises,
and restatements as guidance.” Arizona Elec. Power Coop.,
Inc. v. Berkeley, 59 F.3d 988, 991 (9th Cir. 1995) (quoting In
re Kirkland, 915 F.2d 1236, 1239 (9th Cir.1990)). However,
where there is no convincing evidence that the state supreme
court would decide differently, “a federal court is obligated to
follow the decisions of the state’s intermediate appellate
courts.” Kirkland, 915 F.2d at 1239.
The principles articulated in Lewis are consistent with U.S.
Supreme Court’s views expressed in West v. American Tele-
phone & Telegraph Co., 311 U.S. 223 (1940). That case like-
wise directs federal forums must recognize their “duty . . . in
every case to ascertain from all the available data what the state
law is.” Decisions by intermediate appellate courts, the Su-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD446
preme Court said, should figure in the equation used to deter-
mine “state law” unless the Federal forum “is convinced by
other persuasive data that the highest court of the state would
decide otherwise.” Id at 237. [Emphasis added.]
West and Lewis are applicable and particularly apt here. In
my judgment, Respondent relies on a one-size-fits-all set of
rules incompatible with the controlling California precedent
concerning access to private property in labor cases. Likewise,
the General Counsel’s argument that relies on the Board’s elec-
tion and complaint practices in support of a finding that Re-
spondent’s participant identity disclosure rule is unreasonable
illustrates the ease with which the search for controlling state
law can end in favor of more familiar but irrelevant precedent.
Early post-Lechmere California access cases looked exclu-
sively to the California Supreme Court’s decision in Robins v.
Pruneyard Shopping Center, 23 Cal.3d 899 (1979), affd. 447
U.S. 74 (1980), that recognized protection derived from Cali-
fornia’s constitution for citizens engaged in expressive activi-
ties at privately owned shopping malls. Pruneyard reversed a
trial court’s refusal to enjoin that shopping mall owner from
barring access to a group of high school students seeking signa-
tures on a petition protesting a United Nations resolution they
perceived as anti-Semitic. Based primarily on that decision, the
Board concluded in Bristol Farms, supra, and Payless Drug
Stores, 311 NLRB 678 (1993), that California property law
does not permit shopping center owners to exclude nonem-
ployee union agents engaged in protected labor activities such
as area standards picketing or consumer boycott leafleting.
Subsequently, Indio Grocery looked first to Pruneyard in hold-
ing that the owner of a large stand-alone grocery lacked a suffi-
cient property interest to exclude agents from its property. Indio
Grocery recognized, however, the relevance of two other Cali-
fornia Supreme Court cases: In re Lane, 71 Cal.2d 872 (1969),
and Sears, Roebuck & Co. v. San Diego County Dist. Counsel
of Carpenters, 25 Cal.3d 317 (1979). Lane’s relevant facts
exactly parallel those here. In that case, the California high
court reversed the trespass conviction of a union agent for dis-
tributing leaflets on a private sidewalk adjacent to a large gro-
cery urging consumers to boycott that business because it ad-
vertised extensively in a newspaper where the union was in-
volved in a labor dispute.
Pruneyard expressly recognizes an affected property
owner’s right to establish reasonable time-place-manner rules
regulating expressive activities. Because no time-place-manner
rules existed in Indio Grocery, Bristol Farms, or Payless
Drugs, the Board had no need in those cases to address issues
posed by these regulatory schemes. However, the Board held in
Glendale Associates, Ltd., supra, that a mall owner could main-
tain and enforce a rule requiring the advance disclosure of the
names of persons who would actually engage in labor leaflet-
ing. In addition, the Board held that the mall owner could not
lawfully exclude the leafleters because the union refused to
comply with a rule barring any reference in its leaflets to a mall
tenant. The Board viewed this latter requirement as an uncon-
stitutional content—based regulation of speech. In reaching its
conclusion concerning names-disclosure, the Board appears to
rely solely on the UNITE case, a controversial California court
of appeals decision. However, UNITE actually contains no
holding regarding the prior restraint question because the court
concluded that issue had not been properly preserved for re-
view.
Obviously, Glendale Galleria requires that I reject two
claims made by the General Counsel: first, his general assertion
that time-place-manner regulation may not be applied at all to
labor activity conducted at private shopping malls or large
stand-alone shopping facilities in California; and second his
claim that participant identity disclosure rules are unreasonable
Although the Board again relies on Pruneyard in deciding
Glendale Galleria, its action in this recent case appears de-
signed to accord “appropriate respect” for an employer’s prop-
erty rights. Pruneyard aside, the Board’s recognition that rea-
sonable time-place-manner rules can be applied to labor activ-
ity conducted on private property is also consistent with the
express statements of the California Supreme Court. Thus, that
court’s dicta in Diamond I. cited by Respondent and quoted
above, plainly shows that California’s highest court always
contemplated as much.6
However, I find considerable merit in the General Counsel’s
contention that the rationale for the California Supreme Court
decision in Pruneyard’s differs markedly from the rationale
used in its decisions dealing with a labor organization’s right to
engage in peaceful, concerted activities for purposes of collec-
tive bargaining and other mutual aid and protection on private
property. As a result, the decisions of that court strongly sug-
gest that the reach of the protection accorded concerted activi-
ties extends to facilities not encompassed by Pruneyard and
would require regulations, if the property owner chooses to
establish any at all, significantly different from those main-
tained by Respondent. In my judgment, any careful considera-
tion of California law will lead to the conclusion that Prune-
yard’s relevance in access cases involving concerted labor ac-
tivity is only incidental. Instead, the primary source of applica-
ble California law in situations involving concerted labor activ-
ity is derived from a considerable body of State statutory law
and the State’s settled common law as determined its highest
court. Plainly, the two are different and in one recent case the
court itself discussed that difference.
As noted, the Union’s October 4 handbilling is identical to
that in Lane; in addition, it is virtually indistinguishable from
the activity in Sears. In the latter case, the California Supreme
Court found the picketing activity on private property protected
under the state’s “public policy.” Although recognizing that the
U.S. Supreme Court’s decision in Hudgens v. NLRB, 424 U.S.
507 (1975), undermined a one of the legal theories supporting
the earlier California decisions in Lane, supra, and Schwartz-
Torrance Investment Corp. v. Bakery & Confectionery Work-
ers’ Union, 61 Cal.2d 766 (1964), the Sears court effectively
gave those two cases new life by reaffirming their specific
holdings as continuing principles of State labor law.7 Reading

6 The holding in Diamond I was subsequently overruled. However, I
find that does not diminish the import of the dictum cited by Respon-
dent showing that California’s highest court always intended to permit
time-place-manner regulation of labor activity on private property.
7 To differing degrees Schwartz-Torrance and Lane relied on extant
Federal constitutional law at the time they were decided. As the Sears
court noted, until 1972, decisions of this court and the United States
EQUITABLE LIFE ASSURANCE SOCIETY OF THE U.S. 447
Sears, Lane, and Schwartz-Torrance together, I find California
law unquestionably permits peaceful concerted activities con-
ducted by a labor organization on a sidewalk adjacent to the
targeted employer’s entrances even where that sidewalk is pri-
vately owned. This conclusion is also consistent with the very
trespass statute on which Respondent relied to threaten the
Union’s leafleters. Thus, the relevant part of California Penal
Code Section 602.1 provides:
Any person who intentionally interferes with any lawful busi-
ness or occupation carried on by the owner or agent of a busi-
ness establishment open to the public, by obstructing or in-
timidating those attempting to carry on business, or their cus-
tomers, and who refuses to leave the premises of the business
establishment after being requested to leave by the owner or
the owner’s agent, is guilty of a misdemeanor . . . . This sec-
tion shall not apply to any of the following persons: (1) Any
person engaged in lawful labor union activities that are per-
mitted to be carried out on the property by state or federal
law; (2) Any person on the premises who is engaging in ac-
tivities protected by the California Constitution or the United
States Constitution. [Emphasis added.]
Respondent’s contention that California law does not distin-
guish between concerted labor activities and expressive activi-
ties protected by the California Constitution is just badly mis-
taken. As is clear, Pruneyard rests solely on article I, sections 2
and 3 of the State’s constitution. By contrast, the California
Supreme Court went out of its way to note that its holding in
Sears rested not on the state constitution but solely on Califor-
nia’s public policy protecting labor-related concerted activities.
Thus, Sears states:
The Robins [v. Pruneyard] decision rests on provisions of the
California constitution. In the instant case, our decision rests
on the terms of Code of Civil Procedure 527.3; accordingly
we express no opinion on whether the California Constitution
protects the picketing here at issue.
25 Cal.3d at 327 fn. 5. But aside from this distinguishing aspect
of Sears, its importance lies in the fact that it carried forward a
variation on a principle the California high court earlier applied
in an agricultural setting. Thus, in Agricultural Labor Relations
Board v. Superior Court, 16 Cal.3d 392 (1976), the court ap-
proved a rule of general application, i.e., qualified access, in
place of the Babcock & Wilcox rule requiring a case-by-case
determination with respect to the right of nonemployee organ-
izers to access private property.
Sears unmistakably sets forth California’s divergence from
this hallowed Federal labor law principle. It declares: “[The
Babcock & Wilcox doctrine], however, rests on language of the
National Labor Relations Act . . . and, as we have seen, Cali-
fornia courts have never followed the Babcock & Wilcox doc-
trine of requiring a case-by-case determination, but have estab-

Supreme Court had moved steadily toward the protection of the exer-
cise of free speech upon private business property open to the public.
Hudgens withdrew from that course, but when it later considered
Pruneyard on appeal from the state’s high court, the U.S. Supreme
Court permitted California to go its own way under its State constitu-
tion.
lished rules of more general applicability.” To illustrate, the
court referenced Schwartz-Torrance. Id at 329. Later, the Sears
notes that it did not believe the state legislature, by enacting the
Moscone Act (California’s version of the Norris-LaGuardia
Act) under consideration in that case, “intended the courts to
abandon such principles in favor of federal rules, such as the
Babcock & Wilcox doctrine, which rest upon a statutory and
administrative basis not found in California law.” Id. at 330.
The Sears’ rationale, therefore, represents the preeminent pro-
nouncement from California’s highest court concerning the
right of a labor organization (or employees) to access private
property to engage in concerted activity. It deserves to be re-
spected as such by federal forums in search of the applicable
state law.
This “source” distinction is not academic nitpicking; it will
likely become critical in some future case. Even though Prune-
yard extended constitutional protection for expressive activities
at large shopping centers and the like because they constitute
the modern-day functional equivalent of a town center, it reas-
sured property owners that its holding did not apply to “modest
retail establishments.” Sears makes no mention of a modest
establishment limitation. In fact, the distinctive rationale ap-
plied in deciding these two cases suggests that the California
Supreme court intentionally alluded to this limitation in Prune-
yard but not in Sears. Sears extends the right of a labor organi-
zation to peacefully picket or handbill on private sidewalks
adjacent to the entrances of targeted employers because the
State’s labor law establishes that location as the traditional
place for the conduct of such activity. In so doing, the Sears
court expressly chose not to dilute by distance the impact of
area standards picketing, consumer boycott handbilling, and
other, lawful “Do Not Patronize messages,” all important eco-
nomic weapons in labor’s arsenal, as has been done under fed-
eral law by Babcock & Wilcox. The size of the establishment
has nothing to do with the policy advanced in Sears; it does in
Pruneyard. By way of example, a California court of appeals
found in Trader Joe’s Co. v. Progressive Campaigns, Inc., 73
Cal. App. 4th 425 (1999), that Pruneyard did not protect the
political petitioning activity there because of the modest estab-
lishment limitation. But if a union elects to conduct consumer
boycott leafleting, area standards picketing, or 8(b)(7)(C) pub-
licity proviso picketing at that same location, Sears may well
warrant the opposite outcome.
Furthermore, the recent decision in Golden Gateway Center
v. Golden Gateway Tenants Association, 111 Cal.Rptr.2d 336
(SO81900, slip op. pp. 7–10) (August 30, 2001), a four-to-three
decision by the California Supreme Court declining to extend
the Pruneyard holding to the hallways of a large apartment
complex, illustrates the critical importance several members of
the present court (those who would imply a state action limita-
tion for constitutionally protected speech and petition rights)
accord to the distinction between rights guaranteed by the
state’s constitution and rights arising from legislation or the
state’s common law.8 Regardless, I find the principles enunci-

8 In Gateway, the opinion by three members of the majority ad-
dresses the avalanche of criticism leveled at Pruneyard because it con-
strues, without explanation, the free speech and petitioning rights found
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD448
ated in West and Lewis requires the conclusion that a Federal
forum should look to California Supreme Court’s Sears deci-
sion, rather than Pruneyard, as the source of the state law that
applies in cases, such as this, involving the right to engage in
concerted labor activities on private property.
The parties disagree as to whether Respondent’s time-place-
manner rules can serve to license the exclusion of the Union’s
agents and sympathizers on October 4, because they failed to
seek and obtain a permit under Respondent’s established proc-
ess. Although I have earlier rejected the General Counsel’s
contention that California law generally does not sanction the
regulation of concerted activities on private property, I find, for
reasons detailed below, that it would have been utterly futile for
the Union to have followed Respondent’s enormously burden-
some application-permit process9 because its rules contained
express provisions barring the very kind of lawful conduct the
Union sought to undertake at the Mall.
Specifically, I find Respondent’s limitations on the type of
activity and the locations where it may be performed in conflict
with applicable State law. With respect to the former, section
5.6.2 of Respondent’s rules barred consumer boycott activity
despite the clear, unmistakable and longstanding holdings in
Sears, Lane, and Schwartz-Torrance permitting exactly this
kind of activity. Moreover, the Board, based on a different ra-
tionale, has now held that a similar rule represents an imper-
missible content-based restriction. Glendale Associates, Ltd.,
above at 28. In view of the Sears, Lane, and Schwartz-
Torrance trilogy, I find Respondent’s contention that it can bar
labor boycott activity based on the anti-solicitation rule upheld
in the Pasadena Plaza case without merit.
In addition, I find that the provision in Respondent’s rules
limiting expressive activities to particular pre-determined loca-
tions down the center of the Mall’s common areas (only one of
which appears to be even remotely near any entrance to the
Robinsons-May store) contravenes the explicit holdings in
Sears, Lane, and Schwartz-Torrance. In Sears, which followed
6 months after Pruneyard the California Supreme Court stated:
In summary, the decisions of the United States Supreme
Court and of this court recognize that the State of California,
by statute or by judicial decision, may permit union activity
on private premises. Our earlier decision in Schwartz-
Torrance and Lane-rulings which have not been overruled or
eroded in later cases-established the legality of union picket-
ing on private sidewalks outside a store as a matter of state la-
bor law. [Emphasis added]
The Schwartz-Torrance court specifically noted that, if it barred
the picketing involved there (Do Not Patronize picketing per-
mitted by 8(b)(7)(C)’s publicity proviso), it would “deprive the
union of the opportunity to conduct its picketing at the most

in California’s constitution so as to limit private action. Although they
would not overturn Pruneyard, they would find a state action limitation
implicit in the state’s constitution. In a separate opinion, the chief jus-
tice agreed that Pruneyard did not extend to the apartment hallways
involved but declined to join them in imposing the broader limitation.
9 Burdensome may be an understatement. Based on the estimated
number of leafleters and the length of the required applications forms,
an application package for this event could have approached 170 pp.
effective point of persuasion: the place of the involved busi-
ness.” It declined to do so because the owner’s countervailing
right “lies in the shadow cast by a property right worn thin by
public usage.” 61 Cal.2d at 774–775. Moreover, Lane stated
that “[I]f we were to hold the particular sidewalk area [adjacent
to the picketed store] to be ‘off limits’ . . . we would be saying
that by erecting a ‘cordon sanitaire’ around its store, [the store]
has succeeded in immunizing itself from on-the-spot public
criticism.” 71 Cal.2d at 876. Contrary to its claim, I find Re-
spondent’s published limits on the location for expressive ac-
tivities clearly establishes an impermissible “cordon sanitaire”
with respect to protected, concerted labor activity at the Robin-
sons-May store and several other significant Mall tenants
wholly incompatible with California’s labor law as determined
by its highest court.
Respondent contends at some length that, as it fashioned its
rules based on the majority opinions in California courts of
appeal cases, namely, Pasadena Plaza and UNITE, it had am-
ple justification for expelling the permitless union leafleters on
October 4. Pasadena Plaza notes this broad standard applies to
the regulation of expressive activity: “In sum, like any other
time, place and manner regulations, those of a shopping center
are constitutionally reasonable only if they are narrowly drawn
and limited to the end of promoting specifically identified sub-
stantial interests.” 193 Cal.App.3d at 1208–1209. In my judg-
ment, the rules adopted by Respondent elevate its own interests
to such a degree as to completely negate well-established prin-
ciples of the State’s labor law.
The location limitations approved in both Pasadena Plaza
and UNITE appear peculiar to those cases. Consequently, Re-
spondent’s general rule limiting the expressive activity to pre-
designated common areas provides it with substantial discretion
to significantly isolate certain major tenants from consumer
boycott, area standards and other protected labor activity. The
Mall’s location limitations, though perhaps passable for Prune-
yard protected speech and petitioning activity, would tend to
mute this Union’s boycott message. Thus, to the extent that
Respondent argues that Pasadena Plaza and UNITE sanction
its location limitations for protected concerted labor activity, I
reject that claim. Any portion of a state appellate court opinion
that can be construed as permitting a rule banishing protected
labor activity such as that involved here to a location at some
distance from the public entrances maintained at the targeted
employer’s place of business would be directly at odds with
specific holdings—not dicta, specific holdings—of California’s
highest court in Sears, Lane, and Schwartz-Torrance. The hold-
ings by California’s highest court in those three cases unques-
tionably trump the extreme interpretations Respondent gives to
the ambiguous dicta in these two California courts of appeal
cases. As the high court trilogy plainly implies, the identity of
the targeted employer will typically determine the appropriate
location for concerted labor activities.
Furthermore, Pasadena Plaza involved political speech and
petitioning that would be of interest to members of the public in
their role as citizens rather than as consumers. For that reason,
the designation of a specific location in the vicinity of a particu-
lar enterprise is of no unusual importance. By contrast, the
location of the activities similar to those in this case are of key
EQUITABLE LIFE ASSURANCE SOCIETY OF THE U.S. 449
importance as the Union’s conduct specifically appeals to
members of the public in their role as consumers. I perceive
this to be a fundamental distinction and, clearly, the California
Supreme Court decisions do likewise. Where, as here, Califor-
nia’s highest court has specifically declined in Sears to follow
the identical property access approach found in the Federal rule
as expressed in Babcock & Wilcox, I find Respondent’s appli-
cation of Lechmere in the preamble of its rules misstates con-
trolling California law and calls into question its entire regula-
tory scheme insofar as it applies to a labor organizations seek-
ing to engage in concerted activity. Even though by property
owners may establish reasonable time-place-manner regula-
tions, that right does not amount to a license to neuter Sears.
Respondent’s rules unquestionably contain traces of Pasa-
dena Plaza’s language. But it would be misleading to charac-
terize its regulatory scheme as identical to that approved there.
Thus, Respondent’s rules contain draconian nuances other than
those already found in conflict with precedent of the State’s
highest court that depart significantly from the regulatory
scheme Pasadena Plaza viewed favorably. For example, it
struck down a rule requiring in every case that an individual
associated with the applicant accept liability for any damage
resulting from the proposed expressive activity because it
would tend to unconstitutionally chill the exercise of speech or
petitioning rights. However, the court indicated that the mall
owner could require an applicant to furnish insurance based on
an objective determination that the expressive activity pre-
sented a risk. 193 Cal.App.3d at 1218–1219. Here, Respon-
dent’s application process puts the cart far ahead of the horse
by requiring the disclosure of detailed liability insurance infor-
mation that most would regard as highly confidential from the
applicant as well as each potential participant in advance of any
objective risk determination. In my judgment, that requirement
would also have a strong tendency to chill the exercise of law-
ful, concerted activities.
Respondent argues that Sears, Lane, and Schwartz-Torrance
are inapplicable here. Its claim that its elaborate time-place-
manner rules are permitted under the Pasadena Plaza and
UNITE decisions is almost an admission that its rules have been
formulated without regard to the State’s labor law. As noted,
Pasadena Plaza was not a labor case and UNITE seems to es-
chew the existence of separate State labor law. I agree with the
General Counsel’s contention that UNITE is particularly prob-
lematic. Although it involved consumer boycott activity, the
UNITE relied solely on Pruneyard (a political expressive activ-
ity case), failed to discuss Sears (a labor boycott case) at all,
and characterizes Schwartz-Torrance (a labor publicity proviso
case) as being of “dubious” value following Pruneyard despite
the high court’s later, contrary statement in Sears.10 Because

10 In Indio Grocery, the Board referred to Sears’ statement that Lane
had not been overruled. Actually, the statement in Sears refers to
Schwartz-Torrance as well as Lane.
Sears establishes a bright-line rule concerning the type of labor
activity and the places, whether public or private, where a labor
organization may engage in the peaceful pursuit of its collective
bargaining objectives, Respondent lacked the right to establish
and maintain a conflicting regulatory scheme.
Having concluded that Respondent’s rules barred activity
expressly permitted by California law and that it would have
been futile for the Union to seek admittance to the Mall for the
purpose of engaging in its protected leafleting, I find Respon-
dent failed to meet its burden of establishing that it had a right
under California law to exclude the Union’s leafleters from its
property on October 4. I find, therefore, that Respondent vio-
lated Section 8(a)(1) by prohibiting access to the Union’s leaf-
leters under a threat of civil and criminal trespass action. In
view of this finding, I deem it unnecessary to consider General
Counsel’s alternate contention that particular rules maintained
by Respondent violate the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce or in an
industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By prohibiting access to the Union’s leafleters in order to
engage in peaceful consumer boycott handbilling on the side-
walk in the vicinity of the entrances to the Robinsons-May
department store at the Fashion Valley Shopping Center in San
Diego, California, on October 4, 1998, Respondent engaged in
an unfair labor practice within the meaning of Section 8(a)(1)
of the Act.
4. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in a certain
unfair labor practice, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Respondent will be required to post the attached notice in
places at the Fashion Valley Shopping Center where notices to
employees are normally posted. However, in order to assure
that the employees whose rights would be vindicated by this
decision will have a greater opportunity to receive information
about the disposition of this matter, my recommended Order
will require that Respondent also provide the Union with signed
and dated copies of the attached notice for posting by the Union
if it so chooses.
[Recommended Order omitted from publication.]