United Brotherhood v. NLRB ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED BROTHERHOOD OF 
CARPENTERS AND JOINERS OF
AMERICA LOCAL 848; UNITED
BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA; AFL-CIO,
and CARPENTERS LOCAL 505,
UNITED BROTHERHOOD OF
CARPENTERS & JOINERS OF AMERICA, No. 05-75295
AFL-CIO, NLRB Nos.
Petitioners,  20-CA-29636-1
UNITED BROTHERHOOD OF 20-CA-29918-1
CARPENTERS AND JOINERS OF
AMERICA.
Intervenor,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent.

11575
11576 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
NATIONAL LABOR RELATIONS 
BOARD; MACERICH MANAGEMENT,
Petitioners,
UNITED BROTHERHOOD OF Nos. 05-76217
CARPENTERS AND JOINERS OF 05-77116

AMERICA. NLRB Nos.
Intervenor, 20-CA-29636-1
v. 30-CA-29918
MACERICH MANAGEMENT COMPANY; OPINION
MACERICH PROPERTY MANAGEMENT
COMPANY,
Respondents.

On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted
October 15, 2007—San Francisco, California
Filed August 25, 2008
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
*The Honorable Jane R. Roth, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
11580 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
COUNSEL
Caren P. Sencer and David Rosenfeld, Weinberg Roger &
Rosenfeld, Alameda, California, for petitioners United Broth-
erhood of Carpenters and Joiners of America, Local 505,
United Brotherhood of Carpenters and Joiners of America,
Local 848, and United Brotherhood of Carpenters and Joiners
of America.
Stacey McKee Knight, Katten Muchin Rosenman, LLP, Los
Angeles, California, for respondents Macerich Management
Company and Macerich Property Management Company.
Linda Dreeben, David Habenstreit, Joseph P. Norelli, and
Jason Walta, Washington, D.C., for respondent the National
Labor Relations Board.
Jo Anne Bernhard, Sacramento, California, for amicus curiae
International Council of Shopping Centers and California
Business Properties Association.
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11581
Donald C. Carroll, Carroll & Scully, Inc., San Francisco, Cal-
ifornia, for amicus curiae California Labor Federation.
OPINION
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 Constitu-
tion 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:
Rule 1 (“identification ban”): a ban on activities that
identify by name the mall owner, manager, or ten-
ants;
Rule 2 (“commercial purpose rule”): a ban on sign-
age and written materials that interfere with the
“commercial purpose” of the mall;
11582 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
Rule 3 (“signage ban”): a ban on the carrying or
wearing of signs;
Rule 4 (“application requirement”): an application
process that requires the pre-submission of written
materials;
Rule 5 (“designated areas rule”): the exclusion of
exterior areas, including mall sidewalks, from desig-
nated areas where expressive activities may occur;
and
Rule 6 (“peak traffic rule”): the prohibition of
expressive activities during “peak traffic days.”1
According to Macerich, the general purpose of these rules is
to safeguard the commercial activity of the malls, provide
shoppers with a pleasant shopping experience, and protect
shoppers’ safety.
On December 16, 1999, representatives of United Brother-
hood of Carpenters and Joiners of America Local 586 (“Local
586”) distributed handbills at the interior and exterior
entrances of the Sears store at Arden Fair Mall, to protest the
use of a nonunion contractor to build a Sears store in Rose-
ville, California. Local 586 did not file an application with the
mall beforehand, nor did it submit the handbills for pre-
screening, because a union representative had been told by an
Arden Fair employee that an application was unnecessary.
Mall security guards informed the union representatives that
they were trespassing and would be arrested if they remained
on the premises. When the union representatives refused to
leave, mall officials called the police and one representative
1
The challenged regulations are a small portion of the complete “Rules
for Public Use of Common Areas,” and are not numbered consecutively
in those documents. We adopt the numbering used in the National Labor
Relations Board (“NLRB” or “the Board”) opinion.
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11583
was arrested. Later, a Local 586 representative filled out an
application, which was denied as untimely, incomplete, and
ambiguous. On December 21 and 22, 1999, Local 586 repre-
sentatives went to Arden Fair Mall wearing shirts that said
“Do Not Patronize Arden Fair Mall — Unfair to Carpenters.”
On March 7, 2000, United Brotherhood of Carpenters and
Joiners of America Local 505 representatives distributed
handbills and picketed at Capitola Mall to protest the use of
a nonunion contractor to build a new store in the mall, and to
publicize an area standards dispute. The picketers left after the
police arrived and warned them that they could be subject to
citizen’s arrest. Two weeks later, Local 505 representatives
returned to Capitola Mall and again picketed the construction
site. When they refused to leave, they were placed under citi-
zen’s arrest. On May 3, 2000, Local 505 representatives again
picketed at Capitola Mall, this time protesting the use of
another nonunion contractor. Four union representatives were
arrested. In no instance did Local 505 complete an application
beforehand or pre-submit written materials to the mall.
Locals 586 and 505 (“the Unions”) each filed unfair labor
practices charges against Macerich, alleging that Macerich
had violated section 8(a)(1) of the NLRA, 29 U.S.C.
§ 158(a)(1), by unlawfully restricting the Unions’ expressive
activities, unlawfully threatening union picketers with arrest,
and having union picketers unlawfully arrested. The charges
were consolidated by the NLRB General Counsel into a com-
plaint alleging that Macerich had violated section 8(a)(1) by
maintaining six rules that unlawfully interfere with expressive
activity, and by ejecting union representatives from mall
property for engaging in protected activity.
A hearing was conducted before Administrative Law Judge
Jay R. Pollack, who concluded that Macerich had engaged in
unfair labor practices by promulgating, maintaining, and
enforcing each of the challenged rules, and by ejecting union
representatives from mall property for engaging in protected
11584 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
activity. Macerich filed exceptions to ALJ Pollack’s decision,
and the Board’s General Counsel filed cross-exceptions.
In 2005, the NRLB issued a decision affirming ALJ Pol-
lack’s decision in part. Specifically, the Board upheld ALJ
Pollack’s findings that the identification ban and the commer-
cial purpose rule (Rules 1 and 2) were unlawful content-based
restrictions under California law. The Board also upheld ALJ
Pollack’s finding that the application requirement (Rule 4)
was unlawful when applied to ensure compliance with Rules
1 and 2. The Board further found, contrary to ALJ Pollack’s
decision, that the signage ban, the designated areas rule, and
the peak traffic rule (Rules 3, 5, and 6) were reasonable time,
place, or manner restrictions under California law. The
Unions filed a petition for review (Case No. 05-75295), argu-
ing that Rules 3, 5, and 6 are unlawful; Macerich filed a peti-
tion for review (Case No. 05-77116), arguing that Rules 1, 2,
and 4 are permissible; and the NRLB filed a petition for
enforcement of its decision (Case No. 05-76217). The Unions
then filed a motion to intervene in Case No. 05-77116. By
orders of December 9, 2005, and January 24, 2006, we con-
solidated the petitions for review with the Board’s application
for enforcement, and granted the Unions’ motion to intervene.
We now grant the Unions’ petition, grant in part and deny in
part the Board’s petition, and deny Macerich’s petition.
We review the Board’s decision to determine whether the
Board’s findings of fact are supported by substantial evidence
in the record as a whole, and whether the Board correctly
applied the law. Healthcare Employees Union v. NLRB, 463
F.3d 909, 918 (9th Cir. 2006).
II
[1] Section 7 of the NLRA guarantees employees the right
to form labor unions, bargain collectively, and “engage in
other concerted activities for the purpose of collective bar-
gaining or other mutual aid.” NLRA § 7, 29 U.S.C. § 157.
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11585
Section 8(a)(1) of the NLRA makes it an “unfair labor prac-
tice” for an employer “to interfere with, restrain, or coerce
employees” in the exercise of their section 7 rights. NLRA
§ 8(a)(1), 29 U.S.C. § 158(a)(1). While the NLRA by its
terms confers rights only on employees, the United States
Supreme Court has determined that it also restricts an
employer’s right to exclude nonemployee union organizers
from the employer’s property. Lechmere, Inc. v. NLRB, 502
U.S. 527, 535 (1992).
[2] Under Lechmere and subsequent cases, the rights of
nonemployee union representatives to access an employer’s
private property are based in state law. Thunder Basin Coal
Co. v. Reich, 510 U.S. 200, 217 n.21 (1994). Where state
common law grants an employer the right to exclude nonem-
ployee union organizers from its property, the NLRA guaran-
tees access only if the union can show that employees are
otherwise inaccessible to union organizers, and that the
employees’ section 7 rights outweigh the employer’s property
rights. Lechmere, 502 U.S. at 538. Where state law grants
nonemployee union organizers the right to access the employ-
er’s property, a violation of these state rights will also be a
violation of the NLRA. Glendale Assocs., Ltd. v. NLRB, 347
F.3d 1145, 1153 (9th Cir. 2003). Thus, the question of
whether Macerich engaged in unfair labor practices by
excluding the Unions’ representatives turns on whether Cali-
fornia state law grants union representatives the right to
access private mall property.
In analyzing questions of state law, we are bound by the
decisions of the state’s highest court. Glendale, 347 F.3d at
1154. The California Supreme Court has determined that arti-
cle I, section 2 of the California Constitution protects expres-
sive activities — including petitioning and picketing —
conducted in privately-owned shopping centers. Fashion Val-
ley Mall, LLC v. NLRB, 172 P.3d 742, 745 (Cal. 2007) (citing
Robbins v. Pruneyard Shopping Center, 592 P.2d 341 (Cal.
1979)). The California Supreme Court has repeatedly held
11586 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
that “private property can constitute a public forum for free
speech if it is open to the public in a manner similar to that
of public streets and sidewalks,” and that a shopping center to
which the public is invited provides “ ‘an essential and invalu-
able forum’ ” for exercising free speech rights. Id. at 745, 746
(quoting Pruneyard, 592 P.2d at 341). For this reason,
privately-owned shopping centers in California are required to
respect individual free speech rights on their premises to the
same extent that government entities are bound to observe
state and federal free speech rights. Glendale, 347 F.3d at
1154. The California Supreme Court has recognized that this
protection of expressive activities on private property is
“ ‘broader’ and ‘greater’ ” than that offered by the First
Amendment to the United States Constitution. Fashion Val-
ley, 172 P.3d at 749 (citing Gerawan Farming, Inc. v. Lyons,
12 P.3d 720, 735 (Cal. 2000)).
The free speech protection enshrined in the California Con-
stitution is not absolute. Shopping malls may impose reason-
able restrictions on the time, place, and manner of expressive
activities. Id. at 750 (citing Diamond v. Bland, 477 P.2d 733(Cal. 1970)). The level of scrutiny with which we review a
restriction on free speech activity depends on whether the
restriction is a content-neutral regulation of the time, place, or
manner of speech, or a content-based restriction. Id. at 751. A
content-neutral restriction is subjected to intermediate scru-
tiny to determine whether it (1) is narrowly tailored, (2)
serves a significant government interest, and (3) leaves open
ample alternative avenues of communication. Id. A content-
based restriction is analyzed under strict scrutiny to determine
whether the regulation is necessary to serve a compelling
interest and narrowly drawn to achieve that end. Id. at 754.
Applying these tests, we conclude that Rules 1 (identification
ban) and 2 (commercial purpose rule) are impermissible
content-based restrictions, and Rule 4 (application require-
ment) is impermissibly content-based when applied to enforce
Rules 1 and 2. We conclude that Rules 3 (signage ban), 5
(designated areas rule), and 6 (peak traffic rule) are content-
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11587
neutral, but fail the intermediate scrutiny test for reasonable
time, place, or manner restrictions.
A
[3] We begin with the Unions’ challenge to Rule 1, the
identification ban. The Board held that the rule banning activ-
ities identifying by name the mall owner, manager, or tenants
was identical to the rule we held to be unlawful in Glendale.2
2
Macerich contends that Glendale represents a misapplication of Cali-
fornia law, and that the Board erred in relying on it. Even if we were not
bound to follow Glendale, see General Const. Co. v. Castro, 401 F.3d
963, 975 (9th Cir. 2005) (“[w]e are bound by decisions of prior panels
unless an en banc decision, Supreme Court decision or subsequent legisla-
tion undermines those decisions”) (quoting Benny v. U.S. Parole Comm’n,
295 F.3d 977, 983 (9th Cir. 2002)), we would reject this argument.
First, Macerich argues that Glendale relied on NLRB v. Calkins, 187
F.3d 1080 (9th Cir. 1999), and that Calkins has been discredited. While
it is true that the cases identifying First Amendment free speech protec-
tions on private property relied on by Calkins have been overruled at the
federal level, California cases like Pruneyard have incorporated their prin-
ciples into California law. See Fashion Valley, 172 P.3d at 748-49; Prune-
yard, 592 P.2d at 346. In addition, Calkins addressed free speech rights on
the private property of stand-alone stores, which have not taken on the
functional equivalence of a traditional public forum that was found to be
the compelling reason for extending free speech rights in shopping malls
in Pruneyard. See 592 P.2d at 347 n.5. Glendale, which discusses the free
speech protections in shopping malls under California law, is good law
despite the weaknesses in Calkins.
Macerich next argues that recent decisions of the California Court of
Appeal limit Pruneyard’s application of free speech rights on private
property. Specifically, Macerich points to H-CHH Associates v. Citizens
for Representative Gov’t, in which the California Court of Appeal upheld
a shopping center’s proscription on the solicitation of funds from patrons
and stated that solicitation need not be permitted “when it is basically
incompatible with the normal character and function of the facility.” 193
Cal.App.3d 1193, 1221 (Ct. App. 1987). Fashion Valley, which reaffirmed
Pruneyard, silences this argument. 172 P.3d at 748-49. The Fashion Val-
ley court explicitly rejected H-CHH to the extent that it suggested that
speech may be prohibited if it competes with a shopping center’s mer-
chants. Id. at 753 n.12.
11588 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
In Glendale, we began by determining whether the rule was
content-based or content-neutral. 347 F.3d at 1155. Speech-
regulating rules are considered content-neutral when the rules
are not related to the subject or topic of the speech. Id. (citing
Ward v. Rock Against Racism, 491 U.S. 781 (1989)).3 Rules
are generally considered content-based when the regulating
party must examine the speech to determine if it is acceptable.
Id. (citing Desert Outdoor Adver. v. City of Moreno Valley,
103 F.3d 814, 820 (9th Cir. 1996)). In Glendale, we deter-
mined that a rule prohibiting literature that included the name
of a mall owner, manager, or tenant was content-based
because the mall would have to review the literature to deter-
mine if it included an owner’s, manager’s, or tenant’s name
before approving the literature for distribution. Id. at 1156.4
The same analysis applies here: the identification ban is
content-based because Macerich would have to review the
content of speech and literature to determine whether the
speech violated the ban by naming a mall tenant, owner, or
manager.
[4] Because the identification ban is content-based, we next
examine it to determine whether it survives strict scrutiny. Id.
“Content-based regulations receive strict scrutiny because
‘content-based restrictions are especially likely to be improper
attempts to value some forms of speech over others, or are
particularly susceptible to being used . . . to distort public
debate.’ ” Id. at 1155 (quoting City of Ladue v. Gilleo, 512
U.S. 43, 60 (1994) (O’Connor, J., concurring)).5 Content-
3
California state courts borrow from federal First Amendment jurispru-
dence to analyze whether a rule is content-based or content-neutral. Glen-
dale, 347 F.3d at 1155.
4
In Glendale, we also found the rule to be content-based because it
allowed exceptions for commercial literature naming a mall owner, man-
ager, or tenant, and for literature from groups and persons who were in a
primary labor dispute with a mall tenant. These additional details enhance
the content-based nature of the regulation, but were not necessary to a
finding that the regulation was content-based.
5
California state courts also draw from First Amendment jurisprudence
to determine whether a content-based rule survives strict scrutiny under
the California Constitution. Glendale, 347 F.3d at 1156.
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11589
based restrictions are presumptively unconstitutional; a
content-based restriction will pass constitutional muster “only
if it employs the least restrictive means to further a compel-
ling interest.” Id. at 1156 (citing R.A.V. v. City of St. Paul, 505
U.S. 377, 382 (1992) and Frisby v. Schultz, 487 U.S. 474, 483
(1988)). The burden is on the regulating authority to prove
that the restriction is justified without reference to the content
of the speech. Id. (citing Rock Against Racism, 491 U.S. at
791). Courts have consistently struck down restrictions based
in hostility or favoritism towards particular messages. Id. at
1157-58.
In Glendale, the mall argued that its ban on the naming of
an owner, manager, or tenant served its interest in ensuring
that normal business operations were not disrupted. Id. We
held that this stated interest was belied by the fact that the
mall made an exception for speech promoting primary boy-
cotts of mall tenants, speech that was likely to be the most
disruptive of normal business operations. Id. at 1157. We also
held that the rule was untenable because it was motivated by
hostility towards messages that might adversely affect busi-
ness. Id. at 1157-58. We stated, “[i]n restricting such critical
speech about their tenants, owners, or managers, [the] rule
contravenes the purpose of California free speech protections:
the preservation of discussion of issues even when they are
contrary to a regulating party’s belief or interest. . . . The Cali-
fornia Constitution does not permit censorship of contrary
ideas.” Id. at 1158.
[5] Macerich asserts a similar interest here. Susan Valen-
tine, Senior Vice President of Marketing for Macerich, testi-
fied that Macerich adopted the identification ban to protect
the “good name” of the mall and its tenants. This stated justi-
fication exposes Macerich’s hostility towards messages criti-
cal of the mall or its tenants. Because free speech protections
were designed to protect critical speech, we cannot find the
suppression of critical speech to be a compelling interest. We
find that “[t]he Mall’s purpose to maximize the profits of its
11590 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
merchants is not compelling compared to the Union’s right to
free expression.” Fashion Valley, 172 P.3d at 754. Macerich
has provided no justification for the identification rule that
does not reference the content of the speech. We therefore
find that Rule 1 (the identification ban) does not survive strict
scrutiny.
B
[6] The same analysis applies to Rule 2, the commercial
purpose rule. We begin by analyzing whether the rule is
content-based or content-neutral. Rule 2 prohibits signage and
written materials that interfere with the “commercial purpose”
of the mall. As with the identification rule, this rule requires
that the regulating authority examine the content of the writ-
ten material to determine whether it complies with the rule.
Like the identification rule, the commercial purpose rule is
content-based.
Next, we address whether Rule 2 survives strict scrutiny.
Valentine and Carmen Lytle, Arden Fair’s General Manager,
explained that the commercial purpose rule was intended to
eliminate written materials that would financially damage the
mall or its tenants. The Board concluded that the purpose of
the rule was to “place restrictions on the content of the mes-
sage so as to limit any negative publicity and not hurt sales.”
Rule 2 is entirely motivated by hostility towards messages
critical of the mall or its tenants. Macerich offers no content-
neutral justification for the rule. Therefore, the commercial
purpose rule cannot survive a strict scrutiny analysis.
Our conclusion is supported by the California Supreme
Court’s recent decision in Fashion Valley. In Fashion Valley,
the California Supreme Court analyzed a mall rule that pro-
hibited speech “[u]rging, or encouraging in any manner, cus-
tomers not to purchase the merchandise or services offered by
any one or more of the stores or merchants in the shopping
center.” 172 P.3d at 744. The Court determined that the rule
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11591
was content-based because it distinguished favored speech
from disfavored speech based on the ideas expressed: speech
urging a boycott was prohibited, but other speech was not. Id.
at 751-52.
Fashion Valley distinguished the boycott rule from rules
prohibiting face-to-face solicitation of funds, which have been
held to be content-neutral. The Court explained that solicita-
tion bans are concerned with the manner of speech, and are
directed at “the conduct and intrusiveness that face-to-face
solicitation for immediate donation or exchange of funds
inherently promotes.” Id. at 752-53. Fashion Valley expressly
rejected the mall’s argument that the ban on speech advocat-
ing a boycott could be similarly justified as a restriction on
the manner of speech. Id. at 750, 753 (rejecting the mall’s
argument that the boycott ban was “a ‘reasonable regulation’
designed to assure that free expression activities ‘do not inter-
fere with normal business operations’ . . .”). Unlike solicita-
tion, the Court noted, peacefully urging a boycott does not by
its nature cause congestion or promote fraud or duress. Id. at
753.
As the California Supreme Court noted, shopping centers
are free to “prohibit conduct ‘calculated to disrupt normal
business operations’ or that would result in ‘obstruction of or
undue interference with normal business operations.’ ” Id.(quoting Diamond, 477 P.2d at 733) (emphasis ours). How-
ever, “speech that does no more than attempt to peacefully
persuade customers not to patronize a business cannot be
banned on the ground that it interferes with normal business
operations.” Id. at 751 n.8. Fashion Valley explained that the
“distinction between urging customers to boycott a business
and physically impeding access to that business” is crucial. Id.The California Supreme Court also noted that citizens have a
“strengthened interest, not a diminished interest, in speech
that presents a grievance against a particular business in a pri-
vately owned shopping center, including speech that advo-
cates a boycott.” Id. at 750.
11592 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
[7] The commercial purpose rule at issue here, which was
put in place to limit speakers’ abilities to persuade customers
not to patronize certain businesses, is an attempt to restrict the
speakers’ ability to persuade. The rule does not prohibit con-
duct that would interfere with normal business operations, but
instead infringes upon the strong free speech interest in peace-
fully presenting a grievance to an offending business. Because
limiting critical speech is an impermissible regulatory goal,
Rule 2 cannot survive a strict scrutiny analysis.
C
[8] The NLRB correctly held that Rule 4 (application
requirement), when used to enforce the unlawful Rules 1
(identification ban) and 2 (commercial purpose rule) is like-
wise unlawful. The Board reasoned that because the applica-
tion process is used to screen written material for compliance
with the rule banning the identification of a mall owner, man-
ager or tenant, and with the rule banning signage that inter-
feres with the commercial purpose of the Malls, the rule is
content-based. We agree, and reiterate that the examination of
the content of a speaker’s message is the hallmark of a
content-based rule. The application requirement becomes
unlawful when used as a tool to ferret out objectionable con-
tent.
Our conclusion is consistent with that of the California
Court of Appeal in H-CHH, in which the Court struck down
as constitutionally defective an application process used to
screen for expressive activity that would adversely affect the
shopping center environment, atmosphere, or image. 193
Cal.App.3d at 1211.6
6
Macerich argues that our analysis should be guided instead by Union
of Needletrades, Industrial & Textile Employees, AFL-CIO v. Superior
Court, 56 Cal.App.4th 996 (Ct. App. 1997) (“UNITE”), in which the Cali-
fornia Court of Appeal upheld an application process for expressive activ-
ity in a shopping mall. UNITE gives no guidance because the Court did
not address whether the underlying restrictions on naming tenants and on
interfering with the commercial purposes of the mall were valid, as it
found that those issues had not been properly preserved for review. Id. at
1020-21.
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11593
Macerich argues that even if Rules 1 and 2 are unlawful,
the Board’s order is overbroad because it invalidated the
application process entirely, even when used to further legiti-
mate goals like proper scheduling of events. This argument
misstates the Board’s order. The order enjoins Macerich from
“[m]aintaining and enforcing a rule that requires the presub-
mission of written materials for the purpose of enforcing” the
unlawful identification and commercial purpose rules (empha-
sis ours). We construe this statement to mean that the applica-
tion process may remain in use insofar as it is used to promote
legitimate time, place, and manner restrictions on expressive
activities. So construed, there is nothing overbroad about the
holding.
D
[9] We turn to the Unions’ challenge to Rule 3, the ban on
carrying or wearing signs. The NRLB concluded that Rule 3
was a reasonable restriction on the time, place, or manner of
speech. To be enforceable, restrictions on time, place, or man-
ner must (1) be justified without reference to the content of
the regulated speech, (2) be narrowly tailored to serve a sig-
nificant interest, and (3) leave open ample alternative chan-
nels for the communication of the information. Berger v. City
of Seattle, 512 F.3d 582, 589 (9th Cir. 2008) (citing Clark v.
Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).7
Failure to satisfy any single prong of this test invalidates a
regulation. Kuba, 387 F.3d at 858 (quoting Grossman v. City
of Portland, 33 F.3d 1200, 1205 (9th Cir. 1994)).
The Unions concede that Rule 3 is content-neutral, but
argue that it is not narrowly tailored to promote a significant
mall interest and does not leave open ample alternatives for
communication. To prove that a regulation is narrowly tai-
7
California Courts apply federal precedent to determine whether a rule
is a reasonable time, place, or manner restriction. See Kuba v. 1-A Agric.
Ass’n, 387 F.3d 850 (9th Cir. 2004).
11594 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
lored to serve a significant interest, the regulating authority
must identify the interests served by the restriction and pro-
vide evidence that the proposed communicative activity
endangers those interests. Id. at 858-59. Speculation as to
what might happen if the proposed activity was allowed is
insufficient. Id. at 859-60 (finding lack of evidence to support
ban on demonstrating where city failed to provide evidence
beyond a “first hand” account that “there is simply no space
in the fire lanes or the concrete apron in which [demonstra-
tors] would be safe . . .”). Studies, anecdotes pertaining to dif-
ferent locales, history, consensus, and “simple common
sense” may serve as evidence that the proposed activity will
endanger significant interests. G.K. Ltd. Travel v. City of Lake
Oswego, 436 F.3d 1064, 1073 (9th Cir. 2006). In the case of
safety restrictions, for example, the regulating body need not
wait until someone is injured before promulgating regulations.
Edwards v. City of Coeur d’Alene, 262 F.3d 856, 865 n.16
(9th Cir. 2001).
Macerich argues that Rule 3 (signage ban) is justified by
convenience, safety, and aesthetic concerns. Valentine testi-
fied that the signage ban is necessary to prevent people from
having to walk out of their way to avoid expressive activities,
keep signage looking professional, and protect individuals
from injuries caused by signs or the sticks they are attached
to. We generally consider safety and convenience to be valid
regulatory objectives. Berger, 512 F.3d at 592. In at least
some circumstances, we have recognized aesthetics to be a
significant interest. See Foti v. City of Menlo Park, 146 F.3d
629, 637 (noting that while cities do have a substantial inter-
est in protecting the aesthetic appearance of their communities
by avoiding visual clutter, these interests may not be compel-
ling.). Common sense supports the idea that picketers’ signs
may inconvenience retailers and customers by blocking sight
lines in shopping centers, although the record does not include
evidence to reinforce this conclusion. Similarly, common
sense suggests that rigid signs with sharp corners, especially
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11595
if attached to sharp or heavy sticks, could pose a threat to
safety.
[10] While there may be sufficient common sense support
for Macerich’s assertion that the proposed communicative
activity endangers significant interests, the signage ban is not
narrowly tailored to serve those interests. For a regulation to
be narrowly tailored, the stated interest must be served “less
effectively absent the regulation,” and the regulation may not
“burden substantially more speech than is necessary to further
the [regulating authority’s] legitimate interests.” Kuba, 387
F.3d at 861. The regulation need not advance the regulating
authority’s interests in the least restrictive or least intrusive
way, G.K., 436 F.3d at 1074, but the existence of numerous
obvious and less-burdensome alternatives is relevant to the
regulation’s “fit,” Edwards, 262 F.3d at 865 (quoting Cin-
cinatti v. Discovery Network, Inc., 507 U.S. 410, 418 n.13
(1993)).
[11] The complete ban on wearing or carrying signs elimi-
nates any safety or aesthetic concern associated with signs or
sign poles. For that reason, it may be said that Macerich’s
interests would be served less effectively absent the ban.8
However, Rule 3 burdens substantially more speech than is
necessary to further Macerich’s legitimate interests. Rule 3
doesn’t just ban speech that is communicated in dangerous or
intrusive ways; it bans virtually all speech communicated
visually through images and text.9 Moreover, numerous obvi-
8
The dissent would have us stop here, before analyzing whether the reg-
ulation burdens substantially more speech than is necessary to further
Macerich’s legitimate goals or determining whether numerous obvious
and less-burdensome alternatives exist. The volume of speech burdened
and the availability of numerous alternatives are appropriate consider-
ations in a complete and thorough narrow tailoring analysis. We are not,
as the dissent suggests, insisting that the challenged regulation be the
“least restrictive means” for achieving Macerich’s goals. We agree that
such an analysis would be inappropriate where, as here, intermediate scru-
tiny is the appropriate standard. See, e.g., Ward, 491 U.S. at 797.
9
There are exceptions, of course. The Unions could have distributed
handbills or attached two signs to a table within an area designated for
expressive conduct.
11596 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
ous and less burdensome alternatives exist. The same safety
considerations could be served by eliminating signs with par-
ticularly dangerous characteristics. Macerich could, for exam-
ple, insist that signs be made from soft materials, have
rounded corners, or be attached to cardboard poles. Aesthetic
and convenience concerns could be promoted by restricting
the size of signs or allowing demonstrators to wear signs in
the form of lettering on t-shirts. Because the complete ban on
carrying or wearing signs is substantially overbroad, it cannot
satisfy the requirement that the restriction be “narrowly tai-
lored.”
Even if we held the signage ban to be narrowly tailored to
serve a significant interest, it would fail intermediate scrutiny
because it fails to leave open ample alternatives for communica-
tion.10 See Kuba, 387 F.3d at 858. A regulation that effectively
prevents a speaker from reaching his intended audience fails
to leave open ample alternatives. Edwards, 262 F.3d at 866.
Where “there is no other effective and economical way for an
individual to communicate his or her message,” alternative
methods of communication are insufficient. Id. We will not
invalidate a regulation merely because it restricts the speak-
er’s preferred method of communication. Id.; see also Savage
v. Trammel Crow Co., 223 Cal.App.3d 1562, 1575 (Ct. App.
1990) (“The adequacy of alternative channels is not measured
by the fondest hopes of those who wish to disseminate
ideas.”). However, a regulation that forecloses an entire
medium of public expression across the landscape of a partic-
ular community or setting fails to leave open ample alterna-
10
The dissent essentially asks us to ignore this prong of the analysis,
stating that “the Supreme Court has repeatedly admonished lower courts
not to use the ‘ample alternative channels’ requirement as a means of
overturning regulations.” The cases cited by the dissent, however, stand
for the proposition that this Court may not overturn a valid time, place, or
manner restriction on the grounds that we disagree with the regulating
authority’s methods. See, e.g., Ward, 491 U.S. at 799. These cases do not
suggest that the “ample alternative means” requirement is no longer a
valid prong of the time, place, and manner analysis.
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11597
tives. G.K., 436 F.3d at 1074. As we noted in Foti, free
speech protections extend to the “right to choose a particular
means or avenue of speech . . . in lieu of other avenues.” 146
F.3d at 641.
We are particularly wary of any regulation that completely
forecloses “a venerable means of communication that is both
unique and important.” Gilleo, 512 U.S. at 55. Picketing is
one such venerable medium and has unique advantages over
other forms of communication, including immediate recogni-
tion by passers-by. Foti, 146 F.3d at 641. In Edwards, we
invalidated an ordinance banning the attachment of wooden or
plastic supports to signs carried during parades and assem-
blies because “the classic image of a picketer — dating back
to the early days of labor protests — is of an individual hold-
ing aloft a sign-bearing standard.” 262 F.3d at 865.
Moreover, when picketing is the chosen means of commu-
nication, the location of the protest is particularly important.
As the California Supreme Court reiterated in Fashion Valley:
“When the activity to be protected is the right to picket an
employer, the location of the employer’s business is often the
only effective locus; alternative locations do not call attention
to the problem which is the subject of the picketing and may
fail to apply the desired economic pressure.” 172 P.3d at 748
(citing Diamond, 447 P.2d at 733).
[12] Here, the NLRB found that the signage ban left open
ample alternatives for communication because the Unions
were still able to advertise their dispute in the media and
picket and handbill on public property. The Board now argues
that the mall regulations allow the Unions to attach two signs
to a table, thus granting them the advantage of immediate rec-
ognition by passers-by. We conclude that these alternatives
are legally inadequate. While attaching two signs to a table
might allow the Unions to communicate with passers-by, such
a communication method fails to convey the same message of
protest associated with “an individual holding aloft a sign-
11598 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
bearing standard.” Picketing and handbilling on public prop-
erty, while preserving the symbolism of the hand-held sign,
would fail to reach the Unions’ intended audience: patrons of
the Malls or of particular stores within the Malls. Physically
removing the protest from the offending employer’s location
would seriously diminish the symbolic and economic impact
of the message. Advertising the dispute in the media would
similarly fail to target the desired audience, and is signifi-
cantly more expensive. The signage ban left the Unions with
a narrow range of ineffective options. Because the signage
ban is not narrowly tailored and does not leave open ample
alternatives for communication, the Board incorrectly applied
the law in determining that Rule 3 was a reasonable time,
place, or manner restriction.
E
[13] The Board also found that Rule 5, excluding exterior
sidewalks from the designated areas where expressive con-
duct may occur, was a lawful time, place, or manner restriction.11
Because the Unions concede that this rule is content-neutral,
we begin by examining whether it is narrowly tailored to
serve a significant interest.12
11
Federal courts have consistently protected expressive activities on
public sidewalks. See, e.g., United States v. Grace, 461 U.S. 171 (1983)
(invalidating statute prohibiting distribution of leaflets and display of signs
on sidewalks on Supreme Court grounds because not narrowly tailored).
California Courts have extended the same protection to privately-owned
sidewalks surrounding privately-owned shopping malls. See In re Lane,
457 P.2d 561 (Cal. 1969) (reaffirmed in Fashion Valley, 172 P.2d at 747).
12
The dissent avoids this analysis by claiming that the validity of a regu-
lation restricting petitioning activities to two designated areas has already
been determined by the California courts. The dissent cites the California
Court of Appeals’s decision in UNITE, 56 Cal.App.4th at 1012. The dis-
sent then claims that a “state appellate court’s determination of state law
is binding and must be given deference,” citing Hicks v. Feiock, 485 U.S.
624, 629-30, 630 n.3 (1988) for support. Hicks actually says that a federal
court is not to apply a rule different from that stated by the state intermedi-
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11599
According to Valentine, limiting expressive activities to
certain designated areas is necessary to preserve traffic flow
and ensure compliance with fire codes. Macerich excluded
sidewalks from the designated areas for expressive activities
because of a concern that mall patrons would have to step into
the street to avoid expressive activity on sidewalks, thereby
jeopardizing their safety. The Unions acknowledge that these
safety and convenience interests are significant, but argue that
the exclusion of sidewalks from the designated areas for
expressive activity is not narrowly tailored to advance these
interests.
[14] Specifically, the Unions argue that the mall sidewalks
are no different from — or narrower than — sidewalks in
most downtown areas, on which expressive activities are per-
mitted. This reasoning finds support in Grace, in which the
United States Supreme Court stated, “the building’s perimeter
sidewalks are indistinguishable from other public sidewalks in
the city that are normally open to the conduct that is at issue
here. . . .” 461 U.S. at 182. The California Supreme Court has
acknowledged that “[p]ersons can be excluded entirely from
areas where their presence would threaten personal danger or
block the flow of passenger or carrier traffic, such as door-
ways and loading areas.” In re Hoffman, 434 P.2d 353, 358
(Cal. 1967). However, Rule 5 restricts significantly more than
activity in doorways and loading areas.
ate appellate court where “the highest court has refused to review the
lower court’s decision rendered in one phase of the very litigation which
is now prosecuted by the same parties before the federal court.” Id. at 630
n.3. This is not the case here. Hicks also states that “where an intermediate
appellate state court rests its considered judgment upon the rule of law
which it announces, that is a datum for ascertaining state law which is not
to be disregarded by a federal court unless it is convinced by other persua-
sive data that the highest court of the state would decide otherwise.” Id.A thorough time, place, and manner analysis convinces us that the Califor-
nia Supreme Court would conclude that the exclusion of sidewalks from
the designated areas for expressive activities violates free speech protec-
tions.
11600 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
The Unions argue that numerous obvious and less restric-
tive alternatives could achieve the Malls’ goals. For instance,
they suggest that fire code compliance could be ensured by
regulations prohibiting expressive activities in entrances and
other locations that must be kept clear. Cf. Berger, 512 F.3d
at 603 (upholding rule restricting expressive activity to six-
teen designated locations because the rule furthered “signifi-
cant city interests, by keeping street performances from
posing threats to the flow and convenience of . . . patrons in
heavily congested areas and entrances to buildings”). We
agree, and add that regulations prohibiting the restriction of
traffic flow on sidewalks would sufficiently address the other
safety and convenience concerns.13
Rule 5 also fails to leave open ample alternatives for com-
munication. We have previously recognized that effective
communication depends on the speaker’s ability to address
the intended audience. In United States v. Baugh, for exam-
ple, we held that a statute requiring a permit to demonstrate
on National Park property was unlawful when applied so as
to refuse a group permission to demonstrate in front of a
Park’s visitors’ center. 187 F.3d 1037, 1044 (9th Cir. 1999).
13
Macerich argues that UNITE, 56 Cal.App.4th at 1010-13, compels a
contrary conclusion. We note that the rule discussed by the California
Court of Appeal in UNITE prohibited a demonstration in front of a partic-
ular store because the demonstration would have violated a fire code. The
UNITE court held that the preferred demonstration area was not an appro-
priate place to conduct expressive activities. Id. at 1012. In the situation
at issue here, no fire code was shown to have been violated; there is no
demonstrated reason that sidewalks are not an appropriate place for
expressive activities. While the reasoning in UNITE was extrapolated to
apply to several other mall rules, including rules that are more similar to
Rule 5, the UNITE court did not perform a narrow tailoring analysis on
any restriction other than that prohibiting a demonstration that would have
violated a fire code. Because the analysis of whether a restriction on
expressive activity is sufficiently narrowly tailored is necessarily a fact-
specific inquiry, see Berger, 512 F.3d at 601-04 (analyzing whether sev-
eral restrictions on the location of speech activities sufficiently matched
the stated interests), UNITE does not guide our analysis here.
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11601
We noted that the demonstrators were ordered to a “First
Amendment area” 150 to 175 yards away from the visitors’
center where their target audience was located, and that this
was an insufficient alternative for communication because the
demonstrators were “left with no alternative that allowed
[them] to reach [their] intended audience.” Id.[15] Here, the Malls cover large areas and have numerous
entrances. By banning expressive activity on sidewalks and
confining expressive activity to designated areas which may
be hundreds of yards from any given store or its patrons,
Macerich has effectively cut off access to the Unions’
intended audience(s). The fact that the Unions may still adver-
tise their dispute in the media, and picket and handbill on pub-
lic property, again fails to cure the constitutional infirmity.
Because Rule 5 is not narrowly tailored and does not leave
open ample alternatives for communication, it is not a lawful
time, place, or manner restriction.
F
[16] Finally, we turn to Rule 6, the prohibition on expres-
sive activities during peak traffic periods. As applied by both
Malls, Rule 6 prohibits expressive activity throughout almost
the entire holiday shopping period: the time from Thanksgiv-
ing through the end of December. During this period, mall
traffic doubles, and the Malls’ tenants do 75% of their yearly
business. Based on this evidence of increased mall traffic, the
Board found the peak traffic rule to be justified by interests
in public safety, preserving traffic flow, and controlling con-
gestion.
A complete ban on expressive activities is narrowly tailored
only where “each activity within the proscription’s scope is an
appropriately targeted evil.” Frisby, 487 U.S. at 485.
Macerich has failed to explain how banning every expressive
activity during peak times advances a significant interest.
Instead, Macerich attempted to justify the entire ban as a
11602 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
“common sense” measure to decrease crowding during peak
times. Numerous less restrictive alternatives would promote
the same interest, including a limit on the number of individu-
als engaged in expressive activities at any one time.14
Although a regulation need not be the least restrictive method
of advancing a compelling interest, G.K., 436 F.3d at 1074,
the complete ban at issue here is certainly overbroad.
[17] The complete ban on expressive activities, more than
any of the other mall rules, fails to leave open ample alterna-
tives for communication. Again, Macerich suggests the alter-
natives of media advertising, demonstrations on public
property, and expressive activity in the Malls during the days
of the year when such activity is not entirely prohibited. As
discussed above, the options of media advertising and picket-
ing on public property are neither effective nor economical.
Limiting expressive activity to non-peak times eliminates the
opportunity to comment upon or criticize — directly and in-
person — tenants’ actions during the time that they make 75%
of their sales, and forecloses any chance of effectively reach-
ing a large percentage of the target audience. For these rea-
14
The Board points to H-CHH and UNITE, in which California courts
upheld similar restrictions on expressive activities during peak traffic peri-
ods, to support its conclusion that the peak traffic rule is permissible.
Because neither H-CHH nor UNITE explicitly addressed whether the reg-
ulations in question were narrowly tailored, we do not find them informa-
tive in this analysis. The dissent also cites Costco Cos., Inc. v. Don
Gallant, 96 Cal.App.4th 740, 753 (Ct. App. 2002). The context in Costco
was markedly different from that in the present case. Costco supplied evi-
dence that petitioner gatherers in its store had directly interfered in the
store’s business, and imposed considerable expenses, administrative bur-
dens, and risks. Id. at 750-51. Petition gatherers had physically and ver-
bally abused staff and customers, and altercations between proponents and
opponents of particular petition gathering efforts had escalated to the point
that rifles had been pointed at petition gatherers. Id. at 751-52. Given these
circumstances, the court determined that Costco had the right to impose
regulations designed to protect its business operations, and that limiting
interferences to its less profitable days was a rational restriction. Id. at
753.
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11603
sons, the peak traffic rule is not a reasonable time, place, or
manner restriction.
III
Rules 1 (identification ban) and 2 (commercial purpose
rule) are impermissible content-based restrictions on expres-
sive activity. Rule 4 (application requirement) is likewise
unlawful when used to enforce Rules 1 and 2. Rules 3 (sign-
age ban), 5 (designated areas rule), and 6 (peak traffic rule)
are content-neutral, but cannot be justified as reasonable
restrictions on the time, place, or manner of expressive activi-
ties. Because the promulgation and enforcement of each of
these rules impermissibly infringes on the free speech rights
preserved by the California Constitution, we hold that the
Malls had no right to exclude union representatives from their
premises under state law. The enforcement of the contested
mall rules against Union representatives, and the exclusion of
the Union representatives from mall property, was therefore
a violation of section 8(a)(1). We grant the Unions’ petition,
grant in part and deny in part the Board’s petition, and deny
Macerich’s petition.
PETITIONS GRANTED IN PART; DENIED IN PART
CALLAHAN, Circuit Judge, concurring in part and dissent-
ing 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 Califor-
nia courts have approved the challenged restrictions. The fed-
eral courts may not ignore state case law balancing the
11604 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
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 prop-
erty.
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 diffi-
cult and delicate responsibility, which the Congress commit-
ted 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 (1957) (emphasis added). We
accord considerable deference to the National Labor Relations
Board’s (“NLRB” or “Board”) interpretation of the NLRA as
long as it is “rational and consistent” with the statute. NLRB
v. Calkins, 187 F.3d 1080, 1085 (9th Cir. 1999). We uphold
decisions of the NLRB on appeal if the findings of fact are
supported by substantial evidence and if the agency correctly
applied the law. Retlaw Broadcasting Co. v. NLRB, 172 F.3d
660, 664 (9th Cir. 1999). It is well-settled that the NLRB is
bound by state law when determining the right of nonem-
ployee union representatives to access an employer’s private
property. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200,
217 n.21 (1994); Lechmere, Inc. v. NLRB, 502 U.S. 527, 535
(1992). Therefore, it follows that if California courts hold that
a time, place, or manner restriction is permissible under Cali-
fornia law, then the NLRB should be entitled to rely on those
cases when attempting to determine if a mall has violated
NLRA section 8(a)(1).
A. California courts properly apply intermediate scrutiny to
content neutral restrictions on free speech on private
property.
A content-neutral time, place, and manner restriction must
be “narrowly tailored to serve a significant governmental
interest,” and “leave open ample alternative channels for the
communication of the information.” Ward v. Rock Against
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11605
Racism, 491 U.S. 781, 791 (1989). “A statute is narrowly tai-
lored if it targets and eliminates no more than the exact source
of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S.
474, 485 (1988). Whether a regulation leaves open ample
alternative channels for communication of the information
requires analyzing if the message “could not be communi-
cated in other ways” and the barriers to conveying the
intended message. Clark v. Cmty for Creative Non-Violence,
468 U.S. 288, 294 (1984). “[A]n incidental burden on speech
is no greater than is essential, and therefore is permissible
under [United States v.] O’Brien[, 391 U.S. 367, 377 (1968)],
so long as the neutral regulation promotes a substantial gov-
ernment interest that would be achieved less effectively
absent the regulation.” United States v. Albertini, 472 U.S.
675, 689 (1985). “The validity of such regulations does not
turn on a judge’s agreement with the responsible decision-
maker concerning the most appropriate method for promoting
significant government interests.” Id.There is no federal right to engage in First Amendment
activity that is unrelated to the business of a privately owned
shopping center. Hudgens v. NLRB, 424 U.S. 507, 518
(1976); Lloyd Corp. v. Tanner, 407 U.S. 551, 570 (1970).
California has chosen to provide additional protection for
expressive activity in private shopping malls under article I,
section 2 of the California Constitution. Fashion Valley Mall,
LLC v. NLRB, 172 P.3d 742, 749-50 (Cal. 2007). California
courts have concluded, however, that shopping malls may
impose reasonable time, place, and manner restrictions upon
speech. Robins v. Pruneyard Shopping Ctr., 592 P.2d 341,
347 (Cal. 1979); see also Fashion Valley Mall, 172 P.3d at
754 (reaffirming that “[s]hopping 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
. . .”). California law allows content-neutral regulation of
speech by municipalities and private actors if the regulations
are narrowly tailored to protect a proper municipal or private
11606 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
interest. See In re Hoffman, 434 P.2d 353, 355-56 (Cal. 1967)
(discussing balancing use of property for municipal or private
purposes and the First Amendment). Because California
courts apply the exact same scrutiny to time, place, and man-
ner restrictions on First Amendment activity as federal courts,
the NLRB is entitled to rely upon a California court’s deter-
mination that restrictions similar to those imposed by
Macerich are proper methods of protecting private property
rights under state law.
B. The majority’s decision fails to give proper deference to
the mall’s time, place, and manner regulation of the
wearing and carrying of signs.
Macerich has not imposed a complete ban on the use of
signs, but rather has a rule that “[p]articipants may not carry
or wear any signs, posters or placards.”1 Macerich allows
posters, placards, displays and signs that are smaller than 22
inches by 28 inches and are affixed to a table “so as not to
endanger any person or property, block the view of any ten-
ant’s store or display, or directly compete with Center activi-
ties or the business displays or logos of Center tenants.”
California courts have recognized that private property
owners have different interests than municipalities for the pur-
poses of balancing those interests against First Amendment
rights. In re Hoffman, 434 P.2d at 355 n.3. Private property
owners have an interest in avoiding interference with the
commercial purposes of property.2 Id. at 356-67. This
1
Strangely, the majority omits the first part of the rule, which states,
“[p]articipants may hold clipboards and leaflets.”
2
The majority claims that the state court decisions approving content-
neutral restrictions on expressive activity do not include the right to
exclude. California courts have repeatedly stated that unprotected interfer-
ence with the operation of commercial property may result in expulsion.
See In re Hoffman, 434 P.2d at 357 (stating that “[h]ad petitioners in any
way interfered with the conduct of the railroad business, they could legiti-
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11607
includes an “interest in controlling litter and traffic,” Savage
v. Trammel Crow Co., Inc., 273 Cal. Rptr. 302, 307 (Ct. App.
1990), and consideration of “whether the number and/or size
of signs, posters or placards will interfere with and/or directly
compete with business displays or logos.” H-CHH Assocs v.
Citizens for Representative Gov’t, 238 Cal. Rptr. 841, 856
(Ct. App. 1987) (“H-CHH”) disapproved on other grounds by
Fashion Valley Mall, 172 P.3d at 754 n.12. Under California
law, “the requirement of narrow tailoring is satisfied ‘so long
as the . . . regulation promotes a substantial government inter-
est that would be achieved less effectively absent the regula-
tion.’ ” Savage, 273 Cal. Rptr. at 307 (quoting Albertini, 472
U.S. at 689).
In this case, restricting the union members from wearing
signs or carrying pickets promotes Macerich’s substantial
interest in making sure that protesters do not block access to
stores or the sight-lines for store displays or impede foot traf-
fic. That interest “would be achieved less effectively absent
the regulation.” Id. As already noted, California courts have
stated that commercial property owners may “consider[ ]
whether the number and/or size of signs, posters or placards
will interfere with and/or directly compete with business dis-
plays or logos.” H-CHH Assocs, 238 Cal. Rptr. at 856.
The majority concludes that the ban on wearing or carrying
signs does not leave open ample alternatives for communica-
tion, speculating about the adequacy of various alternatives
including Macerich’s allowance of two signs attached to a
table. The Supreme Court, however, requires us to give defer-
mately have been asked to leave”; Slauson P’ship v. Ochoa, 5 Cal. Rptr.
3d 668, 686 (Ct. App. 2003) (stating “our analysis starts with the fact that
because the Mall is private property, Slauson did have the right to exclude
persons from entering the Mall, and persons who entered the property
without its permission were trespassing.”); Albertson’s, Inc. v. Young, 131
Cal. Rptr. 2d 721, 738 (Ct. App. 2003) (noting failure to comply with rules
triggers the owner’s right to stop the activity).
11608 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
ence to reasonable determinations that substantial interests are
best served by the restriction at issue. See Ward, 491 U.S. at
799 (“The Court of Appeals erred in failing to defer to the
city’s reasonable determination that its interest in controlling
volume would be best served by requiring bandshell perform-
ers to utilize the city’s sound technician.”).3 In fact, the Court
has stated that the “less restrictive-alternative analysis has
never been part of the inquiry into the validity of a time,
place, and manner regulation.” Ward, 491 U.S. at 787 (inter-
nal quotations and citations omitted). The Court went on to
conclude that it is error to “sift[ ] through all the available or
imagined alternative means of regulating [activity] in order to
determine whether the city’s solution was ‘the least intrusive
means’ of achieving the desired end.”4 Id.The proper analysis is whether Macerich’s rules “foreclose
an entire medium of public expression across the landscape of
a particular community or setting.” Menotti v. City of Seattle,
3
Indeed, the Supreme Court has repeatedly admonished lower courts not
to use the “ample alternative channels” requirement as a means of over-
turning regulations. See Ward, 491 U.S. at 799 (reversing because “[t]he
alternative regulatory methods hypothesized by the Court of Appeals
reflect nothing more than a disagreement with the city over how much
control of volume is appropriate or how that level of control is to be
achieved”); Albertini, 472 U.S. at 689 (“The validity of [time, place, or
manner] regulations does not turn on a judge’s agreement with the respon-
sible decisionmaker concerning the most appropriate method for promot-
ing significant government interests”); Clark, 468 U.S. at 299 (“The Court
of Appeals’ suggestions . . . represent no more than a disagreement with
the Park Service over how much protection the core parks require or how
an acceptable level of preservation is to be attained. We do not believe,
however, that either United States v. O’Brien or the time, place, or manner
decisions assign to the judiciary the authority to replace the Park Service
as the manager of the Nation’s parks or endow the judiciary with the com-
petence to judge how much protection of park lands is wise and how that
level of conservation is to be attained.”).
4
To the extent that the majority analyzes “numerous and less burden-
some alternatives” to Macerich’s regulations to conclude they were not
narrowly tailored, this is an improper least-restrictive means analysis. See
Ward, 491 U.S. at 787.
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11609
409 F.3d 1113, 1138 (9th Cir. 2005) (quotations omitted). “In
the ‘ample alternatives’ context, the Supreme Court has made
clear that the First Amendment requires only that the govern-
ment refrain from denying a ‘reasonable opportunity’ for
communication.” Id. at 1141 (citing City of Renton v. Play-
time Theatres, Inc., 475 U.S. 41, 54 (1986)). Foreclosing one
narrow form of expression while allowing “myriad and
diverse” alternatives for reaching the intended audience does
not violate the First Amendment. One World One Family Now
v. City & Cty of Honolulu, 76 F.3d 1009, 1014 (9th Cir.
1996).
The majority assumes that picketing includes the right to
wear or carry signs. The Board, however, has noted that
“picketing does not require the holding of a sign.” Laborers
Int’l Union of N. Am., 287 NLRB 570, 573 (1987) (citing
United Mine Workers of Am., District 12, 177 NLRB 213, 218
(1969)). I cannot find any authority that defines picketing to
necessarily include the carrying or wearing of signs. See
Frisby, 487 U.S. at 483 (noting ordinance stated that pickets
“need not be carrying a sign”). Macerich’s rule forbidding the
wearing or carrying of signs did not ban “picketing.”5 Indeed,
I conclude that Macerich’s rule foreclosed only one method
of “picketing” and did not categorically deny the unions of
their ability to express their dissatisfaction with the use of
non-union labor.
Macerich’s rules left open ample alternative means for the
unions to communicate their message to the mall patrons. The
5
There is no absolute right to picket. See Frisby, 487 U.S. at 486-87(noting that picketing can be offensive and intrusive). The passage from
the California Supreme Court’s decision in Fashion Valley Mall cited in
support of a broader picketing right concerned content-based restrictions
on picketing activity, not a content-neutral restriction. See Fashion Valley
Mall, 172 P.3d at 748 (discussing Diamond v. Bland, 477 P.2d 733, 741
(Cal. 1970), which invalidated a rule that “all activity apart from regu-
lated, mutually beneficial business promotions and displays, whether by
tenants or strangers, is forbidden on the premises of the Center”).
11610 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
union could have used a table with two signs staffed by mem-
bers, and Macerich’s rules allowed union members to carry
clipboards and leaflets with additional information for mall
patrons. The majority mentions that Local 586 representatives
went to Arden Fair Mall wearing shirts that said “Do Not
Patronize Arden Fair Mall — Unfair to Carpenters,” but fails
to note that there is no evidence that Arden Fair Mall ejected
the union representatives for wearing those shirts. Union
members were free to wear or carry signs on the public side-
walks surrounding the malls’ parking lots. The union had
“myriad and diverse” alternatives for communicating their
messages to mall patrons.
As the majority acknowledges, under California law, “the
adequacy of alternative channels is not measured by the fond-
est hopes of those who wish to disseminate ideas.” Savage,
273 Cal. Rptr. at 308 (citing Clark, 468 U.S. at 295).
Although no California case has expressly approved of a rule
banning the wearing or carrying of signs, an intermediate
court has noted that commercial establishments are free to
establish restrictions on the size and number of signs, plac-
ards, and posters. H-CHH Assocs, 238 Cal. Rptr. at 856. Thus,
the California cases indicate that the California Supreme
Court would uphold a commercial property owner’s right to
ban the wearing or carrying signs, placards, or posters as nar-
rowly tailored and leaving ample alternative channels for
communication and deny the petition. See Calkins, 187 F.3d
at 1089 (discussing how to interpret state law).
C. The designated areas rule and the peak days restriction
have been expressly approved by California courts.
In In re Hoffman, 434 P.2d at 358, the California Supreme
Court stated:
Reasonable and objective limitations can be placed
on the number of persons who can be present for
First Amendment activities at the same time, and the
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11611
persons present can be required so to place them-
selves as to limit disruption. In areas normally sub-
ject to congestion, such as ticket windows and
turnstiles, First Amendment activities can be prohib-
ited. Persons can be excluded entirely from areas
where their presence would threaten personal danger
or block the flow of passenger or carrier traffic, such
as doorways and loading areas.
In Union of Needletrades, Indus. & Textile Employees v.
Superior Court, 65 Cal. Rptr. 2d 838, 847 (Ct. App. 1997)
(“UNITE”), a California Court of Appeal held that “a shop-
ping center is constitutionally empowered to enact a rule lim-
iting expressive activities to a particular area.” The union
wanted to distribute leaflets outside of Guess?, Inc. stores
located in six different malls instead of in the designated areas
provided by the shopping centers. Id. at 847-48. The state
appellate court rejected the union’s “most effective point of
persuasion” argument, concluding that the California
Supreme Court’s decision in Pruneyard, 592 P.2d at 347,
approving of time, place, and manner restrictions “to assure
that these activities do not interfere with normal business
operations” allowed the restriction of nonemployee union pro-
testers to designated areas of the shopping center.6 UNITE, 65
Cal. Rptr. 2d at 849. The state court concluded that “a center
can impose reasonable and objective limitations on the num-
ber of persons who can be present and those persons can be
required to be in an area so as to limit disruption.” Id. at 848.
As a result, the state appellate court held that several rules,
including rules restricting petitioning activity to two desig-
6
Although under the First Amendment the nature of the message may
create a stronger interest in the symbolic location of the activity and the
ability to reach a specific audience, see Galvin v. Hay, 374 F.3d 739, 747-
52 (9th Cir. 2004), California has not given additional protection to sym-
bolic locations or more specific audiences (as opposed to mall patrons in
general) to expressive activity on private commercial property. See
UNITE, 65 Cal. Rptr. 2d at 849 n.4 (rejecting the most effective point of
persuasion argument).
11612 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
nated areas in the malls, were valid time, place, and manner
restrictions under California law. Id. at 848-49.
This case is no different, and if the restriction of petitioning
activity to two designated areas is acceptable under California
law, the NLRB must follow California law.7 Lechmere, 502
U.S. at 538. California courts have balanced the expressive
rights of unions under the California Constitution against
property owners’ rights under state property law. This is a
question of state law that we are not free to reject. West v.
AT&T, 311 U.S. 223, 236 (1940) (“[T]he highest court of the
state is the final arbiter of what is state law. When it has spo-
ken, its pronouncement is to be accepted by federal courts as
defining state law. . . .”); see also Calkins, 187 F.3d at 1095(noting that if California provides additional protection, it
does so by modifying state property law).
The majority’s reliance on the unavailability of the side-
walks and entrances immediately outside the stores to con-
clude that Macerich’s restrictions are not narrowly tailored is
also not supported by California law. See Lushbaugh v. Home
Depot U.S.A., 113 Cal. Rptr. 2d 700, 707 (Ct. App. 2001)
(noting designated areas may be located away from motorized
traffic, foot traffic, and entrances).8 Furthermore, California
courts have concluded that the additional protection of speech
in shopping malls under state law does not include a right to
conduct activity at the most effective point of persuasion.
UNITE, 65 Cal. Rptr. at 849 n.4 (collecting cases). The Board
properly relied on UNITE in its decision; therefore, the
7
To the extent the majority once again engages in an analysis of poten-
tial alternative regulations and relies upon the existence of less restrictive
means to invalidate the restriction, their reasoning is improper under
Supreme Court precedent. See Ward, 491 U.S. at 787; Albertini, 472 U.S.
at 689.
8
The California appellate court in Lushbaugh specifically cited to Xiloj-
Itzep v. City of Agoura Hills, 29 Cal. Rptr. 2d 879, 889-90 (Ct. App.
1994), which applied the narrowly tailored test in upholding a ban on
vehicle-addressed solicitation.
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11613
Board’s decision is “rational and consistent” with California
law.9 Calkins, 187 F.3d at 1085.
Similarly, California courts have upheld so-called “peak
days” restrictions in H-CHH, 238 Cal. Rptr. at 858 (approving
of ban on heavy traffic days if the dates are set forth in writ-
ing); UNITE, 65 Cal. Rptr. 2d at 850 (approving of “holiday
blackout periods” ranging from 25 specific days to the period
between the weekend before Thanksgiving through January 2
of the next year); and Costco Cos., Inc. v. Don Gallant, 117
Cal. Rptr. 2d 344, 353-54 (Ct. App. 2002) (affirming restric-
tions on expressive activity on 34 busiest days). Indeed,
Macerich’s rule restricting expressive activity on 30 peak
business days, accompanied by the list of unavailable dates,
is more lenient than the restriction approved by the state court
in Costco Cos, Inc. by four (4) days. In UNITE, the state
appellate court approved restrictions on expressive activity
spanning between the weekend before Thanksgiving through
January 2nd, a period of forty-two (42) days. Accordingly, the
Supreme Court’s opinion in Lechmere, 502 U.S. at 535, as
well as our own precedents, mandate that we accept state law
and uphold the Board’s determination that Macerich’s peak
days limitations are a valid time, place, and manner regula-
tions.
The majority attempts to distinguish the California cases by
stating that they do not discuss whether the rules are narrowly
tailored. Both UNITE and H-CHH contain numerous citations
to In re Hoffman, Savage, and other California cases specifi-
cally applying intermediate scrutiny to time, place, and man-
9
The majority states that Macerich did not show that the demonstration
violated a fire code. The Board specifically found that the designated area
rule “assists the Respondent with complying with local fire codes.” The
malls introduced evidence that local fire codes required eight to ten foot
clearances around entrances, and that the sidewalks were not sufficiently
large to accommodate those clearances. I am unable to locate any author-
ity requiring that Macerich establish a fire code violation before the fire
code can be a substantial interest under the narrowly tailored test.
11614 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
ner restrictions. In fact, UNITE specifically refers to other
portions of the days limitations under a “content neutral”
analysis as being “narrowly drawn” and then approves the
blackout periods as “[e]qually appropriate” under California
law. UNITE, 65 Cal. Rptr. 2d at 850. It is clear that the Cali-
fornia courts in UNITE and H-CHH were applying intermedi-
ate scrutiny to content-neutral restrictions. We are not free to
ignore clear state law precedents simply because their analysis
was not as explicit as we would like. Even if UNITE and H-
CHH fail to discuss intermediate scrutiny with sufficient clar-
ity, the majority completely ignores the state court’s analysis
in Costco that:
Costco’s regulation is narrowly tailored because it
protects Costco’s substantial interests in the smooth
operation of its stores on those days, which represent
less than 10 percent of a calendar year, when those
legitimate interests are most vulnerable to the disrup-
tion which expressive activity has from time to time
engendered at Costco’s stores. Because the 34-day
ban is content neutral and leaves more than 300
other days during the calendar year in which expres-
sive activity is permitted, it satisfies the remaining
requirements of a valid regulation of time, place, and
manner.
117 Cal. Rptr. 2d at 354.
We are bound by a state court’s interpretation of state law
when reviewing the NLRB’s determination of whether there
has been a violation of section 8(a)(1) of the NLRA when the
NLRB must balance section 7 expressive rights against state
property rights. Thunder Basin Coal Co., 510 U.S. at 217
n.21; Glendale Assocs, 347 F.3d at 1152; Calkins, 187 F.3d
at 1088. We may not substitute our interpretations of Califor-
nia law for that of the California courts of appeal. See Hicks
v. Feiock, 485 U.S. 624, 629-30, 630 n.3 (1988) (noting state
appellate court’s determination of state law is binding and
UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11615
must be given deference). “[O]nly state courts may authorita-
tively construe state statutes.” BMW of N. Am., Inc. v. Gore,
517 U.S. 559, 577 (1996). “In the absence of convincing evi-
dence that the state supreme court would decide differently,
‘a federal court is obligated to follow the decisions of the
state’s intermediate courts.’ ” Easyriders Freedom F.I.G.H.T.
v. Hannigan, 92 F.3d 1486, 1494 n.4 (9th Cir. 1996) (quoting
In re Kirkland, 915 F.2d 1236, 1239 (9th Cir. 1990)). The
majority’s opinion fails to give deference to state law, and
appears to misuse the requirement of ample alternative chan-
nels to conduct a least-restrictive means analysis to invalidate
content-neutral rules. In doing so, the majority disregards
state cases approving the types of content-neutral restrictions
Macerich imposed on expression for its malls, disapproves of
the Board’s proper reliance on state law, and attempts to
create expressive rights under California law at the expense of
state property rights.
Accordingly, I dissent.