Lead Opinion
OPINION
Before this court is an appeal from a decision by a divided National Labor Relations Board (“NLRB”) involving handbill-ing by union members in the mall, owned and operated by Sandusky Mall Company (“Sandusky”).
Sandusky is a private, limited partnership that owns and operates Sandusky Mall (“mall”), an enclosed mall in San-dusky, Ohio. The mall contains ninety-six stores and a central concourse, which provides access to the stores, and within the concourse are places to sit and also space leased for booths. The mall manager is responsible for enforcing Sandusky’s policy against handbilling and solicitation of mall customers.
The mall driveways, however, are posted with signs which read “soliciting and posting of bills prohibited.” One of those signs is on the driveway in front of the Sears store at one end of the mall, and the Attivo location, now in controversy, is near Sears and its mall entrance. The mall entrance was posted with “no soliciting” signs.
In November, 1991, intervenor Northeast Ohio District Council of Carpenters, United Brotherhood of Carpenters & Joiners of America, AFL-CIO (“union”) learned that a mall tenant, Attivo, hired a non-union construction contractor, R.E. Crawford Construction Co. (“Crawford”), to renovate its store. In November and December, the union distributed handbills urging mall customers not to patronize Attivo because of its hiring of a non-union contractor, which the union contended had undermined local wage standards.
The union then promptly filed an unfair labor practice charge against Sandusky, and on January 29,1993, the NLRB’s General Counsel issued, and later amended, a complaint alleging that Sandusky had violated § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1). The parties agreed to waive a heаring before an administrative law judge (“ALJ”) and transfer the case to the Board itself for a decision on stipulated facts. The Board accepted the stipulated record and motion to transfer the case to the Board for decision. Nearly four years later, the Board found that Sandusky violated the Act and issued its decision. San-dusky filed a timely petition for review, and the Board filed a cross-application for enforcement. This court granted the union’s motion to intervene in this controversy-
In addition to filing the complaint on January 29, 1993, the Regional Director of the NLRB notified Sandusky by letter to cease the trespass prosecution against union representatives within seven days. Very promptly Sandusky informed the Regional Director and the clerk of the court in which the prosecution was pending that it would not take any further action in the trespass prosecution unless this case were resolved in its favor. Later, the local court dismissed both trespass charges against the union representatives and, at their request, sealed the record without opposition by Sandusky.
The specific issue before this court is whether Sandusky may be compelled to permit non-employee union members to trespass on the mail’s property for the purpose of distributing handbills urging mall customers not to patronize non-union employers. This issue is a difficult one, but it is not one of first impression. We addressed precisely that issue in Cleveland Real Estate Partners v. NLRB,
I. EFFECT OF CLEVELAND REAL ESTATE PARTNERS
We are normally bound by the precedent established by a decision on a particular issue by a prior panel of our court. The Board majority, at best, inferentially acknowlеdged its burden to persuade us to deny the efficacy of Cleveland Real Estate Partners by stating:
We are mindful that the United States Court of Appeals for the Sixth Circuit, in which this case arises, has rejected the Board’s interpretation of “discrimination” as used in Babcock & Wilcox.3 In Cleveland Real Estate Partners, the Board adopted the administrative law judge’s finding that the employer dis-criminatorily prohibited nonemployee union representatives from distributing handbills directed at shoppers to discourage them from patronizing a nonunion retailer in the mall because it permitted nonlabor related handbilling and solicitations by others in the mall. The Sixth Circuit denied enforcеment of the Board’s order, holding that, post-Lechmere,4 “discrimination” as used in Babcock & Wilcox, “means favoring one union over another, or allowing employ-’ er-related information while barring*686 similar union-related information.” We respectfully disagree with the Sixth Circuit’s conclusion and adhere to our view that an employer that denies a union access while regularly allowing nonunion organizations to solicit and distribute on its property unlawfully discriminates against union solicitation.
Sandusky Mall Co., 329 N.L.R.B. No. 62 (Sept. 30, 1999) (footnotes and citations omitted).
The discrimination to which the Board refers is the so-called “discrimination exception” to the gеneral rule as explained by the Supreme Court in NLRB v. Babcock & Wilcox,
“[A]n employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message, and if the employer’s notice or order does not discriminate against the union by allowing other distribution.”
In Cleveland Real Estate Partners we rejected the Board’s contention about the meaning of this exception, stating:
The Board’s understanding of Bab-cock’s discrimination principle is well-exemplified by Be-Lo Stores, 318 N.L.R.B. No. 1 (1995), where the Board held that the occasional presence of “Muslims selling oils and incense,” “an ‘occasional’ Jehovah’s Witness distri-but[ing] the Watchtower magazine,” and “on one occasion a local Lions Club solicitation],” demonstrated discriminatory enforcement of a no-solicitation rule when the employer denied access to a union. Accord Dow Jones & Co., 318 N.L.R.B. No. 59 (1995). We think the Board has misinterpreted Babcock.
Babcock and its progeny, which -weigh heavily in favor of private property rights, indicate that the Court could not have meant to give the word “discrimination” the import the Board has chosen to give it. To discriminate in the enforcement of a no-solicitation рolicy cannot mean that an employer commits an unfair labor practice if it allows the Girl Scouts to sell cookies, but is shielded from the effect of the Act if it prohibits them from doing so. Cf. Guardian Indus. Corp. v. NLRB,49 F.3d 317 , 320-22 (7th Cir.1995). Although the Court has never clarified the meaning of the term, and we have found no published court of appeals cases addressing the significance of “discrimination” in this context, we hold that the term “discrimination” as used in Babcock means favoring one union over another, or allowing employer-related information while barring similar union-related information.
Although we are respectful of thе Board’s interpretation, we are not compelled to follow it when it rests on erroneous legal foundations. See Lechmere,502 U.S. at 539 ,112 S.Ct. at 849 .
Cleveland Real Estate Partners,
The Be-Lo Stores NLRB decision, above referred to and involving this same issue, was reversed by the Fourth Circuit at
[T]he Fourth Circuit found that the few solicitations that occurred at the employer’s over 30 stores in the past year and a half were only “isolated and sporadic” and did not establish disparate enforcement of the employer’s no-solicitation policy. In dicta, the court noted its “doubt” that, post -Lechmere, the Bab-cock & Wilcox discrimination treatment exception applies to nonemployees who do not propose to engage in organizational activities and that an employer’s approval of limited charitable or civic distribution while excluding union distribution constitutes discrimination.
In addition to Cleveland Real Estate Partners and Be-Lo Stores, the Board majority in this case acknowledges that in Guard
[T]he Seventh Circuit held that an employer had not unlawfully discriminated against union solicitation where the employer allowed only “swap and shop” notices to be posted on its bulletin board and refused to allow the posting of notice of union meetings as inconsistent with its policy. The court found that the Board had failed to establish in what sense it might be discriminatory to distinguish between for-sale notes and meeting announcements.
The facts in Cleveland Real Estate Partners are very similar to those in the instant controversy. Union handbillers campaigned in a private mall against a mall shop owner for employing nonunion workers. The handbillers were instructed to leave because of the mall no-solicitation rule. The mall owner threatened police action if the non-employee union handbil-lers did not desist. The union filed unfair labor practice charges against the mall and the Board sustained thе charges. We described the underlying NLRB decision in Cleveland Real Estate Partners:
The NLRB held that the handbilling in this case was “protected activity” under section 7 of the Act and that by excluding the handbilling by union representatives, but permitting solicitation and handbilling if various kinds by others such as the Girl Scouts, the Knights of Columbus, political candidates, and school children selling candy, the mall owner, through its managing agent, unlawfully discriminated against the union within the meaning of the rule announced in N.L.R.B. v. Babcock,351 U.S. 105 ,76 S.Ct. 679 ,100 L.Ed. 975 .
Cleveland Real Estate Partners reversed the Board after analyzing Babcock and Lechmere, Inc. v. NLRB,
Cleveland Real Estate Partners interpreted Lechmere “in light of the Supreme Court’s earlier decision in Babcock."
After reviewing its holding in Babcock, the Supreme Court stated:
Babcock’s teaching is straightforward: § 7 simply does not protect nonemployee union organizers except in the rare case where “the inaccessibility of employees makes ineffective*688 the reasonable attempts by nonem-ployees to communicate with them through the usual channels[.]” Where reasonable alternative means of access exist, § 7’s guarantees do not authorize trespasses by nonem-ployee organizers, even ... “under ... reasonable regulations” established by thе Board.
Lechmere,502 U.S. at 537 ,112 S.Ct. at 847-48 (quoting Babcock,351 U.S. at 112 ,76 S.Ct. at 684 ).
“While Babcock indicates that an employer may not always bar nonemployee union organizers from his property, his right to do so remains the general Rule. To gain access, the union has the burden of showing that no other reasonable means of communicating its organizational message to the employees exists or that the employer’s access rules discriminate against union solicitation. That the burden imposed on the union is a heavy one is evidenced by the fact that the balance struck by the Board and the courts under the Babcock accommodation principle has rarely been in favor of trespassory organizational activity.”
Lechmere,
Lechmere concluded that “we judge an agency’s later interpretation of the statute against our prior determination of the statute’s meaning.”
Cleveland Real Estate Partners, relying on Lechmere, cited the principles above set out. It also relied upon United Food & Commercial Workers AFL-CIO, Local No. 880 v. NLRB,
An owner of private commercial property who permits a charitable organization to distribute information or conduct solicitations on its property simply does not implicate the policies of the NLRA and does not, without more, render an employee guilty of an unfair labor practice when later it chooses to follow the general rule of “validly posting its] property against nonemployee distribution of union literature.” Babcock,351 U.S. at 112 ,76 S.Ct. at 684 .
II. THE BOARD DECISION
Confronted with the firm policy of this court in Cleveland Real Estate Partners,
The Board’s decision cites Riesbeck Food Markets v. NLRB,
On the question of the deference due the Board’s decision and interpretation of the statute, the Board cited NLRB v. Webcor Packaging, Inc.,
We deem the views expressed by the dissenters to the Board’s decision, including reliance upon Cleveland Real Estate Partners, to be persuasive. We agree particularly with the following assessment by dissenting Board member Brame of the Board’s interpretation of the “discrimination exception” to the general rule permitting a mall owner to exclude nonemployee union handbillers.
[T]he parameters of the Board’s application of the so-called “discrimination exception” first articulated in NLRB v. Babcock & Wilcox are so vague that the Board too must rеsort to subjective, “I know it when I see it” criteria to decide whether its requirements have been met, thus leaving employers without fair notice of what they may lawfully do.
329 N.L.R.B. No. 62 (Brame, dissenting) (footnote omitted). This dissenter also noted that Sandusky’s no-solicitation rule was issued “[i]n response to the Supreme Court’s decision in Lechmere.” Id. at n. 2. The dissenter also pointed out how this policy was carried out:
*690 Under this policy, the Respondent requires that organizations seeking access to the mall obtain permission and sign a temporary display agreement. The Respondent approves оrganizations which, in its business judgment, enhance the public image of the mall and provide service to the community. In considering applications for access, the Respondent also looks to whether the Respondent is likely to receive an economic benefit, such as rent, “good will,” or increased customer traffic, whether the activity is consistent with the commercial retail purpose of the mall, whether the activity conflicts with the business of a mall tenant and whether the activity concerns or would generate controversy.
Under its policy, the Resрondent admittedly permitted a variety of charitable, civic, and even commercial organizations to enter the mall for solicitation, displays, and presentations.
In sum, the Board dissent also stated its interpretation of relevant Supreme Court precedent on the issue before it, including particularly Lechmere:
While acknowledging that nonemployee union agents nonetheless have some, albeit, extremely limited rights to solicit on private property, the Court faulted the Board for “failing to make the critical distinction between the organizing activities of emрloyees (to whom Section 7 guarantees the right of self organization) and nonemployees (to whom Section 7 applies only derivatively).” The Court then explained that presumptively an employer cannot be compelled to allow distribution of literature by nonem-ployee organizers on his property while noting that the presumption might be rebutted if, consistent with the Court’s earlier decision in Babcock and Wilcox, supra, the employees are otherwise inaccessible. The Lechmere Court stressed that “Babcock’s rule is a narrow one. It does not apply whenever non trespassory access to employees may be cumbersome оr less-than-ideally effective ....” In reversing the Board’s holding, the Supreme Court also rejected the Board’s application of its decision in Jean Country. ...
(Footnotes omitted). Finally, as did this court in Cleveland Real Estate Partners, dissenter Brame insist1d, we believe correctly, that alleged “discriminatory” conduct in allowing solicitation on handbilling required that “discrimination be among comparable groups or activities,” and that the activities themselves under consideration must be “comparable.” In support of his opinion, this dissenter cited Perry Education Ass’n v. Perry Local Educators Ass’n,
[T]he Board must ask what is the nature of the conduct for which access is sought and what effect would this type of conduct reasonably be expected to have? Certainly, employers must be able to make distinctions based on the time, place, and 'means of solicitation to the extent that mall business may be negatively affected by one and not another. For example, outside solicitors from an organization sitting quietly at a table in a remote section of the mall would likely have a far different impact than if they were distributing handbills while roaming the common areas or picketing within the mall.
III. EFFECT OF HOLLY FARMS
Holly Farms Corp. v. NLRB,
IV. THE BOARD AND UNION ARGUMENT
In sum, the Board argues in its brief that Cleveland Real Estate Partners “is no longer controlling authority.” Why? Because Cleveland Real Estate Partners “applied an improper standard of review”; that is, it did not accept as controlling the Board’s interpretation of Supreme Court (and Sixth Circuit) precedent on the so-called “discrimination exception.” The Board proceeded to devote much of its brief to its interpretation of Supreme Court precedent on the issues, particularly Babcock & Wilcox and Lechmere, arguing first that “[t]he fact that union representatives acting on bеhalf of the employees whose wages and benefits were threatened, rather than the employees themselves, were seeking to distribute handbills here should not affect the outcome.”
In its brief arguing the meaning of judicial decisions dealing with the issues before us, the Board cites O’Neil’s Markets v. United Food & Commercial Workers’ Union, Meatcutters Local 88, AFL-CIO, CLC,
The Board acknowledges in its brief, moreover, that Great Scot holds that non-employee area-standards picketing warrants even less protection than nonemploy-ee organizational activity under Section 7 because it is “a right even more ‘peripherаl.’ ”
We also note that Sparks Nugget, Inc. v. NLRB,
The Board also citеs, in its attenuated argument in its brief dealing with the discrimination exception, Davis Supermarkets, Inc. v. NLRB
The Board asks us to ignore or to overrule Cleveland Real Estate Partners, but our firm, fixed rule is that one panel of the court cannot overrule a prior precedential holding. E.g., United States v. Smith,
Cleveland Real Estate Partners is controlling precedential authority, but if it were not, we would adhere to Sandusky’s rationale that the union has demonstrated no handbilling right under the circumstances here. Even if the discrimination exception were relevant in this case, we would not construe it in this case, as urged by the Board, because the conduct of the nonemployee union handbillers is not similar conduct to that of civil and charitable organizations who obtained permission from Sandusky to use the mall in a limited way deemed beneficial.
Most of the case authority cited by the Board, in our view, is irrelevant, only peripherally related to the issue in this case, or is generally supportive of Sandusky’s argument. We conclude that the Board’s interpretation of the law under the stipulated facts is not reasonable nor is it persuasive.
This case does not involve organizational rights; it does not involve employee picketing or handbilling, and if Sandusky is deemed to be an emрloyer, it has not encouraged or allowed handbilling by persons similarly situated to the union organizers in this case.
Accordingly, we decline to enforce the order of the Board and we REVERSE its determination.
Notes
. Sandusky maintains a policy "not to permit any soliciting (except occupants strictly in accordance with their prior written agreement with the Shopping Center), handbilling, leaf-letting, picketing, or patrolling (collectively called 'solicitation') by any persons on the privately owned property of the Shopping Center.... All Persons engaging in such solicitation will be asked to leave the Shopping Center property and, if they refuse, may be arrested for criminal trespass.”
. The handbill asked the "general public” not to patronize Attivo "because they are undermining construction wage and benefit standards in this area by employing Crawford.”
. NLRB v. Babcock & Wilcox Co.,
. Lechmere, Inc. v. NLRB,
. Lechmere, Inc. v. NLRB,
. Lechmere noted that the Court gauges and weighs an agency determination of a statute against its own prior interpretation: "Once we have determined a statute's clear meaning, we adhere to that determination under the doctrine of stare decisis, and we judge an agency's later interpretation of the statute against our prior determination of the statute's meaning.” Lechmere, 502 U .S. at 536, 537,
. Nor do we find Restaurant Corp. of America v. NLRB,
Concurrence Opinion
concurring.
I concur in the majority opinion. I write separately to highlight what, in my view, is the crucial issue in this case, namely, what level of deference this court should afford the NLRB when it interprets Supreme Court precedent. In order to accept the Board’s arguments, one must first accept the premise that Holly Farms governs that issue. This is not the case. Holly Fams speaks only to the level of deference due to the Board’s interpretation of the NLRA; it does not address the deference due to the Board’s interpretation of judicially created exceptions. Accordingly, we review the NLRB’s interpretation of the Babcock exception de novo.
In Cleveland Real Estate Partners, this circuit squarely addressed the question of whether the Babcock discrimination exception requires an employer to suffer non-
Accordingly, I concur with the conclusion that this court should be guided by our decision in Cleveland Real Estate Partners, but emphasize that Holly Farms is simply inapplicable to any case that involves interpretation of court decisions.