United Brotherhood of Carpenters & Joiners of America Local 586 v. National Labor Relations Board

Management Company; itself, Macerich the INA try” times within numerous Property Management Macerich the term have must construe and we Respondents. Company, it is used in the meaning each time same States, 544 v. United Pasquantino Act. See Management Company; Macerich 358-59, 125 S.Ct. U.S. Property Management (2005) (“To these same give Petitioners, Company, catego- each meaning for words a different Carpenters United Brotherhood rather than ry be to invent a statute would 586; Joiners of America Local United omitted). one”) (citation interpret Carpenters and Join Brotherhood we owe Because deference 505, Intervenors, ers of America Local determining first in its role BIA v. pre-independent Ukraine instance whether National Labor Relations “country,” see Chevron qualifies as Respondent. Board, Council, U.S.A., Inc. v. Res. Natural Def. 837, 842-45, Inc., U.S. Shopping Council of Cen International (1984), Dzyu- we remand 81 L.Ed.2d Proper ters California Business what to the BIA to determine petition Association; ba’s ties California Labor Federation, it used the term meant when Amicus Curiae. Congress context. See “country” the removal 05-75295, 05-76217, Nos. 05-77116. Thomas, v. Gonzales Appeals, United States Court of (holding 164 L.Ed.2d 358 Ninth Circuit. remedy appropriate was remand Argued and Submitted Oct. 2007. yet wheth- BIA had determined where Aug. 25, Filed “family” “social er a could constitute meaning of 8 within U.S.C. group” As Corrected Oct. 1101(a)(42)(A)). § AND REMANDED.

VACATED OF

UNITED BROTHERHOOD CAR OF

PENTERS AND JOINERS 586;

AMERICA LOCAL United Carpenters and Join

Brotherhood 505, Petitioners, America Local

ers of RELATIONS

NATIONAL LABOR

BOARD, Respondent. Relations

National Labor

Board, Petitioner, Carpenters and

United Brotherhood of 586; of America Local United

Joiners Carpenters and Join

Brotherhood 505, Intervenors, America Local

ers of

Opinion Judge THOMAS; Partial Partial Judge Concurrence and Dissent CALLAHAN.

THOMAS, Judge: Circuit This petitiоn presents review question of whether six restrictions on ex- pressive activity promulgated and enforced by two infringe malls on the speech rights guaranteed by free State Constitution and Rosenfeld, Caren P. Sencer and David protected therefore interfere with union Rosenfeld, Roger Alameda, & Weinberg activity in violation of the National Labor CA, petitioners for United Brotherhood of (“NLRA”) applied Relations Act when America, Carpenters and Joiners of Local union picketing handbilling and actions. of Carpenters United Brotherhood We hold that the six impermissibly rules America, and Joiners of Local and infringe speech rights unlawfully free and United Carpenters Brotherhood of and activity. interfere with protected union Joiners of America. Leanse, Stacey J. Thomas McKee I Knight, Rosenman, LLP, Katten Muchin CA, Los Angeles, respondents for Mace- Management Company Macerich and rich Management and Company Macerich Property Management Company Management Property Company. “Macerich”) (collectively operate as the Dreeben, Habenstreit, managing agents Linda Mall David Arden Fair and Jo- Norelli, (“the seph Walta, P. Capitola Malls”), and Jason respectively. Wash- Mall DC, ington, for respondent enclosed, National The privately-owned Malls are Labor Relations Board. Sacramento, shopping centers located in California, Mоnica, Santa and California. Bernhard, Sacramento, CA, Jo Anne Macerich promulgated a “Rules list of amicus curiae International Council of Public Use of Common that regu- Areas” Shopping Centers and California Business late expressive activity in each mall. Properties Association. Among these rules are the six issue Carroll, Scully, Inc., Donald C. Carroll & here: Francisco, CA, San for amicus curiae Cali- (“identification ban”): Rule 1 a ban on fornia Labor Federation. identify by

activities that name the mall owner, manager, tenants; (“commercial rule”): Rule 2 purpose ban signage and written materials that interfere with the pur- “commercial mall; pose” of the ROTH,* Before: R. JANE SIDNEY R.

THOMAS, ban”): M. (“signage CONSUELO Rule 3 on the CALLAHAN, Judges. Circuit carrying wearing of signs; Roth, *The Jane sitting by Honorable R. Senior designation. United Circuit, Judge States Circuit for the Third 7, 2000, March United Brotherhood On requirement”): 4 (“application Rule requires America Lo- process Carpenters and Joiners of application materials; written representatives distributed hand- pre-submission cal rule”): Capitola Mall picketed pro- bills (“designated areas Rule 5 areas, including of a contractor to test use nonunion of exterior exclusion sidewalks, mall, areas designated in the and to mall new store build occur; activities expressive dispute. where area publicize an standards police after the arrived and picketers left rule”): subject prohi- they traffic сould be (“peak warned them Rule during later, activities bition of arrest. weeks Local citizen’s Two “peak days.” traffic representatives Capitola returned to again picketed the construction Mall and Macerich, pur- general According leave, they they refused to site. When safeguard the these rules is to pose of malls, placed arrest. On were under citizen’s provide commercial experi- May representatives shoppers Local pleasant with a Mall, ence, safety. protect shoppers’ again picketed Capitola this time the nonunion protesting use another 16, 1999, representatives December On representatives Four union contractor. Carpenters and of United Brotherhood of 586”) no instance did Local (“Local were arrested. In Local 586 Joiners of America complete application beforehand and the interior distributed handbills to the mall. pre-submit written materials of the Sears store exterior entrances Mall, the of a protest Arden Fair use (“the Unions”) and 505 each Locals 586 contractor to build a Sears store nonunion charges labor practices against filed unfair Roseville, in California. Local 586 did Macerich, vio- alleging Macerich had with the mall before- application file an 8(a)(1) NLRA, lated section the hand, the nor did it submit handbills 158(a)(1), by unlawfully § U.S.C. restrict- representa- a union pre-screening, bеcause activities, the un- Unions’ by an Arden Fair em- tive had been told lawfully threatening picketers union was unneces- ployee application that an arrest, picketers union unlaw- having and the sary. security guards informed Mall fully charges were consoli- arrested. The they tres- representatives union were into by dated the NLRB General Counsel if they arrested re- passing and would be had complaint alleging union on the When the premises. mained 8(a)(1) by maintaining six violated section leave, mall offi- representatives refused to unlawfully expres- interfere with rules that representa- and one police cials called activity, by ejecting repre- and union sive Later, a tive Local was arrested. engaging property sentatives from mall representative application, filled out an activity. protected in untimely, incomplete, which was denied A was Admin- hearing conducted before 21 and ambiguous. and On December Jay Pollack, Judge Law R. who istrative representatives Local went engaged concluded Macerich had said wearing Arden Fair Mall shirts that practices promulgating, unfair labor “Do Arden Fair Mall—Un- Not Patronize maintaining, enforcing and each of the Carpenters.” fair to challenged regulations por- numbering used Rela- are a National Labor 1. The small Board”) ("NLRB” complete opin- tion "Rules for Public Use or "the tions Board Areas,” and are not numbered con- Cоmmon ion. adopt secutively in those documents. rules, challenged ejecting union II representatives from mall for en- 7 of NLRA guarantees Section em- protected gaging activity. Macerich ployees unions, form labor decision, exceptions filed to ALJ Pollack’s bargain collectively, and “engage other and the Board’s General Counsel filed concerted for the of col- purpose activities cross-exceptions. bargaining lective other mutual aid.” 7,§ § NLRA 29 U.S.C. the NLRB issued a decision 8(a)(1) Section NLRA makes it an affirming part. ALJ Pollack’s decision in labor practice” employer “unfair for an “to Specifically, upheld Pol- Board ALJ with, restrain, employ interfere or coerce findings that the lack’s identification ban in the ees” exercise of their section 7 (Rules purpose commercial rule 8(a)(1), § rights. NLRA 29 U.S.C. 2) were unlawful re- content-based 158(a)(1). § the NLRA by While its terms strictions under California law. The rights only employees, confers the Unit upheld finding Board also ALJ Pollack’s ed States Court has determined 4) (Rule application requirement that the that it also an employer’s right restricts when applied was unlawful to ensure com- exclude nonemployee organizers union pliance with Rules 1 and 2. The Board Lechmere, the employer’s property. found, contrary further to ALJ Pollack’s NLRB, Inc. v. decision, ban, signage desig- 841, 117 (1992). rule, peak nated areas traffic rule (Rules Under 6) subsequent Lechmere and and were reasonable cases, rights of nonemployee union place, or manner restrictions under Cali- representatives employer’s to access an fornia petition law. Unions filed a private property are in based state law. (Case 05-75295), review No. arguing that Reich, Thunder Basin Co. Coal v. 5,3, unlawful; Rules and 6 are 200, 21, 771, 217 n. 127 L.Ed.2d (Case filed a petition for review OS- No. (1994). 29 Where state common law 77116), 1, 2, arguing that Rules 4 and are grants an employer right the to exclude permissible; and peti- the NLRB filed a nonemployee organizers union from its (Case tion for enforcement of its decision property, guarantees the NLRA access 05-76217). No. The Unions then filed a only if the employees union can show that motion to intervene in Case No. 05-77116. are otherwise orga inaccessible to union By 9, 2005, orders December Janu- and nizers, and employees’ section 7 ary we consolidated petitions the rights outweigh employer’s property the with review the Board’s application for Lechmere, 538, rights. 502 U.S. at 112 enforcement, granted and the mo- Unions’ 841. grants Where state law nonem tion grant to intervene. nowWe Un- ployee organizers union right access petition, grant ions’ part deny employer’s property, a violation of part the petition, Board’s and deny Mace- rights these state will also be a violation of petition. rich’s Assocs., the NLRA. Glendale Ltd. v. We review the Board’s decision to deter- NLRB, 1145, (9th Cir.2003). 347 F.3d 1153 mine whеther the Board’s findings of fact Thus, question of whether Macerich are supported by substantial evidence in engaged practices by unfair ‍​‌‌‌‌‌​‌​​‌‌​​‌​‌‌​‌‌​‌​​​​​‌​‌‌‌‌‌​​‌​​​‌​​‌​‌‌‍labor ex whole, the record as a and whether the cluding the representatives Unions’ turns correctly Board applied law. Health- on whether grants California state law un NLRB, Employees care v. Union F.3d representatives 463 ion pri to access 909, Cir.2006). mall property. vate law, impose malls Shopping not absolute. of state analyzing questions time, place, on the restrictions reasonable decisions of bound we are Id. at and manner activities. Glendale, F.3d highest court. state’s Bland, (citing Diamond 3 Cal.3d Supreme Court at The California (1970)). 653, Cal.Rptr. 477 P.2d 733 I, 2 of that article section has determined scrutiny which we review The level of protects Constitution California .ex speech activity on free de- a restriction including petitioning pressive activities— a con- on whether the restriction is pends privately- picketing . —conducted regulation of-the tent-neutral Valley centers. Fashion owned speech, or a content-based or manner NLRB, 42 Mall, LLC v. Cal.4th Id. 751. A content-neutral restriction. (2007) 172 P.3d .3d Cal.Rptr subjected is to intermediate restriction Pruneyard Shopping (citing Robins (1) scrutiny to determine whether Center, 23 Cal.3d (2) tailored, significant a serves (1979)). The Su 592 P.2d interest, open leaves government “pri held that preme repeatedly Court has ample alternative avenues of communica- fo public can constitute vate A content-based restriction is tion. if it open rum for free analyzed scrutiny deter- under strict of public in a to that public manner similar regulation is necessary mine whether the sidewalks,” shop and that streets and compelling interest and narrow- to serve public is invited center to which ping “ that end. Id. at 754. ly drawn achieve and invaluable fo provides ‘an essential tests, Applying these we conclude that ” speech rights. Id. exercising rum’ free ban) (com- (identification Rules 1 (quoting Pruneyard, 153 Cal. rule) impermissible purpose mercial are 341). this For Rptr. 592 P.2d restrictions, 4 (ap- and Rule content-based reason, centers privately-owned shopping requirement) impermissibly plication respect indi required in California enforce applied content-based when premises speech rights free vidual conclude Rules Rules 1 and We government enti to the same extent ban), rule), (designated (signage areas are bound to observe state federal ties rule) are content-neu- (peak and 6 traffic Glendale, at speech rights. 347 F.3d free tral; scrutiny but fail intermediate test The Court 1154. or place, manner re- for reasonable protection expres recognized this strictions. is private property on sive activities “ ” ‘greater’ than offered ‘broader’ A by the Amendment United First begin with the Unions’ chal Valley, 69 States Constitution. Fashion 1, Rule the identification ban. lenge to 288, (citing 172 P.3d at 749 Cal.Rptr.3d banning held that the rule ac Board 24 Lyons, Inc. Farming, Gerawan v. by name the mall own identifying tivities 470, 468, 12 P.3d Cal.Rptr.2d 101 Cal.4th er, manager, or tenants was identical to (Cal.2000)). 720, 735 to be unlawful in Glend the rule we held Glendale, by deter began en In we speech protection The free ale.2 mining rule content-based is whether the was shrined in the California Constitution Cir.2005) are bound decisions of represents C‘[w]e that Glendale 2. Macerich contends law, decision, misapplication and that prior panels of California an en banc Su- unless relying we on it. Even if subsequent legisla- the Board erred preme Court decision or Glendale, see Gener- decisions”) were bound follow (quoting those tion undermines 963, Castro, (9th 401 975 Const. Co. v. F.3d al 964 ysis 347 applies

or content-neutral. F.3d here: the identification Speech-regulating rules are considered content-based because Macerich would content-neutral when the rules are not re- have of speech to review the content subject topic speech. lated to the or literature to speech determine whether the Racism, Against Id. v. Rock Ward (citing tenant, by naming violated the ban a mall 781, 2746, 105 L.Ed.2d 491 owner, manager. or (1989)).3 generally 661 Rules are consid- Because the identification ban is regulating ered content-based when the contenUbased, next it we examine to deter party speech must examine the to deter- scrutiny. mine whether it survives strict Id. if Desert acceptable. (citing mine it Id. regulations “Cоntent-based receive v. City Valley, Outdoor Adver. Moreno scrutiny strict because re ‘content-based (9th Cir.1996)). In Glen- 103 F.3d likely strictions are im especially be dale, we that a determined rule prohibiting proper attempts to value some forms literature that included name of mall others, speech over particularly sus owner, manager, or tenant was content- ceptible being ... public used to distort based because mall would have to re- ” (quoting City debate.’ at 1155 view the literature to if it in- determine Gilleo, Ladue owner’s, manager’s, cluded an or tenant’s (O’Connor, J., name approving before the literature 129 L.Ed.2d Id. distribution. concurring)).5 1156.4 The same anal- Content-based restrictions Comm'n, Benny patrons v. U.S. Parole F.3d and stated that solicitation need not (9th Cir.2002)), reject we would permitted this ar- basically be incompati "when gument. ble normal character and function First, facility.” argues Cal.App.3d that Glendale relied Calkins, Cal.Rptr. (Ct.App.1987). on NLRB Valley, 187 F.3d Cir. Fashion 1999), Pruneyard, and that Calkins has which been discredited. reaffirmed ar silences this identifying gument. Cal.Rptr.3d While it is true the cases First P.3d speech protections free pri Amendment Valley on 748-49. The explicitly Fashion court property vate relied rejected on have Calkins been H-CHH suggest to the extent that it level, overruled at the federal California cases ed prohibited if it com Pruneyard incorporated princi like have petes with a center's merchants. ples into Vаlley, California law. See Fashion Id. at 753 n. 12. 748-49; 172 P.3d at 3. California state courts borrow from federal Pruneyard, 592 P.2d at jurisprudence First analyze Amendment addition, Calkins addressed free whether rule is content-based content- speech rights private of stand Glendale, neutral. 347 F.3d at 1155. stores, alone which have not taken equivalence functional public of a traditional Glendale, In we also the found rule be forum that was found to be compelling the content-based exceptions because it allowed extending speech rights reason for free in naming for commercial literature a mall own- shopping Pruneyard. malls See 153 Cal. er, tenant, manager, or and for literature Rptr. Glendale, 592 P.2d at 347 n. 5. groups persons pri- who were in a speech which the protections discusses free mary dispute labor with a mall tenant. These law, shopping good malls under California additional details enhance the content-based despite law the weaknesses in Calkins. regulation, the nature of but were not neces- argues Macerich next that recent decisions sary finding regulation to a was con- the Appeal of California Court of limit Prune- tent-based. yard's application speech rights of free private property. Specifically, California state courts also draw from First points to H-CHH Associates v. jurisprudence Amendment Citizens to determine Gov’t, Representative in which the California a whether content-based rule survives strict upheld Court of Appeal scrutiny center’s under the California Constitution. Glendale, proscription on the solicitation of funds from 347 F.3d at 1156. unconstitutional; the mall or its tenants. sages critical of a con- presumptively are were de- pass speech protections will constitu- free restriction Because tent-based if the least “only employs we speech, muster critical cannot signed protect tional compelling means to further restrictive suppression speech critical find the (citing R.A.V. Id. at 1156 interest.” find that compelling interest. We Paul, 505 U.S. City St. prof- maximize purpose to the Mali’s “[t]he S.Ct. com- compelling of merchants is not its its Schultz, 474, 483, 108 Frisby expres- the to free pared to Union’s (1988)). 101 L.Ed.2d S.Ct. Valley, sion.” Fashion authority to regulating burden is the provided at 754. Macerieh P.3d justified with- the restriction is prove that rule justification for the identification no speech. of the the content out reference to not reference the content of that does Racism, 491 Against Rock (citing Id. find that Rule speech. We therefore 2746). con- Courts have ban) (the does survive identification sistently restrictions based struck down scrutiny. strict hostility particular towards or favoritism messages. Id. 1157-58. B Glendale, argued that its the mall owner, manager, of an naming on the analysis applies to Rule The same ensuring its interest tenant served begin rule. We purpose the commercial were not operations normal business that the rule is content- by analyzing whether Id. this stated disrupted. We held 2 prohibits Rule based or content-neutral. the fact that interest was belied that inter signage and written materials speech promot- exception mall made purpose” fere with the “commercial tenants, boycotts of mall primary rule, this mall. As with the identification likely to be most speech that was authority regulating rule requires operations. disruptive of normal business of the written materi examine content also held rule at 1157. We it complies whether al determine it was motivated because was untenable rule, the rule. Like identification might ad- hostility messages that towards rule content-based. purpose commercial Id. at versely affect business. 1157-58. stated, restricting critical such Next, Rule 2 sur- “[i]n we address whether tenants, owners, about scrutiny. Valentine and Car- vives strict managers,[the] pur- rule contravenes the Manager, General Lytle, men Arden Fair’s speech protections: free pose California purpose explained that the commercial of issues preservation discussion ma- written rule was intended eliminate contrary regulat- to a they when even financially damage the terials that would interest.... The Cali- ing party’s belief or concluded mall or its tenants. The Board permit does not censor- fornia Constitution “place rule purpose of the was Id. at 1158. ship contrary ideas.” message on the restrictions content any publicity and negative so as to limit asserts a similаr interest Macerieh entirely 2 is motivat- not hurt sales.” Rule Valentine, Presi Senior Vice here. Susan critical of by hostility messages towards ed Macerieh, testified Marketing of dent no or tenants. Macerieh offers the mall its adopted the identification that Macerieh rule. justification for the content-neutral “good of the mall protect to name” Therefore, rule purpose commercial justification and its tenants. This stated scrutiny analysis. a strict hostility cannot survive towards mes- exposes Macerich’s supported by attempt peace- is the Cali- that does no more than Our conclusion Supreme fully fornia Court’s recent decision in persuade patronize customers not to Valley, Valley. In Fashion Fashion a cannot be ground business banned Supreme a analyzed Court mall California that it with op- interferes normal business “[u]rging, rule that or prohibited speech Valley Id. at 751 n. Fashion erations.” manner, any encouraging in customers not explained that the “distinction between purchase the merchandise or services boycott a urging customers business any offered one or more of the stores or physically impeding access to that in the shopping merchants center.” 69 business” crucial. Id. The California 172 P.3d at 744. The Supreme Court also that citizens noted determined that the rule was con- Court interest, “strengthened have a not a dimin- distinguished favored tent-based because interest, speech presents ished a that speech disfavored based on speech from grievance against particular a in a business a expressed: speech urging boy- the ideas center, privately owned including but other prohibited, speech cott was was speech boycott.” a advocates Id. Id. not. at 751-52. Valley distinguished boy- Fashion purpose The commercial rule at issue cott rule from rules prohibiting face-to- here, put place which was speak- limit funds, face solicitation which have been ers’ to persuade abilities customers not to held be content-neutral. The Court ex- businesses, patronize certain attempt is an plained that solicitation bans are con- speakers’ ability per- restrict speech, cerned with the manner are prohibit suade. The rule does not conduct directed at “the conduct and intrusiveness that would interfere with normal business that face-to-face solicitation for immediate operations, infringes but instead upon the exchange inherently donation or funds free strong speech peacefully interest promotes.” Id. at 752-53. Fashion Val- presenting a grievance to an offending rejected ley expressly argument the mail’s business. Because critical limiting on speech advocating that the ban a boy- an impermissible regulatory goal, Rule similarly justified cott could be as a re- cannot survive strict scrutiny analysis. speech. striсtion on the manner of Id. at 750, 753 (rejecting argument the mail’s C boycott ban was “a ‘reasonable regulation’ designed to assure free correctly The NLRB held that expression activities ‘do not interfere with (application Rule 4 requirement), when ”). normal operations’ business ... Unlike (iden used to enforce the unlawful Rules solicitation, noted, the Court peacefully ban) (commercial tification purpose urging boycott does not its nature rule) is likewise unlawful. The Board rea cause congestion promote or or fraud du- soned that the application process because ress. Id. at 753. is used to screen written com material for pliance banning with rule the identifi

As the Court owner, tenant, manager cation of a mall noted, shopping to “pro centers free and with the banning signage rule hibit conduct to disrupt ‘calculated normal purpose interferes the commercial operations’ business or that would result in Malls, the rule is content-based. We ‘obstruction of undue interference with ” agree, operations.’ normal business and reiterate that the (quot examination Diamond, speaker’s content message 477 P.2d at 733) ours). (emphasis However, “speech the hallmark of a content-based rule. The requirement regulated unlawful ence to the content becomes application objection- (2) a to narrowly tool ferret out speech, when used be tailored servе a (3) interest, content. able significant open and leave am ple alternative channels for the communi that of conclusion is consistent with Our Berger City cation of information. H-CHH, Appeal ‍​‌‌‌‌‌​‌​​‌‌​​‌​‌‌​‌‌​‌​​​​​‌​‌‌‌‌‌​​‌​​​‌​​‌​‌‌‍Court of the California (9th Seattle, Cir.2008) 512 F.3d struck as consti in which the Court down (citing Cmty. Clark v. Creative Non-V process an tutionally application defective iolence, expressive activity that screen for used (1984)).7 adversely shopping affect the center would Failure satisfy environment, atmosphere, image. or 193 any prong of single this test invalidates a 841.6 Cal.App.3d Kuba, regulation. (quot 387 F.3d at 858 Portland, ing City Grossman v. 33 F.3d that even if Rules argues (9th 1200, 1205 Cir.1994)). unlawful, is and the Board’s order appli because invalidated overbroad concede Rule is Unions entirely, process cation even when used content-neutral, argue but it is not legitimate goalslike proper further sched narrowly promote significant tailored to a argument This misstates uling events. open ' mall interest and does leave am enjoins order. The order the Board’s ple alternatives communication. To “[maintaining Macerich from and enforc regulation a prove that tailored requires presubmission ing a rule interest, significant regulat serve purpose materials of written ing authority identify must the interests enforcing” the unlawful identification restriction evi provide served ours). purpose (emphasis rules commercial proposed dence that the communicative ac this statement to mean We construe tivity endangers those Id. interests. may in use application process remain Speculation might hap 858-59. as to what legitimate promote as it is used to insofar if the pen proposed was allowed is time, place, manner on restrictions lack (finding insufficient. 859-60 construed, there expressive activities. So to support demonstrating evidence on holding. about the nothing overbroad city provide failed to evidence be where D yond hand” account that “there a “first no, simply space in the fire lanes or the challenge turn to the Unions’ apron which [demonstrators] concrete wearing carrying the ban on or Rule ”). Studies, ... would be safe anecdotes The NLRB concluded that Rule 3 signs. locales, history, con pertaining to different time, a reasonable restriction on was sensus, “simple common sense” To en- place, speech. or manner of be activi forceable, time, proposed serve as evidence place, restrictions justified ty endanger significant refer- interests. manner must without will interfering argues analysis that our should be tenants and with the com- 6. Macerich valid, Needletrades, purposes mercial of mall were as it guided In instead Union of properly that those issues had not been Employees, found v. Su dustrial & Textile AFL-CIO Court, preserved Id. at for review. 1020-21. Cal. perior Cal.App.4th ("UNITE”), Rptr.2d (Ct.App.1997) Appeal upheld prеcedent which Court of apply the California 7. California Courts federal expressive activity application process whether a rule is reasonable determine for. gives guid no mall. UNITE manner restriction. See Kuba Ass’n, Agric. not address 387 F.3d 850 Cir. ance because the Court did v. 1-A 2004). underlying nam- whether the restrictions on City Oswego, v. Lake may G.K Ltd. Travel While there be sufficient of (9th Cir.2006). common for as support In the sense Macerich’s 436 F.3d proposed sertion that communicative restrictions, example, safety case interests, activity endangers significant body not until regulating need wait some- signage narrowly ban is not tailored to injured promulgating regula- is before one regulation serve those For a interests. d’Alene, City tions. Edwards Coeur tailored, be the stated interest Cir.2001). 262 F.3d 865 n. effectively be must served “less absent the argues that 3 (signage Rule regulation,” regulation may and the not ban) convenience, justified by safety, is substantially speech “burden more than is and aesthetic concerns. Valentine testified necessary to au [regulating further necessary is signage ban to pre- Kuba, thority’s] legitimate interests.” people having vent walk out regulation F.3d at 861. The need ad activities, way expressive to avoid authority’s vance regulating interests keep signage looking professional, pro- in the least restrictive or least intrusive injuries by tect individuals from caused G.K, way, 436 F.3d at but exis they signs or the sticks to. are attached tence of numerous оbvious and less-bur generally safety We consider and conven- densome alternatives is relevant to the regulatory objectives. ience to valid be “fit,” Edwards, regulation’s F.3d Berger, 512 F.3d at 592. In least some (quoting City Cincinnati v. Discov circumstances, Network, Inc., we have recognized aesth- ery 418 n. significant (1993)). to be etics interest. See Foti 123 L.Ed.2d 99 Park, City Menlo 146 F.3d wearing ban on complete carry- or (noting that while cities do have a substan- ing signs any safety eliminates or aesthetic protecting tial interest in ap- the aesthetic concern signs sign associated with or pearance of their avoiding communities reason, poles. may For that said clutter, may visual these interests not be Macerich’s would interests be served less compelling). supports Common sense effectively However, absent the ban.8 signs picketers’ idea that inconven- Rule substantially 3 burdens speech more ience blocking retailers and customers than necessary to further Macerieh’s centers, sight lines in although legitimate just interests. Rule doesn’t the record does not include evidence speech that is communicated in dan- Similarly, reinforce this conclusion. com- gerous ways; virtually intrusive it bans suggests rigid signs mon sense speech all visually through communicated corners, sharp especially if Moreover, attached images and text.9 numerous heavy sticks, sharp pose could a threat obvious less burdensome alternatives safety. safety exist. The same considerations here, stop The dissent would have us before tion be the “least restrictive means” analyzing regulation goals. whether achieving agree burdens We Macerich’s substantially speech analysis necessary more than such an inappropriate would be where, here, legitimate goals scrutiny further Macerich’s or deter- intermediate See, Ward, mining appropriate e.g., whether numerous standard. obvious less- 109 S.Ct. 2746. burdensome alternatives exist. The volume availability burdened and the of nu- appropriate merous alternatives are exceptions, consider- There are of course. The Un- complete thorough ations in a narrow have ions could distributed handbills or at- not, tailoring analysis. signs as the dissent tached two table within an area suggests, insisting challenged regula- designated conduct. G.K., at 436 F.3d 1074. As we eliminating signs with natives. by served could be Foti, speech protections ex- dangerous characteristics. noted free particularly could, insist that example, “right particular to to choose a tend materials, have made from soft signs be ... lieu of means or avenue of corners, to card- or be attached rounded 146 F.3d at 641. other avenues.” convenience poles. Aesthetic board wary any particularly regula- restricting by promoted could be concerns “a completely forecloses venera- tion demonstrators signs allowing or the size of is сommunication that both ble means of t-on lettering in the form of signs to wear Gilleo, important.” at unique and U.S. ban on car- complete Because the shirts. one Picketing 2038. is such substantially wearing signs is rying or unique medium and has advan- venerable overbroad, satisfy require- it cannot communication, tages over other forms “narrowly tai- be ment that restriction recognition by including pass- immediate lored.” at In Ed- ers-by. 146 F.3d 641. Fot% signage if held the ban Even we wards, an invalidated ordinance ban- we a narrowly signifi tailored to serve plastic or ning attachment wooden interest, fail intermediate cant it would during parades supports signs carried open it fails leave scrutiny because image because “the classic and assemblies for communication.10 ample alternatives early back to the picketer dating of a — Kuba, regulation A 387 F.3d See days protests of labor of an individual —is effectively speaker a prevents holding sign-bearing aloft a standard.” audience fails reaching his intended F.3d at 865. Edwards, ample alternatives. open leave Moreover, when is the chosen picketing no is at 866. Where “there 262 F.3d communication, the location of means of way an economical other effective and particularly important. As protest his her or individual communicate Supreme Court reiterated the California methods commu message,” alternative activity to be Valley: Fashion “When the not are insufficient. Id. We will nication picket employ- an is the protected merely because regulation a invalidate er, employer’s the location of the business preferred speaker’s method restricts locus; only alterna- often the effective Id.; Savage communication. see also do call attention to the tive locations not Co., Cal.App.3d Crow v. Trammell subject picket- is the problem which eco- may apply fail to the desired (“The alternative channels adequacy of 288, 172 pressure.” nomic hopes of not the fondest measured Diamond, 477 P.2d at (citing P.3d ideas.”). those wish to disseminate who 733). However, regulation that forecloses Here, the signage the NLRB found that public expression across entire medium of left alternatives com- community open ample particular landscape of a still ample munication because Unions were open fails to alter- setting leave grounds essentially ignore place, manner restriction on us 10. The dissent asks analysis, stating "the disagree regulating prong this of the that we with the authori- repeatedly Ward, See, admonished Court has e.g., ty’s methods. 'ample alternative lower courts not to use the suggest not cases do These requirement as a means of over- channels’ "ample require- means” alternative regulations.” cases cited turning time, longer prong valid ment is no dissent, however, proposition stand for the analysis. place, and manner Court not overturn valid this in the dispute options. signage able to advertise their media ineffective Because the public property. and handbill on picket ban is tailored and does not mall argues regu- The Board now open ample leave alternatives commu- for attach lations allow the Unions to two nication, incorrectly applied the Board the table, a signs granting to thus them the law in that determining Rule was a advantage recognition by of immediate time, place, reasonable or manner restric- passers-by. We conclude that these alter- tion. legally inadequate. natives are While at- might taching signs two to table allow E passers- the Unions to communicate with 5, The Board also found that Rule by, such communication method fails to excluding exterior sidewalks from the des convey message protest the same of asso- ignated expressive areas conduct where holding ciated “an with individual aloft a occur, time, place, was a lawful signbearing Picketing standard.” manner restriction.11 Because the Unions handbilling public property, on while pre- content-neutral, concede that this rule is symbolism the serving the hand-held begin by examining we it whether is nar sign, fail reach would the Unions’ in- rowly significant tailored to serve a intere patrons tended audience: of the Malls or st.12 particular within the stores Malls. Valentine, According limiting expres- Physically removing protest the from the sive designated activities to certain areas offending employer’s location would seri- necessary preserve traffic flow and ously symbolic diminish the and economic compliance ensure fire codes. Mace- message. impact Advertising of the rich designat- excluded from sidewalks dispute similarly in the media would fail to ed audience, expressive areas target the desired activities because signifi- cantly expensive. patrons more of a signage concern that mall would have left the Unions with a range step narrow into expressive the street to avoid Feiock, 624, 629-30, consistently protected 11. Federal courts have 485 U.S. n. See, expressive public activities on sidewalks. S.Ct. sup- L.Ed.2d 721 Grace, e.g., port. actually says United States v. Hicks that a federal court (1983) (invalidat- apply is not to a rule from different that ing prohibiting statute by distribution of stated appellate leaflets state intermediate display signs Supreme highest sidewalks court where "the court has refused to grounds narrowly Court because not tai- review the lower court’s decision rendered in lored). phase California courts have extended very litigation one which is now protection privately-owned same prosecuted by sidewalks parties the same before the surrounding privately-owned shopping malls. federal court.” Id. n. Lane, here, See In re 71 Cal.2d 1423. This is not case Hicks also (1969) (reaffirmed P.2d in Fash- appellate states that "where an intermediate 747). Valley, ion 172 P.3d at state judgment upon court rests its considered announces, law rule of which is a by analysis ascertaining The dissent avoids this datum claim state law which is not validity regulation restricting disregarded by to be a federal court unless it petitioning designated by activities two persuasive areas is convinced other data that the already highest been determined the California court of the state would decide other- courts. The dissent cites thorough the California Court wise.” A and man- UNITE, Appeals's analysis decision 56 Cal. ner us that the convinces App.4th at 838. The Court would conclude that the ex- appellate then designated dissent claims a "state clusion of sidewalks from ar- binding expressive court's of state determination law eas for activities violates free deference,” given citing protections. must Hicks v. sidewalks, kept that must be clear. thereby jeopardizing other locations activity on acknowledge safety. The Unions Berger, F.3d at 603 rule (upholding Cf. interests safety and convenience that these expressive activity to sixteen restricting exclu- argue but significant, the rule fur- designated locations because designated ar- from the sidewalks sion of interests, city “significant keep- thered activity is eas for performances posing ing street these interests. to advance tailored flow and convenience of ... threats argue that the Unions Specifically, heavily congested areas and patrons no from—or mall are different sidewalks buildings”). agree, We and entrances to in most down than —sidewalks narrower regulations prohibiting that re- add areas, expressive on which activities town traffic flow on sidewalks would striction of reasoning sup This finds permitted. are safety other and sufficiently address the Grace, in which the United States port in convenience concerns.13 stated, pe building’s “the Supreme Court indistinguishable are sidewalks rimeter fails open ample Rule 5 also to leave city in the that public sidewalks from other for communication. have alternatives normally the conduct that is open to recognized that effective com- previously 461 U.S. at issue here....” depends speaker’s abili- munication on has Court 1702. The California In ty to address intended audience. can ex acknowledged “[pjersons that example, Baugh, United States we from areas where their entirely cluded requiring that a permit held a statute danger presence personal would threaten on National Park demonstrate passenger carrier or block flow so applied when as to refuse was unlawful traffic, doorways ar loading and such as in group permission a to demonstrate front Hoffman, In re 67 Cal.2d eas.” a visitors’ center. F.3d of Park’s (Cal.1967). P.2d Cir.1999). We noted However, significantly Rule 5 restricts a were ordered tо “First demonstrators doorways loading in activity than more yards away to 175 Amendment area” 150 areas. target center their from visitors’ where argue that numerous obvi- The Unions located, was audience was and that this an ous less restrictive alternatives could insufficient alternative communication instance, goals. For the Malls’ achieve were “left with because the demonstrators fire they suggest compliance code that allowed reach [them] no alternative by regulations prohibit- ensured could be intended audience.” Id. ing activities in entrances expressive [their] UNITE, reasoning extrapolat- UNITE was argues 56 Cal. While the 13. Macerich rules, 1010-13, apply com ed to to several other mall includ- App.4th at ing pels contrary that are more similar to Rule conclusion. We note that rules Ap perform a did not narrow tailor- the California Court of UNITE court rule discussed any than peal prohibited analysis restriction other in UNITE a demonstration particular prohibiting a demonstration that would have store because the demon front of analysis Because the a fire violated a fire code. stration would have violated code. expressive activity is preferred demon whether a restriction on UNITE court held that the sufficiently narrowly necessarily appropriate place an tailored is area was not stration fact-specific inquiry, Berger, expressive 512 F.3d at Id. at see conduct activities. here, (analyzing was whether several restric- issue no fire code 601-04 the situation at violated; suffi- no on the location of activities to have been there is tions shown interests), ciently the stated UNITE are not matched demonstrated reason that sidewalks analysis guide our here. place expressive activities. does appropriate Here, large complete expressive the Malls A cover areas ac narrowly only tivities is By banning ex- tailored where have numerous entrances. proscription’s “each within the pressive activity on confin- sidewalks and scope appropriately targeted is an evil.” ing expressive activity designated areas Frisby, yards any which be hundreds of explain Macerich has failed to how banning

given patrons, or its store Macerich every expressive activity during peak effectively cut off access the Unions’ significant times advances a interest. In audience(s). The fact that intended stead, attempted justify may still dispute Unions advertise entire ban as a “common sense” measure media, pub- and picket and handbill on crowding ‍​‌‌‌‌‌​‌​​‌‌​​‌​‌‌​‌‌​‌​​​​​‌​‌‌‌‌‌​​‌​​​‌​​‌​‌‌‍during peak to decrease times. again lic property, fails cure the consti- Numerous less restrictive alternatives infirmity. tutional Because Rule is not interest, promote the same including would open tailored and does not leave a limit on the number of individuals en communiсation, ample alternatives for gaged any activities one time, not a place, lawful manner restric- Although regulation time.14 need not be tion. the least restrictive advancing method of interest, G.K., compelling F.3d at 436 F complete the ban issue is certainly here Finally, we turn to overbroad. Rule the prohibition on expressive during activities complete on expressive activi- peak periods. applied by traffic As both ties, any rules, more than of the other mall Malls, prohibits expressive activity Rule 6 to open ample fails leave alternatives for throughout almost holiday shop the entire Again, communication. suggests ping period: the from Thanksgiving time advertising, the alternatives of media dem- through the end of December. During onstrations on public property, and ex- doubles, traffic period, this mall and the pressive in activity during the Malls the yearly Malls’ tenants do 75% of their busi days year activity when such is not ness. on Based this evidence of increased entirely prohibited. above, As discussed traffic, mall peak the Board found the options advertising the of media pick- and justified by traffic to be rule interests in public on eting property are neither effec- public safety, flow, preserving traffic and nor tive economical. Limiting expressive controlling congestion. activity to non-peak times eliminates the UNITE, points burdens, 14. The expenses, Board to H-CHH and ble administrative and upheld in 750-51, which Califоrnia courts re- similar Cal.Rptr.2d risks. expressive on during peak strictions activities gatherers physically Petition had verbally and periods, support traffic to its conclusion customers, staff abused and and altercations peak the permissible. traffic rule is Because proponents opponents partic between and explicitly neither H-CHH nor UNITE ad- petition gathering ular efforts had escalated regulations dressed question whether the in point pointed that rifles had been tailored, were we do not find them 751-52, petition gatherers. Id. at 117 Cal. analysis. informative this The dissent also circumstances, Rptr.2d 344. Given these Cos., Gallant, cites Costco Inc. Don right court determined that Costco had Cal.App.4th Cal.Rptr.2d impose regulations designed protect its (Ct.App.2002). The context Costco was operations, limiting business and that inter markedly present different from that in the profitable days ferences to its less awas ra supplied petition case. Costco evidence that tional Id. at restriction. gatherers directly in its store had interfered business, imposed the store’s considera- challenged restrictions. upon approved or criticize— have to comment opportunity in-person ignore actions directly courts The federal state —tenants’ they make the time that 75% during balancing expres- the freedom of case law sales, any chance of and forecloses against sion under stаte constitution reaching large effectively percentage laws; particularly where state reasons, For target audience. these engage is no federal there a reasonable rule is not peak traffic expressive private particular time, or manner restriction. place, property.

Ill relations, “[t]he labor ultimate problem balancing is the conflict ban) (com- (identification Rules ing legitimate interests. The function of rule) impermissible are purpose mercial striking that nation balance effectuate expressive content-based restrictions labor is often a difficult requirement) policy al activity. (application Rule to enforce responsibility, is likewise unlawful when used delicate which the Con ban), (signage 1 and 2. Rules Rules Nation gress primarily committed , rule), traffic (peak areas and 6 (designated subject Relations al Labor Board rule) content-neutral, but cannot be judicial review.” NLRB v. limited restrictions on the justified reasonable Truck Drivers Local Union No. activi- or manner 87, 96, 77 and en- promulgation Because ties. added). (1957) (emphasis We accord impermis- of these rules forcement of each deference to the National considerable rights free sibly infringes speech on the (“NLRB” Board’s Labor Relations Constitution, by the preserved California “Board”) interpretation of the NLRA as right no hold that the Malls had we long it is “rational and consistеnt” representatives from their exclude union Calkins, NLRB v. 187 with the statute. law. The enforce- premises under state Cir.1999). (9th 1080, up F.3d 1085 We against mall rules ment the contested on if appeal of the NLRB hold decisions and the exclusion of representatives, Union supported by fact findings prop- mall representatives from the Union agency if evidence and substantial erty, was therefore a violation section applied the Retlaw correctly law. 8(a)(1). petition, the Unions’ grant NLRB, v. 172 Broadcasting Co. F.3d part deny part in the Board’s grant Cir.1999). 660, 664 It is well-settled petition, deny petition. Macerich’s bound state law the NLRB is PART; IN GRANTED PETITIONS of nonem determining when IN PART DENIED access ployee representatives union private property. See Thun employer’s CALLAHAN, concurring Judge, Circuit Reich, v. Coal Co. 510 U.S. der Basin dissenting part: part and 771, 200, 21, 114 n. S.Ct. 127 217 to impose efforts agree I that Macerich’s Lechmere, (1994); Inc. 29 v. L.Ed.2d (rules 1, 2, and restrictions content-based 841, NLRB, 527, 535, 112 502 U.S. S.Ct. 4) scrutiny. speech do not survive strict on (1992). Therefore, it 79 fol 117 L.Ed.2d majority’s I dissent from the respectfully that a if California courts hold lows that admittedly con- holding that Macerich’s time, per place, or manner restriction time, re- place, and manner tent-neutral law, then the under California missible 6) (rules 3, 5, and are unlawful strictions rely entitled NLRB should be Act Labor Relations the National under (“NLRA”) to deter- attempting when courts those cases because the California

974 551, 570, 2219, sec- if a maE has violated NLRA 92 S.Ct. 33 L.Ed.2d mine 8(a)(1). (1972). tion provide Califоrnia has chosen to protection expressive activity additional properly apply A. courts inter- private shopping I, malls under article scrutiny mediate to content neutral section of the California Constitution. restrictions free on private Mall, NLRB, Valley Fashion LLC v. property. 850, 288, 69 Cal.Rptr.3d Cal.4th 172 P.3d time, place, A content-neutral man (2007). 749-50 California courts have “narrowly must ner restriction be tailored concluded, however, malls significant governmental to serve a inter may time, impose reasonable place, and est,” open ample and “leave alternative manner upon speech. restrictions Robins for the of the in channels communication Ctr., Pruneyard Shopping v. 23 Cal.3d formation.” v. Rac Against Ward Rock (1979); Cal.Rptr. 592 P.2d ism, 781, 791, Mall, Valley see also Fashion Cal. (1989). “A statute is narrow Rptr.3d 288, 172 P.3d at 754 (reaffirming ly if targets tailored no and eliminates “[sjhopping malls enact and en more than the exact source of the ‘evil’it regulations force reasonable Schultz, remedy.” Frisby seeks expression and manner of such free 474, 485, U.S. 108 S.Ct. 101 L.Ed.2d to assure that these activities do not inter (1988). regulation Whether a leaves fere with normal operations business open ample alternative channels com ”). of the mall ... California law allows an requires munication the information regulation content-neutral speech by if alyzing message com “could municipalities private reg actors if the ways” municated in other and the barriers ulations are protect tailored to conveying message. the intended Clark proper municipal private Non-Violence, interest. See Cmty Creative re Hoffman, 82 L.Ed.2d Cal.2d (1984). 97, 221 353, on “[A]n incidental burden 434 P.2d (discussing 355-56 essential, is no greater than and balancing of property municipal use for or is permissible therefore under [United private purposes and First Amend OBrien[, 367, 377, States 391 v.] 88 ment). Because California apply courts 1673, (1968) ], S.Ct. 20 L.Ed.2d 672 long so time, exact scrutiny same place, and regulation as the neutral promotes a sub manner restrictions First Amendment government stantial interest that would be activity courts, as federal the NLRB is effectively achieved less absent the regula rely upon entitled to a California court’s Albertini, tion.” United v. States 472 U.S. determination that restrictions similar to 2897, 105 S.Ct. 86 L.Ed.2d 536 imposed by those proper Macerich are (1985). validity “The regulations of such protecting private methods of property turn a judge’s agreement does not with rights under state law. responsible concerning decisionmaker appropriate most for promot method majority’s B. The give decision fails to ing significant government interests.” Id. proper deference to the mail’s There no federal in engage regulation of manner First Amendment that is unrelated wearing carrying of signs. privately shop- the business of owned NLRB, imposed complete Macerich not ping Hudgens center. 424 U.S. 518, 507, 1029, ban on of signs, 47 the use but has a rather (1976); Tanner, Lloyd Corp. v. “[pjarticipants may carry rule that or

975 effectively reg achieved absent the placards.”1 less any signs, posters or wear ” Savage, Cal.Rptr. 273 at 307 displays ulation.’ placards, posters, allows Albertini, 472 U.S. at 105 (quoting 22 inches than signs that are smaller 2897). a table “so S.Ct. are affixed to by 28 inches and any person property, or endanger not to case, restricting the In this union mem- or any tenant’s store of block view wearing signs carrying pick- or bers from compete with Center directly or display, inter- promotes Macerich’s substantial ets logos displays or or activities the business making protesters do not est sure of Center tenants.” sight-lines access stores or block displays impede foot traffic. That store or recognized have courts California effectively interest “would be achieved less in owners have different private property already Id. regulation.” As absent pur municipalities than for the terests noted, have California courts stated against balancing of those interests poses property owners “consid- commercial Hoffman, rights. In re First Amendment whether the number size ] and/or P.2d n. 3. Cal.Rptr. 434 at 355 er posters will interfere signs, placards or interest owners have an Private compete directly with with business and/or commer avoiding interference Assocs., logos.” or H-CHH displays property.2 356-67. purposes cial CaLRptr. at 856. controlling an “interest This includes traffic,” Savage v. Trammell litter majоrity The that the ban on concludes Co., Inc., Cal.App.3d Crow signs wearing carrying or does not leave (Cal.App.1990), and con Cal.Rptr. ample alternatives communica open the number sideration “whether and/or tion, speculating adequacy about the placards will inter signs, posters size including Macerich’s various alternatives directly compete with fere with to a signs and/or allowance two attached table. As logos.” H-CHH displays however, business Court, requires us Gov’t, Representative socs. Citizens reasonable give deference to determina Cal.App.3d are best tions substantial interests (“H-CHH”) disap (Cal.App.1987) the restriction issue. See served Ward, Fashion Val proved grounds on other U.S. at Mall, (“The Cal.Rpt failing r.3d 172 P.3d erred in ley Appeals Court of law, “the re city’s n. 12. to the reasonable determina Under defer volume tailoring controlling narrow is satisfied that its interest quirement of tion by requiring be best band- long regulation promotes as the ... would served ‘so the performers city’s to utilize sound interest that would shell government substantial leave"); part Strangely, majority legitimately have been asked to the omits the first could 1. states, rule, Ochoa, may "[pjarticipants Cal.App.4th the which 112 P’ship of v. Slauson clipboards 1005, 668, hold and leaflets.” (Ct.App.2003) Cal.Rptr.3d 5 686 (stating analysis that "our starts with the fact majority that court 2. The claims the state property, private the Slauson because Mall is approving content-neutral restric decisions persons right have the to exclude did the include tions on do not Mall, persons entering who entered the have re right to California courts exclude. permission property its were tres- the without unprotected peatedly stated that interference Albertson’s, Young, v. passing.”); Inc. 107 operation of with the commercial 721, 106, Cal.App.4th 738 131 Hoffman, expulsion. result in See In re (Ct.App.2003) (noting comply with failure 97, (stating at 434 P.2d 357 64 right stop triggers rules the owner's petitioners any way interfered “[h]ad activity). business, they the conduct of the railroad 976

technician.”).3 fact, (citing City Playtime Renton has stat 1141 Court of Theatres, Inc., ed that the “less restrictive-alternative 106 U.S. S.Ct. (1986)). 925, analysis part inquiry been Foreclosing has never man place, into the of a narrow form of while validity expression one ‍​‌‌‌‌‌​‌​​‌‌​​‌​‌‌​‌‌​‌​​​​​‌​‌‌‌‌‌​​‌​​​‌​​‌​‌‌‍allow- Ward, 787, ner at regulation.” ing “myriad 491 U.S. and diverse” alternatives (internal quotations reaching S.Ct. 2746 intended audience does not omitted). Amendment. One World citations The on to First Court went violate the Family City Cty. One Now v. Hono- through is error & conclude that it “sift[ ] lulu, (9th Cir.1996). 1009, imagined all the or alternative F.3d available regulating [activity] means of in order to majority picketing The assumes that in city’s determine whether solution was right carry or signs. cludes the wear achieving ‘the least means’ of intrusive Board, however, “pick The noted that desired end.”4 eting require holding does of a Am., Laborers Int’l N. analysis The Mace- Union of proper sign.” whether 570, rich’s United (citing rules “foreclose entire medium of 287 NLRB Am., Mine District public expression landscape across of a Workers (1969)). particular community or setting.” Menotti NLRB I cannot any find Seattle, City 409 F.3d 1138. authority picketing defines to neces Cir.2005) omitted). (quotations sarily “In the carrying wearing include the context, Frisby, See ‘ample Supreme alternatives’ signs.

Court clear (noting has made the First ordinance stated that only govern- Amendment requires pickets carrying “need not a sign”). be denying ment refrain from a ‘reasonable Macerich’s rule forbidding wearing or Id. opportunity’ signs for communication.” carrying “picketing.” did not ban Indeed, Supreme repeatedly park Court has tection of lands is wise how that attained.”). admonished lower courts not to use the "am- level of conservation is to be ple requirement alternative channels” as a Ward, overturning regulations. means of See majority analyzes 4. To the extent that (reversing 491 U.S. at 109 S.Ct. 2746 "numerous and less burden-some alterna- regulatory because "[t]he alternative methods regulations tives” Macerich's to conclude hypothesized by Appeals the Court of reflect tailored, they were not this is an nothing disagreement more than with the improper analysis. means least-restrictive city much over how control of volume Ward, See 491 U.S. at 109 S.Ct. 2746. appropriate or how that level of control Albertini, achieved”); be picket. is no There absolute See ("The [time, validity S.Ct. 2897 486-87, Frisby, 487 U.S. at 108 S.Ct. 2495 regulations manner] does not on a turn (noting picketing can offensive and judge's agreement responsible with the deci- intrusive). passage from the California concerning sionmaker appropriate the most Valley Court’s decision in Fashion promoting significant government method for support picketing Mall cited of a broader Clark, interests”); 468 U.S. at right concerned content-based restrictions on ("The Appeals’ suggestions 3065 of ... Court picketing activity, not a content-neutral re represent disagreement no more than a Mall, Valley See striction. Fashion 69 Cal. the protection Park Service over how much 288, Rptr.3d (discussing 172 P.3d at 748 Dia require parks acceptable the core or how an Bland, 653, Cal.Rptr. mond v. 3 Cal.3d 91 preservation level of is to be We do attained. (1970), however, P.2d believe, 741 which invali not States either United time, apart rule that regu dated a "all v. O'Brien or the deci- or manner lated, mutually assign judiciary authorily pro sions to the beneficial business the to replace displays, by and manager the Service motions Park as the of whether tenants or parks judiciary strangers, premises the or Nation's endow the forbidden on the of the Center”). competence judge pro- with the to how much Calkins, (discussing F.3d at 1089 rule how Indeed, that Macerich’s I conclude law). interpret to state “picketing” only one method of foreclosed deny the unions categorically and did rule and designated areas the C. The their dissatisfac- ability express tо of their been ex- peak days restriction have of labor. the use non-union tion with by pressly approved California courts. ample open rules alterna- left Macerich’s Hoffman, Cal.Rptr. In In re to communicate for the unions tive means Supreme P.2d at the Court California patrons. to mall The message their stated: have a table with two could used union objective limitations can Reasonable and members, and Macerich’s signs staffed persons who placed be number carry clip- union members rules allowed Amendment present can First be additional infor- and leaflets with boards per- activities at the same and patrons. majority for mall mation place required sons can be so present representatives that Local 586 mentions disruption. as to limit themselves wearing shirts Arden Fair Mall went to subject normally congestion, areas Arden Fair “Do Not that said Patronize turnstiles, and such as ticket windows fails to Carpenters,” but Mall—Unfair pro- can First Amendment activities Arden that there no evidence note can en- hibited. Persons be excluded representa- ejected union Fair Mall tirely presence from areas where their wearing shirts. Union mem- tives for those personal danger or block would threaten carry signs free wear or bers were traffic, carrier passenger the flow of or surrounding the sidewalks public doorways loading areas. such as “myri- lots. The union had parking malls’ Needletrades, & In Union Indus. Tex for communi- ad and diverse” alternatives Court, Superior tile 56 Cal. Employees messages patrons. mall cating (Ct. Cal.Rptr.2d App.4th majority acknowledges, under As (“UNITE”), a Court App.1997) California law, of alterna- adequacy “the that “a center Appeal shopping held fond- is not measured tive channels constitutionally empowered to enact rule of those wish disseminate hopes est who limiting particular activities to a (cit- Savage, Cal.Rptr. ideas.” union to distribute area.” The wanted 3065). Clark, 468 U.S. at Guess?, Inc. stores locat leaflets outside of expressly Although no California case of in ed in six different malls instead rule or banning wearing of a approved shopping designated provided by areas signs, intermediate court carrying of appel at 847-48. The state centers. that commercial establishments has noted rejected the union’s “most effec late court on the free to establish restrictions point argument, con persuasion” tive signs, placards, number size and Supreme cluding that the California Assocs., posters. H-CHH Pruneyard, Cal. Court’s decision Thus, the California cases indicate 347, approving P.2d at Rptr. Court would that the California time, place, and restrictions “to manner a commercial owner’s uphold not interfere assure that these activities do carrying signs, wearing ban the right to allowed operations” with normal business pro tailored placards, posters union nonemployee the restriction of ample designated leaving alternative channels testers to areas UNITE, at 849. petition. center.6 deny See communication symbolic activity of Although interest in the location 6. under the First Amendment stronger a message may create nature (noting state that “a F.3d at 1095 that if pro- The court concluded center California objective vides impose protection, can reasonable and limi- additional it does so law). modifying persons on the number of who can state tations persons present and those can be re- majority’s The reliance on the unavaila- quired be in an area so as to limit bility of the sidewalks and entrances im- result, disruption.” Id. at As a 848. mediately outside stores to conclude appellate state held that court several that Macerich’s restrictions are not nar- rules, including restricting petition- rules rowly supported by tailored also not is ing activity designated to two areas in the Lushbaugh California law. See v. Home malls, time, place, were valid and manner U.S.A., Depot Cal.App.4th 1159, restrictions under law. California Id. at Cal.Rptr.2d (Ct.App.2001) (noting 848—49. designated away areas be located different, traffic, traffic,

This case is no and if motorized foot entrances).8 Furthermore, activity restriction of petitioning to two California designated acceptable courts have concluded that the areas is under additional Cali- lаw, protection of un- fornia the NLRB must follow malls Califor- der Lechmere, state law not include a law.7 does nia 502 U.S. at conduct point at the most effective courts California have balanced UNITE, persuasion. at Cal.Rptr. expressive rights of unions under the cases). (collecting 849 n. 4 The Board against property California Constitution decision; properly relied UNITE in its rights state property owners’ under law. therefore, the Board’s decision is “rational question This is a law that state we are and consistent” with California law.9 Cal- T, reject. not free AT & West kins, 187 F.3d at 1085. 61 S.Ct. 85 L.Ed. 139 (1940) (“[T]he highest court of the state Similarly, upheld California courts have the final what arbiter of is state law. “peak days” so-called restrictions in H- spoken, pronouncement CHH, When its (approving accepted by to be federal courts as heavy days defin- ban on traffic if the dates ”); Calkins, ing state law .... writing); UNITE, see also set forth in 56 Cal. audience, ability specific and the Rptr.2d to reach a (Ct.App.1994), ap 889-90 which Hay, see Galvin v. F.3d 747-52 plied narrowly upholding tailored test in Cir.2004), given California has additional ban on vehicle-addressed solicitation. protection symbolic spe- locations or more (as patrons cific opposed audiences to mall majority 9. The states that Macerich did not general) expressive activity private com- show that the demonstration violated a fire UNITE, property. mercial See specifically code. The Board found that the (rejecting point 849 n. 4 the most effective designated Respondent area rule "assists the persuasion argument). complying with local fire codes.” The malls introduced evidence that local fire majority again 7. To the extent the once en- required eight codes to ten foot clearances gages potential analysis in an alternative entrances, around regulations upon sidewalks and relies the existence of sufficiently large were not less restrictive invalidate means to the restric- accommodate tion, reasoning improper any under those Su- clearances. I am unable to locate Ward, preme precedent. Court See authority requiring that Macerich establish 2746; Albertini, 472 U.S. at fire code violation before the fire code can be 689, 105 S.Ct. 2897. substantial under the interest tai- lored test. appellate Lushbaugh court in ‍​‌‌‌‌‌​‌​​‌‌​​‌​‌‌​‌‌​‌​​​​​‌​‌‌‌‌‌​​‌​​​‌​​‌​‌‌‍specifically Xiloj-Itzep City cited to Hills, Agoura Cal.App.4th 29 Cal.

979 clarity, majority with sufficient the com- 996, Cal.Rptr.2d (ap at 850 App.4th “holiday periods” rang analysis blackout court’s pletely ignores proving state period days to specific from 25 Costco that: Thanksgiving before the weekend between narrowly regulation is tailored Costco’s year); and January 2 of the next through it protects because Costco’s substantial Gallant, Cos., Cal.App.4th Inc. v. Costco operation in the of its interests smooth 344, 740, (Ct.App. 353-54 Cal.Rptr.2d days, rеpresent which stores on those 2002) expressive (affirming restrictions on percent year, less than 10 calendar Indeed, days). activity on busiest legitimate interests most when those are ac restricting expressive Macerich’s rule disruption to the which ex- vulnerable days, accompa tivity peak on 30 business pressive activity to time time dates, of unavailable is by the list nied at engendered Costco’s stores. Because approved lenient than restriction more 34-day content neutral and Cos, by court Costco Inc. by the state days during than other leaves more (4) UNITE, appel In the state days. four year expressive calendar which expres restrictions on approved late court permitted, it satisfies the re- the week activity spanning between sive requirements regula- a valid maining through January Thanksgiving before end time, place, tion and manner. 2nd, forty-two days. Ac period opinion in cordingly, Court’s at Lechmere, 841, 535, 112 S.Ct. 502 U.S. We are bound a state court’s inter precedents, as own mandate as well our pretation reviewing of state law when uphold accept that we state law of whether there NLRB’s determination that Macerich’s Board’s determination 8(h)(1) of has been a violation of section time, limitations days a valid are peak the NLRA when the NLRB must balance regulations. and manner rights against state section 7 attempts distinguish the majority Co., Basin property rights. Thunder Coal they do not stating сases 771; 217 n. 510 U.S. at S.Ct. Glen discuss whether rules 1152; Calkins, Assocs., dale 347 F.3d II-CHH con- tailored. Both UNITE and at 1088. not substitute 187 F.3d Hoffman, citations to In re tain numerous interpretations our of California law for specifi- cases Savage, and other California appeal. courts of of the California scrutiny intermediate cally applying 629-30, Feiock, See Hicks v. In place, and manner restrictions. 630 n. L.Ed.2d fact, refers to specifically UNITE other (1988) (noting appellate state court’s deter days limitations under a portions binding and must mination of state law is analysis being as “nar- “content neutral” deference). given “[O]nly state courts then the black- rowly approves drawn” and may authoritatively state stat construe un- periods “[ejqually appropriate” out Gore, Am., Inc. v. utes.” BMW of N. UNITE, 65 law. Cal. der California 134 L.Ed.2d It is Rptr.2d clear Cali- (1996). convincing “In the absence H-CHH were fornia courts UNITE and supreme court evidence that state scrutiny to content- intermediate applying differently, ‘a federal court would decide We are not free neutral restrictions. obligated to the decisions of follow simply law ignore precedents clear state ” Easyriders intermediate courts.’ state’s analysis explicit not as because their was Hannigan, 92 F.I.G.H.T. v. F.3d Freedom H- like. Even if as we would UNITE Cir.1996) (quoting scrutiny 1494 n. fail intermediate CHH to discuss Kirkland, re 915 F.2d Cir.

1990)). majority’s opinion give fails to law, appears

deference to state requirement ample

misuse the alterna

tive channels to conduct least-restrictive analysis

means to invalidate content-neu so, doing majority

tral rules. disre

gards approving types state cases

content-neutral restrictions Macerich im malls,

posed expression disap its

proves proper of the Board’s reliance on law, attempts to expres

state create rights

sive under California law at the

expense rights. of state

Accordingly, I dissent. Sung UHM; Uhm,

Do Eun Sook a mar individually couple,

ried and for all similarly situated,

others Plaintiffs-

Appellants, INC., corpora

HUMANA a Delaware

tion; Inc., Humana Health Plan

Kentucky corporation doing business Humana, Defendants-Appellees.

No. 06-35672. Appeals,

United States Court

Ninth Circuit.

Argued and Submitted March

Filed Aug.

Case Details

Case Name: United Brotherhood of Carpenters & Joiners of America Local 586 v. National Labor Relations Board

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 25, 2008

Citation: 540 F.3d 957

Docket Number: 05-75295, 05-76217, 05-77116

Court Abbreviation: 9th Cir.