The Second Circuit Finds Precluding Distribution of Union Literature Not Discrimination
 
October 22, 2008
 
Colleen A. Sorrell- New York

A recent decision of the U.S. Court of Appeals for the Second Circuit makes it easier for employers with facilities open to the public, including hospitality employers, to keep non-employee union supporters from distributing literature on their property. The Court ruled that a shopping mall legally prohibited the Carpenters’ Union from passing out literature because the mall had a policy of allowing only those outside groups whose presence would help the mall’s business to distribute and it had not allowed either tenants or other unions to speak on union organizing issues. Salmon Run Shopping Center LLC v. National Labor Relations Board, 534 F.3d 108 (2nd Cir. 2008).

The Carpenters’ Union sought to distribute literature to the general public at the Salmon Run Mall in Watertown, New York. The mall and its tenants employed no carpenters and the Carpenters’ Union was not seeking to unionize employees working at the mall. Rather, the union wanted to distribute literature to the general public touting its benefits and criticizing a mall tenant that had used non-union carpenters to do renovations.

The mall had an outside groups policy stating that when considering whether to allow a non-tenant group to distribute or solicit in the mall, the manager considers whether the activity will benefit the mall, either by increasing foot traffic or by enhancing the mall’s public image. In the past, the mall had allowed the American Cancer Society to offer a holiday gift wrapping service, which served to enhance the mall’s public image, and had allowed educational institutions to hand out literature on “Higher Ed Night,” which served to increase foot traffic on a week night. Also, other unions had been allowed to distribute under this standard. The United Food and Commercial Workers Union was allowed to set up a table at the mall’s health fair to explain how the union benefited the community, and a local firefighters’ union was permitted to collect contributions for its fund raising drive to benefit the Muscular Dystrophy Association.

But the mall refused the Carpenters’ Union’s request to distribute literature. Its letter stated that “we welcome charitable, or other organizations to solicit in the common areas of the mall when the solicitation will benefit both the organization and our tenants,” but went on to state that “[b]ased upon these criteria, we are unable to grant your application at this time.”

The Carpenters’ Union filed an unfair labor practice charge, alleging that the mall’s denial of its request to distribute literature violated the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB) found a violation, but the Second Circuit disagreed. The Second Circuit found that the Carpenters Union’s right to distribute literature was weak because the individuals who sought to distribute were not mall employees and they wanted to communicate with the general public rather than to unionize mall employees. Employers must allow their own employees to solicit for a union on their property during breaks and other non-working time during their work days. But, they need not grant property access to non-employee union activists unless those activists cannot reach the employees through other reasonable means of communication, or if the employer discriminates against unions by allowing other similar non-employee groups to solicit or distribute on its property.

The Second Circuit disagreed with the NLRB’s conclusion that the mall had allowed other similar groups to distribute and therefore had to allow the Carpenters’ Union on its property. To discriminate, a private property owner must treat a non-employee who seeks to communicate on a subject protected by the NLRA less favorably than another person communicating on the same subject. Thus, it would be discriminatory if the mall were to allow the tenant to defend its contractors’ use of non-union carpenters but not allow the Carpenters’ Union to tell its side of the story. Similarly, the mall could not allow a competing union to distribute organizational literature but preclude the Carpenters’ Union from doing so. But “the solicitation of Muscular Dystrophy donations by firefighters or the distribution of educational promotional materials on Higher Ed Night do not serve as valid comparisons to the Carpenters’ Union distribution of literature touting the benefits of its apprenticeship programs or decrying the failure of a mall tenant to pay area standard wages.”

Practical Significance

This decision is significant for employers who have property that is open to the public. It means that in the Second Circuit (New York, Connecticut and Vermont), employers can allow outside groups that benefit their businesses to solicit and distribute literature, while still prohibiting non-employee union organizers from having access, as long as they do not allow tenants or outsiders to speak about union issues in public areas. Employers need to make sure, though, that they have an appropriate solicitation and distribution policy in place before non-employee union organizers arrive. Holland & Knight lawyers can review your policy and assess if it is appropriate.

For more information, contact:

Colleen Sorrell
212.513.3582
colleen.sorrell@hklaw.com
toll free: 1.888.688.8500