United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 13, 2005 Decided June 16, 2006

No. 04-1411

FASHION VALLEY MALL, LLC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with

05-1027 & 05-1039

On Petitions for Review of an Order of the

National Labor Relations Board

William M. Lines argued the cause for petitioner Fashion

Valley Mall, LLC. With him on the briefs was Theodore R.

Scott.

Anne Marie Lofaso, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the brief

were Arthur F. Rosenfeld, Acting General Counsel, Margery E.

Lieber, Acting Associate General Counsel, Aileen A.

Armstrong, Deputy Associate General Counsel, and David S.

Habenstreit, Supervisory Attorney.
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Before: GINSBURG, Chief Judge, and SENTELLE, Circuit

Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

Concurring opinion by Senior Circuit Judge WILLIAMS.

GINSBURG, Chief Judge: Fashion Valley Mall, LLC, which

is owned and operated by the Equitable Life Assurance Society

and ITC Fashion Valley Corporation, allows individuals and

organizations to engage in expressive activities on its premises

if they first get a permit from the Mall. In order to receive a

permit, a party must agree to abide by Fashion Valley’s rules

and regulations, which prohibit urging consumers to boycott any

of the Mall’s tenants. The National Labor Relations Board held

Fashion Valley violated § 8(a)(1) of the National Labor

Relations Act both by maintaining this requirement and by

excluding from its premises certain union handbillers. 

We hold that whether Fashion Valley violated the Act

depends upon whether it had the right, under California law, to

maintain and enforce its anti-boycott rule. Because the

underlying question is one of state law as to which we can only

speculate, we certify that question to the Supreme Court of

California for an authoritative answer. 

I. Background

Fashion Valley owns a large shopping mall in San Diego,

California. The Company permits expressive activities by those

who apply for a permit and agree to abide by its regulations. An

applicant for a permit must state the purpose of the proposed

expressive activity; submit a copy or a description of any

materials and signs to be used; list the individual(s) who will

participate; provide a $50.00 refundable cleaning deposit;
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purchase insurance as necessary; and, per Rule 5.6.2, agree to

abstain from:

Urging, or encouraging in any manner, customers not to

purchase the merchandise or services offered by any one or

more of the stores or merchants in the shopping center.

In October 1998 approximately 30 “members and

supporters” of the Graphic Communications International Union

gathered outside the Robinsons-May department store at the

Mall to protest actions taken by The San Diego Union-Tribune

newspaper. The Union decided to stage the protest there

because the store advertises in the paper and is located not far

from the paper’s premises. 

The protestors distributed a handbill addressed “Dear

customer of Robinsons-May” that outlined the Union’s

grievances against the newspaper while making clear “[t]o the

employees of Robinsons-May ... [the] dispute is with The San

Diego Union-Tribune. We are not asking you to cease working

for your employer.” The Union encouraged patrons and

employees only to “[c]all Gene Bell, CEO at the Union

Tribune.” In closing, the handbill mentioned that “RobinsonsMay advertises with the Union-Tribune.” After about 15

minutes a representative of Fashion Valley approached the

protestors, explained that a permit was required for expressive

activity, and told them to leave the premises, which they did.

Thereafter, instead of applying for a permit, the Union filed

a charge with the Board alleging that Fashion Valley had

violated § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), which

makes it an unfair labor practice to “interfere with, restrain, or

coerce employees in the exercise of the rights guaranteed in

section 7” of the Act, to wit, 
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... the right to self-organization, to form, join, or assist labor

organizations, to bargain collectively through

representatives of their own choosing, and to engage in

other concerted activities for the purpose of collective

bargaining or other mutual aid or protection.

29 U.S.C. § 157. An Adminstrative Law Judge held the

Company had violated § 8(a)(1), and the Board affirmed, albeit

on a different ground. The Board reasoned:

[We] look[] to State law to ascertain whether an employer

has a property right sufficient to deny access to

nonemployee union representatives.... [A]n employer

cannot exclude individuals exercising Section 7 rights if the

State law would not allow the employer to exclude the

individuals.... California law permits the exercise of speech

and petitioning in private shopping centers, subject to

reasonable time, place, and manner rules adopted by the

property owner.... Rule 5.6.2, however, is essentially a

content-based restriction and not a time, place, and manner

restriction permitted under California law.... [T]he purpose

and effect of this rule was to shield [Fashion Valley’s]

tenants, such as the Robinsons-May department store, from

otherwise lawful consumer boycott handbilling.

Accordingly, we find [Fashion Valley] violated Section

8(a)(1) by maintaining Rule 5.6.2. 

Equitable Life Assur. Soc’y of the United States, et al., 343

N.L.R.B. No. 57 (Oct. 29, 2004) (internal citations and

quotations omitted). The Board also held the Company violated

§ 8(a)(1) by “requir[ing] [the Union’s] adherence to [the]

unlawful rule” in its permit application process. Id.

Consequently, the Board ordered Fashion Valley to rescind Rule

5.6.2. 
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II. Analysis

Fashion Valley petitions for review, and the Board crossapplies for enforcement, of the order. We enforce a Board order

if the factual findings upon which it rests are supported by

“substantial evidence,” see United States Testing Co. v. NLRB,

160 F.3d 14, 19 (D.C. Cir. 1998), and the Board’s interpretation

of the Act is reasonable and consistent with applicable

precedent, see Local 702, Int’l Bhd. of Elec. Workers, AFL-CIO

v. NLRB, 215 F.3d 11, 15 (D.C. Cir. 2000). When the Board has

occasion to interpret state law, however, our review is ordinarily

de novo. See Cellwave Tel. Servs. L.P. v. FCC, 30 F.3d 1533,

1537 (D.C. Cir. 1994) (no deference afforded to agency

interpretation of state law absent agency expertise on the

subject). 

As mentioned, the Board determined Fashion Valley

violated § 8(a)(1) in two ways -- first, by “maintaining” Rule

5.6.2 and, second, by “enforcing” Rule 5.6.2 against the Union.

In the latter regard, the Board reasoned that “inasmuch as the

application process requires adherence to an unlawful rule,”

Fashion Valley “violated Section 8(a)(1) by enforcing Rule

5.6.2, i.e., by requiring the instant application for a permit.” 343

N.L.R.B. No. 57. 

In Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), the

Supreme Court held it is not a violation of the Act for an

employer to bar nonemployee union organizers from its property

“except in the rare case where the inaccessibility of employees

makes ineffective the reasonable attempts by nonemployees to

communicate with them through the usual channels.” Id. at 537-

38 (emphasis and internal quotations omitted). Under the

Board’s reading of Lechmere, which Fashion Valley does not
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* Fashion Valley does not challenge the Board’s assumption that

because it is an “employer” within the meaning of § 2(2) of the Act,

29 U.S.C. § 152(2), it may be held liable for interfering with the § 7

rights of the employees of another employer with which it has no

agency relationship -- a matter upon which we express no opinion. 

dispute, an employer may, without violating § 8(a)(1), exclude

a nonemployee union representative from its property if and

only if it has that right under state law. See Waremart Foods v. *

NLRB, 354 F.3d 870, 872 (D.C. Cir. 2004). 

Our review of the Board’s holding in the present case

requires us to resolve two further questions: (1) State law aside,

did Fashion Valley’s requirement of a permit for expressive

activity, conditioned as it was upon the Union’s agreement not

to urge a boycott of any Mall tenant, violate § 8(a)(1) of the

Act? (2) If so, was Fashion Valley acting within its rights under

California law? 

 

A. The National Labor Relations Act

Fashion Valley does not challenge the Board’s position that

maintenance of the anti-boycott rule violated § 8(a)(1) if the rule

also violated the laws of California (of which more later). The

Company does, however, contest the Board’s further

determination that Fashion Valley violated the Act a second

time when it enforced Rule 5.6.2 by conditioning the Union’s

demonstration upon its adherence to the Rule. In Fashion

Valley’s view, there is simply not substantial evidence the

Union intended to boycott Robinsons-May or any other Mall

tenant; therefore the Union would have received a permit had it

applied for one. Further to this point, Fashion Valley argues that

because its permit application “does not highlight Rule 5.6.2,

which only consumes three of the 71 lines included in Article

5,” the Board cannot reasonably infer the Union “based its
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refusal to apply for a permit on Rule 5.6.2” nor, hence, that the

rule interfered with § 7 rights.

 

The Board argues that Fashion Valley interfered with the

employees’ § 7 rights when it sought to force the Union

members to forgo a lawful method of protest. If the Board

correctly understands that under California law Fashion Valley

did not have the right to exclude the demonstrators, then, the

Board maintains, the Mall violated § 8(a)(1).

We agree with the Board. Although Fashion Valley is

correct that there is not substantial evidence the Union intended

to boycott any of the Mall’s tenants, nothing in the Act prohibits

the Union from carrying out a secondary boycott by means of

peaceful handbilling. Edward J. DeBartolo Corp. v. Fla. Gulf

Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 583-87

(1988). In subjecting the Union to a permit process that required

it to forswear use of this lawful tactic, therefore, Fashion Valley

interfered with the employees’ rights under § 7 of the Act. That

Rule 5.6.2 comprised only three lines of text is irrelevant; it

imposed an unlawful condition for obtaining a permit.

Enforcement of Rule 5.6.2 therefore violated § 8(a)(1) -- unless,

that is, the Company had the right under California

constitutional law to exclude the employees altogether. See

Waremart, 354 F.3d at 872.

B. The Constitution of California

 The Supreme Court of California has ruled that “the

California Constitution protect[s] speech and petitioning,

reasonably exercised, in shopping centers even when the centers

are privately owned.” Robins v. Pruneyard Shopping Ctr., 23

Cal. 3d 899, 910, 153 Cal. Rptr. 854, 860 (1979). Fashion

Valley therefore seeks refuge in the “reasonably exercised”

limitation upon petitioning, pointing out that the Court in
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Pruneyard also said a private shopping center is not required to

host expressive activities that “interfere with normal business

operations,” 153 Cal. Rptr. at 860-61, and reasoning that Rule

5.6.2 is lawful because it merely protects the Mall “from

disruption of normal business operations and ... interference

with customer convenience.” H-CHH Assocs. v. Citizens for

Representative Gov’t, 193 Cal. App. 3d 1193, 1208, 238 Cal.

Rptr. 841, 850 (Cal. App. 2d Dist. 1987); see also Diamond v.

Bland, 3 Cal. 3d 653, 666, 91 Cal. Rptr. 501, 509 (1970) (parties

may restrict speech in order to prevent “obstruction of or undue

interference with normal business operations”); In re Hoffman,

67 Cal. 2d 845, 852, 64 Cal. Rptr. 97, 101 (1967) (protestors not

permitted to “interfere[] with the conduct of the railroad

business”).

 

In the Company’s view, that is, the Union’s constitutional

right to engage in expressive activities does not extend to any

activity that interferes with the Mall’s primary purpose, namely,

“to facilitate the ease of commerce and to promote the business

of its merchant tenants.” H-CHH Assocs., 238 Cal. Rptr. at 859.

According to Fashion Valley, in urging a boycott “what the

protestor is asking the customer to do ... is inherently

inconsistent with the dedicated purpose of the shopping center --

the promotion of merchandise and services in the shopping

center.” 

Alternatively, Fashion Valley argues, even if there is no

“primary purpose” doctrine in Pruneyard and H-CHH

Associates, the Mall is not a “public forum” under the laws of

California and therefore its regulation of expressive activity

“need only be reasonable”; yet the Board failed to address the

“forum analysis” undertaken bythe Supreme Court of California

in Clark v. Burleigh, 4 Cal. 4th 474, 482-489, 14 Cal. Rptr. 2d

455, 460-65 (1992). Under Fashion Valley’s reading of Clark,

all “property other than streets and parks,” and hence the Mall,
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is a non-public forum. 

Finally, Fashion Valley argues that even if the Mall is a

public forum, Rule 5.6.2 is a permissible, content-neutral

regulation of speech. In Los Angeles Alliance for Survival v.

City of Los Angeles, 22 Cal. 4th 352, 93 Cal. Rptr. 2d 1 (1992),

the Supreme Court of California, defining a “content-neutral”

regulation as a restriction “justified without reference to the

content of the regulated speech,” 93 Cal. Rptr. 2d at 10, upheld

an ordinance that banned “all solicitation in certain defined

places” and “aggressive” solicitation in any public place, 93 Cal.

Rptr. 2d at 7. Fashion Valley maintains Rule 5.6.2 is similarly

content-neutral because it “prohibits all boycott appeals directed

at the Mall’s stores or any of the goods or services sold by Mall

merchants, regardless of the subject matter of the protest or the

protestor’s ... viewpoint.”

 

The Board disagrees with Fashion Valley on all counts.

First, the Board argues Fashion Valley misreads Pruneyard and

H-CHH Associates to mean “California has created a forum

open to all speech except for that criticizing the actions of mall

tenants.” In the Board’s view, the reference in H-CHH

Associates to “freedom from disruption of normal business

operations” means only that a shopping mall may impose

appropriate time, place, and manner restrictions on expressive

activity.

 

Second, relying upon the Ninth Circuit’s decision in

Glendale Associates, Ltd. v. NLRB, 347 F.3d 1145 (2003), the

Board maintains the Mall is indeed a “public forum” under the

State Constitution. In Glendale the court read Pruneyard to

mean “privately-owned shopping centers are required to respect

individual free speech rights on their premises to the same extent

that government entities are bound to observe state and federal

free speech rights.” Id. at 1154. The Board also adverts to our
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decision in Waremart, in which we held that under California

law a grocery store could exclude union handbillers from its

parking lot, but in passing noted that in Pruneyard the Supreme

Court of California “reasoned that shopping centers had become

the functional equivalents of‘miniature downtowns’ and should

be treated as public forums, from which expressive activity

cannot be entirely excluded.” 354 F.3d at 872. 

Finally, the Board argues Rule 5.6.2 is not content-neutral

but rather a “content-based restraint on speech because it

facially prohibits persons from urging or encouraging, in any

manner, customers not to purchase the merchandise or services

offered by any Mall tenant.” In Glendale, the Ninth Circuit held

a shopping mall regulation that prohibited the distribution of

written materials mentioning by name any “tenant, owner, or

manager” of the mall, 347 F.3d at 1147, was not content-neutral

because it was “based on hostility ... towards the underlying

message expressed.” Id. at 1157-58. So, too, says the Board of

Fashion Valley’s ban on boycotts: “Indeed the Shopping Mall

admits that it maintains the rule because it disfavors speech that

may adversely affect its business.”

Neither party’s argument is fully persuasive. Each marshals

the California case law to advantage, but the fact remains that no

California court has squarely decided whether a shopping center

may lawfully ban from its premises speech urging the public to

boycott a tenant. The case closest in point is UNITE v. Superior

Court of Los Angeles County, 56 Cal. App. 4th 996, 1020, 65

Cal. Rptr. 2d 838, 854 (Cal. App. 2d Dist. 1997), which

involved “Prohibition[s] Against Interference With Mall

Tenants” very similar to Fashion Valley’s Rule 5.6.2. Although

the courtsaid the anti-boycott rules “could lead to impermissible

content-based regulation of expressive activities” in violation of

the State Constitution, it did not determine whether the rules

actually were unconstitutional because the issue had not been
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preserved. 65 Cal. Rptr. 2d at 854-55. The Supreme Court of

California we think could reasonably agree with either Fashion

Valley or the Board. 

III. Conclusion 

 In sum, whether Fashion Valley violated § 8(a)(1) of the

Act depends upon whether it could lawfully maintain and

enforce an anti-boycott rule -- a question no California court has

resolved. Because we owe no deference to the Board’s

interpretation of the Constitution of California and can only

guess how the Supreme Court of California would resolve the

issue, we shall certify to that court the following question: 

Under California law may Fashion Valley maintain and

enforce against the Union its Rule 5.6.2? 

Pursuant to Rule 29.8 of the California Rules of Court, we

may certify “a question of California law if: (1) the decision

could determine the outcome of a matter pending ... and (2)

there is no controlling precedent.” Cal. R. Ct. 29.8(a). Here,

both requirements are met. Accordingly, we shall hold this case

in abeyance pending a response from that court.

 So ordered.
 WILLIAMS, Senior Circuit Judge, concurring in the 

certification to the Supreme Court of California: I write 

separately to underscore what the decision does not hold and 

to explain where I depart from the majority’s reasoning. First, 

as Maj. Op. at 6 n.* observes, we take no position on whether 

a firm connected to a labor dispute or relationship only by 

virtue of being the landlord of a firm (Robinsons-May) that 

advertises with the disputing employer (the San Diego UnionTribune) is subject to the duties (vis-à-vis a union seeking to 

handbill against the Union-Tribune) that the National Labor 

Relations Act (“NLRA”) imposes on “employers” with 

respect to their own employees (and unions seeking to 

represent them). Fashion Valley raised no such issue. 

Second, the Board found that, assuming that Rule 5.6.2 

violated California law, Fashion Valley had violated § 8(a)(1) 

both “by maintaining” Rule 5.6.2, Equitable Life Assur. Soc’y 

of the United States, et al., 343 N.L.R.B. No. 57 at 2 (Oct. 29, 

2004), and “by enforcing” the rule, id. Fashion Valley didn’t 

challenge the Board’s “maintenance” finding; thus we reach 

no holding on that issue, and the question of California 

constitutional law is properly before us (and in turn certified). 

But Fashion Valley did challenge the Board’s conclusion 

that it (Fashion Valley) violated § 8(a)(1) “by enforcing Rule 

5.6.2, i.e., by requiring the instant application for a permit,” 

id. (emphasis added), and I cannot agree with the court’s 

reliance on that finding—reliance that appears quite 

unnecessary in view of the Board’s unchallenged 

“maintenance” conclusion. I see three problems with the 

majority’s enforcement analysis. First, the union’s proposed 

leafleting didn’t run afoul of Rule 5.6.2. Although the Board 

incorporated the ALJ’s finding that “the Union’s October 4 

leafleting had, as its primary object, a consumer boycott of the 

Mall’s Robinsons-May store,” id. at 1, 7, the majority 

correctly reverses that finding. See Maj. Op. at 7 (agreeing 
2

with Fashion Valley’s contention “that there is not substantial 

evidence the Union intended to boycott any of the Mall’s 

tenants,” id. at 6). It is hard to see how a firm can “enforce” a 

rule in an episode to which the rule is irrelevant. 

Having removed the factual support from the Board’s 

position, the court goes on to affirm on different grounds, 

disregarding the familiar principles of Securities and 

Exchange Comm'n v. Chenery Corp., 318 U.S. 80, 87-88 

(1943). The court says that “Fashion Valley interfered with 

the employees’ rights” by “subjecting the Union to a permit 

process that required [the Union] to forswear use of a lawful 

tactic.” Maj. Op. at 7. This evidently rests on the Board’s 

conclusion that “inasmuch as the application process requires 

adherence to an unlawful rule, [Fashion Valley] may not 

enforce it.” 343 N.L.R.B. No. 57 at 2 (emphasis added). The 

referent for the word “it” is unclear. The majority reads “it” 

as the application process. Thus, under the majority’s 

reading, a firm imposing an application requirement 

“enforces” all of its rules (at least ones that a successful 

applicant must pledge to obey) anytime that it insists on an 

application. The majority thus eviscerates much of the 

distinction between enforcement and maintenance. Fashion 

Valley maintained Rule 5.6.2, but in no way enforced it. 

Alternatively, “it” may refer to Rule 5.6.2. This seems 

more likely, in view of the Board’s finding that the union 

intended a boycott (which we now reverse), and its later 

reference to Fashion Valley’s “enforcing Rule 5.6.2.” Id. On 

this reading, of course, the Board’s analysis would founder for 

want of factual support. 

Second, the majority’s enforcement theory is further 

marred by the union’s complete unawareness (on the date of 
3

the supposed “enforcement”) of the very existence of Rule 

5.6.2 or its content. The evidence suggests that Fashion 

Valley excluded the union on October 4 simply because the 

union refused to apply for a permit, not because Fashion 

Valley “enforced” Rule 5.6.2 in any non-metaphysical way. 

Lastly, the majority notes that under Edward J. 

DeBartolo Corp. v. Fla. Gulf Cost Bldg. & Constr. Trades 

Council, 485 U.S. 568, 583-87 (1988), nothing in the NLRA 

barred the union from carrying out a secondary boycott by 

peaceful handbilling. Maj. Op. at 7. True. But of course that 

tells us little or nothing about the possible affirmative duties 

of parties subjected to secondary boycotts. 

In sum, the majority stretches ordinary language (and the 

case law) too far—and substitutes its own reasoning for the 

Board’s—in concluding that when a company conditions 

leafleting on submission of an application it automatically 

“enforces” any rule (that a successful applicant would be 

required to obey) against persons who have neither 

contemplated conduct that might violate the rule nor learned 

of the rule’s existence.