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The U.S. Court of Appeals for the Second Circuit recently overturned a 2006 National Labor Relations Board (NLRB) ruling against the operator of an enclosed shopping mall in Watertown, New York. Salmon Run Shopping Center v. N.L.R.B., No. 06-4961 (2d Cir. Jul. 18, 2008). The NLRB held that the mall violated the law by denying the Carpenters Union permission to distribute two flyers to the public inside the mall. One flyer listed the benefits of union membership and the second flyer alleged that a non-union contractor doing work for a retailer/tenant of the mall did not pay "area standard" wages.

The Second Circuit took a much narrower view than did the NLRB of the so-called "discrimination exception" to a private property owner's right to deny access to its property. The NLRB held that the mall was denying the union access merely because it was a "union seeking to engage in labor-related speech." The Second Circuit, however, disagreed that the mall's actions constituted discrimination. The court noted that the material the union was distributing could fall under federal labor law protections, but stated non-employee union organizers are permitted on an employer's property for the purpose of protecting the interests of the employees they are seeking to organize, not the union's own interests. Because the union's intended audience was not employees of the mall or of its tenants, but rather was the general public, the court held that the union's right to distribute the pamphlets was extremely weak under federal law.    

Through this holding, the Second Circuit joins the Fourth and Sixth Circuits in taking a narrow view of the discrimination exception to the trespass rule. The Fourth Circuit, for example, has held that proving discrimination in this context requires a union to demonstrate that the employer favored one union over another or permitted employer material while banning union material. Meanwhile the Sixth Circuit has held that permitting limited charitable or civic appeals while banning union distribution is unlikely to constitute unlawful discrimination.

Property owners, especially shopping malls, are regularly inundated with requests from organizations to distribute materials on their property. Owners need to be diligent and consistent in their treatment of unions and other organizations seeking permission to distribute literature. A key consideration is the targeted audience: When a union is targeting the general public instead of a specific group of employees working on the property, the owner's right to deny access will likely be greater. Inconsistent treatment, however, will open the door to unfair labor practice charges by unions that are denied access.