Businesses that would like to allow charitable, religious, and civic organizations to come onto their property to communicate with employees or the general public about non-work-related matters such as charitable contributions and community programs often refrain from granting such access because they fear that it will mean they will have to grant union organizers the same access to their premises. A recent federal appellate court ruling interpreting Section 7 of the National Labor Relations Act (NLRA), however, offers encouraging news to employers in this regard. In Salmon Run Shopping Center v. NLRB, Case No. 06-4961-ag(L), 06-5510-ag(XAP) (July 18, 2008), the United States Court of Appeals for the Second Circuit ruled that a mall owner did not violate the NLRA when it refused access to a labor union seeking to protest a tenant’s use of non-union contractors – even though the mall regularly permitted solicitation by outsiders under other circumstances.

The decision narrowly interpreted the “discrimination exception” set forth in N.L.R.B. v. Babcock & Wilcox, Co., 351 U.S. 105 (1956), by which non-employee organizers can assert greater access rights to employer property. The court held that an employer discriminates against non-employees only when it treats non-employees seeking to communicate on a subject protected by Section 7 of the Act less favorably than another person communicating on the same subject.

The Salmon Run Decision

Salmon Run is a shopping mall in Watertown, New York. When a sporting goods store in the mall remodeled space in preparation for opening a new store, it hired a contractor whose subcontractor did not employ union carpenters. A carpenter’s union representative asked mall management about setting up a table to distribute literature. The mall denied the union’s request because it did not want to have to give access to other unions.

The carpenter’s union filed an unfair labor practice charge. At the hearing on the charge, the union admitted that no employees of the mall were represented by the union and no employees of the mall were targets of the union’s distribution. The union stated that its intended audience was the “general public” and that it wanted to distribute literature describing the advantages of union membership and criticizing the sporting goods store for using a nonunion subcontractor that did not pay area standard wages. The National Labor Relations Board (“the Board”) held that the mall violated the NLRA by not allowing the union to distribute literature on its property.

The Second Circuit vacated the Board’s decision. In Salmon Run, the court first noted that, pursuant to the Supreme Court's Babcock case, employers can exclude non-employee union organizers from its property unless 1) there is no alternative reasonable access to the targeted employees or 2) the employer discriminates against the union in refusing access. The court, agreeing with the Board, determined that Section 7 rights were involved and that the case was controlled by Babcock. Most significantly, however, the court disagreed with the Board’s articulation of the discrimination exception defined in Babcock.

The Board found that the mall violated the NLRA because the mall allegedly demonstrated an intent to disfavor union activity. The Salmon Run court concluded, on the other hand, that the Board’s focus should have been on a “comparison of the treatment of speakers on a subject that section 7 protects,” not on the mall’s motive. The court found that an employer discriminates against non-employee union organizers only when it treats a non-employee seeking to communicate on a subject protected by Section 7 less favorably than another person communicating on the same subject. Applying this rule to the Salmon Run facts, the court concluded that the mall would violate the NLRA only if it allowed the sporting goods store to defend its contractors for not paying area standard wages but not allow the carpenter’s union to tell its story or if the mall allowed other unions to distribute organizational literature.

Practical Implications

Salmon Run is a decisive victory for employers. The Salmon Run court narrowly interpreted the Babcock discrimination exception so that the exception will be relevant far less often. Under Salmon Run’s interpretation of Babcock, an employer can refuse access to all non-employee union organizers (assuming there is an alternative means to access the employees), even when the employer grants access to other groups. However, if an employer adopts such a policy, it must be sure to apply the policy consistently and refuse all unions seeking access to mall facilities for the purpose of organizing. Employers might consider reviewing their access policies and clarifying or revising them to protect their rights accordingly.

It should be noted, however, that the Second Circuit’s decision in Salmon Run will be binding on the NLRB only in the states within the Second Circuit’s jurisdiction (New York, Connecticut, and Vermont). The NLRB is free to continue applying its broad interpretation of discriminatory denial of access elsewhere, although the U.S. Court of Appeals for the Fourth Circuit (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina) and the Sixth Circuit (covering Michigan, Ohio, Kentucky, and Tennessee) have previously expressed their disapproval of the NLRB’s broad standard. If you have any questions in this regard, please do not hesitate to contact one of our attorneys.