A shopping mall operator did not commit an unfair labor practice in denying permission for union members to distribute literature at the mall, the Second Circuit rules, overturning a National Labor Relations Board decision in the case.

The enclosed shopping mall had a new tenant who used nonunion labor to remodel its retail space. The mall operator turned down a local Carpenters’ Union request to set up a table at the mall to distribute literature to the “general public” highlighting the advantages of union membership.

The shopping center had a policy of welcoming “civic, charitable, or other organizations to solicit in the common areas of the mall” subject to the mall manager’s determination whether the activity would benefit the mall. The NLRB held that the mall operator excluded the union from its property because it was a labor organization and thus committed an unfair labor practice.

The Second Circuit disagrees with the Board’s reasoning, holding that “[t]he intended audience of the Carpenters’ Union was the ‘general public.’ No employees of the mall or of its tenants were specifically targeted by the Carpenters’ Union.”

The Court says that to amount to illegal union discrimination, “the private property owner must treat a nonemployee who seeks to communicate on a subject protected by [the NLRA] less favorably than another person communicating on the same subject….There was no evidence in this record that any employer was permitted to communicate to the general public, through the use of mall facilities, its reasons for not paying area standard wages to members of a unionized trade. Nor was any competing labor group permitted to engage in efforts to organize members of their trade. Accordingly, the Board’s conclusion that the operator of the mall had discriminated against the Carpenters’ Union cannot stand.” Salmon Run Shopping Center LLC v. NLRB