In Salmon Run Shopping Center LLC v. National Labor Relations Board, the U.S. Court of Appeals for the Second Circuit refused to enforce an order issued by the National Labor Relations Board (NLRB) requiring a private shopping mall to allow nonemployee union organizers to distribute literature to mall patrons that was critical of and targeted at a mall tenant.

The issue arose when a mall tenant used a nonunion contractor to remodel its store. The local Carpenters’ Union requested permission from the property owner to distribute literature in the mall protesting the nonunion work. The mall rejected the union’s request because it did not satisfy the mall’s “community action program” criteria, which allowed civic and charitable organizations to solicit and distribute literature inside the mall if the activity increased foot traffic at the mall and enhanced the mall’s image in the community. Salmon Run previously allowed charitable organizations, such as the Boy Scouts and the American Cancer Society, to solicit mall customers and to distribute materials, and rejected requests from a political campaign and from other applicants that competed with existing mall tenants or did not provide a benefit to the mall.

The NLRB, relying on Supreme Court precedent, held that the mall violated the National Labor Relations Act (NLRA) by denying the union permission to distribute literature inside the mall. In the cited cases, the Supreme Court held that an employer generally could exclude nonemployee union organizers from its premises unless (1) there is no reasonable alternative means of accessing the targeted employees (the “inaccessibility” exception); and (2) where the employer discriminates against the union by allowing other distribution (the “discrimination” exception). Salmon Run appealed the NLRB’s decision to the Second Circuit, which found that the inaccessibility and discrimination exceptions were applicable to nonemployee union organizers, but refused to enforce the NLRB order. In applying the discrimination exception, the Second Circuit created a new standard for determining whether a property owner discriminated against a labor organization by denying access to its property. In order to prove that a property owner has discriminatorily excluded a union from its premises, the aggrieved must show that the property owner treated the union less favorably than another individual or group communicating a message on that same subject. This standard would permit employers to allow various groups to conduct solicitation on the employer’s property while denying access for union activity.

The court noted that the NLRA generally permits property owners to refuse permission to nonemployee union organizers who wish to solicit and distribute on their property, so long as they do so in a non-discriminatory manner consistent with their state law property rights. In this case, the court found that there was no evidence that the mall had allowed another union access to convey a similar message about the mall’s tenants and there was no evidence that the mall allowed the targeted tenant to explain to mall customers its decision to use a nonunion contractor.