Court rules against union 2003 INCIDENT: Salmon Run Mall justified in refusing Local 747 handouts By RACHAEL HANLEY TIMES STAFF WRITER WEDNESDAY, JULY 30, 2008

A federal appeals court has overturned a ruling by the National Labor Relations Board that would have permitted a carpenters union to distribute literature at Salmon Run Mall.

In the July 18 ruling, the U.S. 2nd Circuit Court of Appeals found that mall managers did not discriminate against the Empire State Council of Carpenters and Local 747 when they denied the union's request to set up a table in the mall and hand out literature in 2003.

"The standard for assessing discrimination must take account of the general rule that a private property owner need not provide a forum for expression on its property and may be arbitrary and inconsistent in its selection of speakers," the three appeals court judges wrote in their decision.

At issue, Christian P. Jones said, was whether the Salmon Run policy, to allow access only where it would increase foot traffic or enhance the mall's reputation, was discriminatory.

The NLRB focused on the motive of mall managers and said yes. The federal court examined the overall policy and said no.

Mr. Jones, a labor and employment law attorney for the Syracuse firm MacKenzie Hughes, represented Salmon Run Shopping Center LLC in the case. The limited liability company, which owns the mall, is a subsidiary of Pyramid Cos., Syracuse.

"The analysis should be: Did the mall treat the union any differently than they treated any other organization who wanted to speak on the same subject," Mr. Jones said. "The answer in this case was no."

The case can be traced back to 2003, when a contractor for Dick's Sporting Goods hired a subcontractor to remodel the mall tenant's space.

In August, a day before the new Dick's store was set to open, a representative from the carpenters union asked mall managers if he could set up a table to distribute literature. According to court documents, the subcontractor employed nonunion carpenters.

In a later hearing on the subject, the union representative said his literature included handouts criticizing the employment practices of both Dick's and the subcontractor. The handouts also included information on the potential benefits of joining Carpenters Local 747.

According to excerpts of her letter, which were included in the federal court decision, mall manager Mary P. Dudo denied the union's request to set up a table for their literature.

"We welcome civic, charitable, or other organizations to solicit in the common areas of the mall when the solicitation will benefit both the organization and our tenants," she wrote. "Based on these criteria, we are unable to grant your application at this time."

Ms. Dudo could not be reached for comment Tuesday, but Mr. Jones said the decision was justified by the mall's stance on solicitation.

"The mall had not permitted competing unions to distribute organization literature," he said. "Nor had the mall allowed someone from Dick's or the contractors into the mall to defend the use of nonunion carpenters."

In November 2003 and January 2004, following denials for space at the mall, the carpenters union filed complaints with the National Labor Relations Board.

The case was brought before an administrative law judge, who ruled that Salmon Run Mall was in violation of the National Labor Relations Act for refusing to allow the union access.

A three-member panel of the NLRB issued a cease-and-desist order in 2006 after similarly concluding that the "mall operator had excluded the Carpenters' Union from its property because it was a labor organization and thereby had engaged in an unfair labor practice," according to court documents.

In the July ruling, the appeals court agreed that the literature had been aimed at employee rights to self-organization, but concluded that the argument of discrimination was not reasonable.

"Because we conclude that the facts do not amount to discrimination under a properly framed standard, we deny enforcement of the Board's order," the judges wrote.

 

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