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National Labor Relations Board, United Food & Commercial Workers International Union, Local 1442, Petitioner-Intervenor v. Pay Less Drug Stores Northwest, Inc.
Citations: 60 F.3d 834; 1995 U.S. App. LEXIS 25491Docket: 93-70928
Court: Court of Appeals for the Ninth Circuit; July 10, 1995; Federal Appellate Court
The Ninth Circuit Court of Appeals reviewed the National Labor Relations Board's (NLRB) order against Pay Less Drug Stores concerning the prohibition of union representatives from picketing in the store's outdoor sales area. The NLRB had determined that Pay Less violated Section 8(a)(1) of the National Labor Relations Act. The court upheld the NLRB's decision if it found substantial evidence and correct legal application. However, the court rejected the NLRB's assertion that California's free speech rights permitted union representatives to picket in the outside sales area, particularly after Pay Less amended its lease in April 1991 to gain exclusive rights to that area for sales purposes. The court cited previous case law affirming free speech rights in common areas of shopping centers but clarified that such rights do not extend to areas exclusively used for sales within a store's premises. Evidence presented showed that Pay Less significantly utilized the outdoor area for sales, including permanent display structures and a dedicated employee for managing the area, with a notable percentage of total sales coming from this space. The court emphasized that the NLRB misinterpreted California law and the National Labor Relations Act regarding the union's activities in this context. Consequently, the petition for enforcement of the NLRB's order was denied, and the court vacated the NLRB's decision related to the post-amendment lease period. The ruling was made by Circuit Judges Hall and Leavy, alongside District Judge Levi, with a note that this disposition is not intended for publication and should not be cited.