On November 12, 2010, while deciding Roundy’s Inc. v. Milwaukee Building and Construction Trades Council, the National Labor Relations Board (Board) invited interested parties to file briefs to determine whether or not an employer violates the National Labor Relations Act (NLRA) if it denies nonemployee union representatives access to its property while still allowing other individuals, groups, or organizations use of the premises. 189 LRRM 1346 (N.L.R.B. 2010).

In Roundy’s Inc., nonemployee union representatives participated in peaceful handbilling outside twenty-six (26) Roundy’s Inc. stores. The nonemployee union representatives were protesting Roundy’s use of nonunion contractors to build, expand, and remodel stores. In response, Roundy’s company officials called the police to remove the protesters from the property. The union representatives then filed an unfair labor practices charge against Roundy’s, alleging a violation of Section 8(a)(1) of the NLRA.

On February 8, 2006, an Administrative Law Judge, Robert A. Giannasi, found Roundy’s did violate Section 8(a)(1) of the NLRA when it prohibited nonemployee union representatives from distributing handbills on its property.  However, on September 11, 2006, the case was remanded by the Board in order to give Roundy’s a chance to establish a property interest that would have allowed them to expel the union representatives. On March 28, 2007, Judge Giannasi issued a supplemental decision, holding Roundy’s did not establish a property interest in twenty-three (23) of the twenty-six (26) stores. The Board agreed with Judge Giannasi’s findings regarding the twenty-three (23) Roundy’s stores, and found Roundy’s violated Section 8(a)(1) of the NLRA when they prohibited the handbilling at those locations.

Judge Giannasi notes in his opinion that there were two (2) store locations for which there was no violation under the property-interest theory. However, he held Roundy’s actions still violated Section 8(a)(1) of the NLRA under Sandusky Mall Co., which was overturned by the Sixth Circuit. 329 NLRB 618 (1999), enf. denied 242 F.3d 682 (6th Cir. 2001).  Therefore, the Board reserved ruling regarding Roundy’s conduct at those two (2) locations.

In its’ invitation for briefs, the Board offered three questions:

1. In cases alleging unlawful employer discrimination in nonemployee access, should the Board continue to apply the standard articulated by the Board majority in Sandusky Mall Co. . . . ?
2. If not, what standard should the Board adopt to define discrimination in this context?
3. What bearing, if any, does Register Guard, 351 NLRB 1110 (2007), enf. denied in part 571 F.3d 53 (D.C. Cir. 2009), have on the Board’s standard for finding unlawful discrimination in nonemployee access cases?

Notice and Invitation to File Briefs, Roundy’s Inc. v. Milwaukee Bldg. & Constr. Trades Council, Case No. 30-CA-17185 (N.L.R.B. Nov. 12, 2010). Amicus briefs were to be filed with the Board on or before December 13, 2010, and parties had until December 28, 2010 to file a responsive brief.  After all briefs are received, the Board will enter a supplemental decision regarding the two (2) other Roundy’s locations.