As we have covered extensively on this blog, the National Labor Relations Board continues to seek out opportunities to effectuate pro-labor initiatives and overturn Bush-era Board holdings.  Indeed, the current Obama Board has never been shy about its expansive views pertaining to Section 7 rights under the National Labor Relations Act.  The present NLRB has both informally voiced and evidenced through its decisions an overt willingness to promote union access efforts.  Now, it seems that employers may also need to be wary of more “creative” (and less publicized) means by which the Board is seeking to achieve its agenda items.

The Board recently issued a decision in Roundy’s Inc., 356 NLRB No. 27 (November 12, 2010).  The issue was whether the employer lawfully prevented non-employee union representatives from handbilling on claimed private property.  Specifically, union advocates were publicizing a dispute between the union and employer over the use of contractors; the union alleged the contractors were not applying area wage standards.  In response, the employer prevented the distribution of handbills at 26 of its store locations.  Initially, the Administrative Law Judge found that the company had, indeed, violated Section 8(a)(1) of the NLRA by its refusal to permit the union agents’ handbilling activities at the various stores.  The case, however, was remanded by the NLRB (which, at that time, was a Bush Board) to permit further evidence regarding the employer’s claim that it had a property interest that afforded it the legal right to exclude the union agents from the places where they were engaged in handbilling.

On remand, the ALJ again found 8(a)(1) violations, concluding that the employer failed to establish an exclusionary property interest at 23 of its store locations.  With respect to two other store locations, the ALJ re-affirmed his prior decision, but not based on the Respondent’s lack of a property interest.  Instead, he held that the 8(a)(1) violations were triggered by “unlawfully discriminating against the [union]” at those stores under Sandusky Mall Co., 329 NLRB 618 (1999).  In Sandusky, the Board split 3-2 in deciding that a shopping mall owner violated Section 8(a)(1) by prohibiting union representatives from handbilling on its property after allowing charitable, civic, and other groups to solicit.

In the November 12 Roundy’s decision, the Board affirmed the ALJ’s findings regarding the 23 stores.  However, it is what the Board did with the other two stores that is particularly noteworthy.  The decision orders that the allegations involving the two stores be severed from the case and retained for further consideration.  Then, to further raise some discerning eyebrows, the Board expressly notes that it is “inviting all interested parties to file briefs regarding the question of what legal standards the Board should apply in determining whether an employer has violated the Act by denying nonemployee union agents access to it premises while permitting other individuals, groups . . . to use its premises . . . .”  Related to this “call for briefs,” the NLRB’s official website now has posted in its News Room Directory a public Invitation to File Briefs regarding the Roundy’s case.  The request for briefs seeks positions pertaining to whether the Sandusky standard should continue to apply in cases alleging unlawful employer discrimination in nonemployee access cases.  This, in and of itself, should be of concern to employers because of the Obama Board’s potential desire to tweak or redesign the Sandusky standard.  However, we also believe that there are other -- perhaps even more significant -- potential considerations warranting a close watch of where this case proceeds.  The NLRB’s request for viewpoints is not limited to simply the Sandusky standard.  Instead, the Board’s notice unequivocally states that the NLRB is also interested in briefs regarding “[w]hat bearing, if any, does Register Guard (351 NLRB 1110) have on the Board’s standard for finding unlawful discrimination in nonemployee access case?”  We have previous discussed the controversy surrounding Register Guard, in which the Board held that an employer may lawfully prohibit its employees from using their employer's e-mail system for organizing activities.  Indeed, the decision remains at the forefront of the Bush Board decisions that Chair Wilma Liebman and her newly appointed NLRB colleagues desperately want to overturn.  Thus, the NLRB’s reference to seeking briefs about Register Guard in the Roundy’s case should not be ignored. 

Briefs not exceeding twenty-five (25) pages in length will be accepted by the Board in Washington, D.C. on or before December 13, 2010.

photo credit: Chris Scredon