Recently, the NLRB issued a notice inviting interested parties to file briefs on whether an employer violates the NLRA by denying union access to its property to distribute handbills while permitting other individuals, groups, or organizations to use its property for various fundraising or solicitation activities.

The question arose from an unfair labor practice case involving Roundy’s, Inc, a grocery store operator, and the Milwaukee Building and Construction Trades Council. In 2005, the Council engaged in handbilling in front of 26 Roundy’s stores, asserting that Roundy’s was building and remodeling stores with nonunion contractors that did not pay prevailing wages and benefits. Roundy’s took measures to remove the Council members, including calling the police.

The Council then filed an unfair labor practice charge against Roundy’s, accusing the company of violating Section 8(a)(1) of the NLRA, which prohibits employers from interfering with, restraining, or coercing employees in the exercise of rights under federal labor law. The NLRB found that, in 23 stores, Roundy’s did not have a sufficient property interest to exclude the Council’s handbillers. Consequently, it found a violation of the NLRA with respect to these stores.

In two of the three remaining stores, the NLRB found that a sufficient property interest had been established. However, the evidence revealed that, at these stores, Roundy’s had permitted various organizations and individuals to solicit and distribute literature, including the Salvation Army, Boy Scouts, Girl Scouts, political candidates, and others.

To further address whether Roundy’s unlawfully excluded the Council’s handbillers at these two stores, the NLRB issued a decision and an invitation for interested parties to file briefs on one or more of the following three issues:

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

Labor professionals should take note of this decision for at least several reasons:

  1. The NLRB’s ruling could have a major effect on the extent to which an employer can limit union solicitation and distribution on property they own or control. The NLRB has long held that an employer cannot “discriminate” against union-oriented solicitation or distribution. But there has been considerable disagreement over what the term “discriminate” means in this context. A broad interpretation will mean that an employer that permits Girl Scout cookie sales but prohibits union solicitations has violated the NLRA.
  2. By referencing Register Guard, the NLRB may be setting the stage for overruling the portion of that decision that gave a narrow interpretation to the concept of discrimination. On the other hand, all four NLRB members, including the Republican appointee, joined in the decision to further explore the appropriate meaning of the term.
  3. The Register Guard case involved employee solicitation. Roundy’s prohibited solicitation by non-employees. The second question, with its reference to “this context,” suggests that the NLRB would consider applying a different standard of “discrimination” to nonemployee solicitation and distribution. What this standard may be, and how it may affect employer interests, will be important for labor professionals to monitor.
  4. Before taking action against nonemployees, make sure that the employer has the property right to do so. If the employer doesn’t have a sufficient property interest, the NLRB’s decision is an important reminder that the "discrimination" question isn't even reached.