Roundy's Inc. v. National Labor Relations Board
674 F.3d 638
7th Cir.2012Background
- Union protested Roundy's use of nonunion contractors and circulated handbills outside Pick 'N Save stores.
- Roundy's held nonexclusive easements in the common areas of 23 stores where handbilling occurred.
- Roundy's ejected union handbillers; the General Counsel alleged 8(a)(1) violations for discriminatory handbilling.
- ALJ initially found a violation under Section 8(a)(1) but the Board remanded to assess whether Roundy's had a sufficient property interest to exclude handbillers.
- On remand, the ALJ found no sufficient property interest at 23 stores; Board affirmed; two stores remained with disputed results and were severed.
- The Seventh Circuit upheld the Board’s conclusion that Wisconsin law does not grant Roundy's an exclusionary property right, validating the 8(a)(1) violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Remand authority on the property-right theory | Board lacked notice to pursue unpled theory; due process concerns. | Board properly remanded as issue closely connected to complaint and threshold burden. | Remand was proper; Board acted within its discretion. |
| Exclusion of expert testimony on Wisconsin property law | Ostermeyer should be allowed to testify as an expert on property rights. | ALJ properly excluded expert legal conclusions; counsel can argue Wisconsin law in briefs. | No abuse of discretion; exclusion proper. |
| 8(a)(1) liability where nonexclusive easement holder excludes handbillers | Roundy's cannot be liable if it lacks exclusionary rights under the easements. | Lechmere framework applied; property rights determine ability to exclude. | Roundy's nonexclusive easement did not confer exclusionary rights; 8(a)(1) violation established. |
| Wisconsin property-law standard for exclusion | Nonexclusive easement owners should have broad exclusion rights comparable to owners. | Nonexclusive easement does not grant possessory control to exclude. | Wisconsin law does not permit exclusion; Board's application is rational and supported by evidence. |
Key Cases Cited
- NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (Supreme Court, 1956) (nonemployee access limitations and core Lechmere-Babcock framework)
- Lechmere, Inc. v. NLRB, 502 U.S. 527 (Supreme Court, 1992) (limits on nonemployee union access to private property)
- Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (Supreme Court, 1994) (NLRA rights not superseding private property rights)
- Calkins d/b/a Indio Grocery Outlet, 323 NLRB 1138 (1997) (threshold burden to show exclusionary property interest under state law)
- O'Neil's Markets v. NLRB, 95 F.3d 733 (8th Cir., 1996) (nonexclusive easement does not authorize exclusion of protestors)
- Glendale Assoc. v. NLRB, 347 F.3d 1145 (9th Cir., 2003) (easement rights and exclusionary interests under state law)
- Weis Markets, Inc. v. NLRB, 265 F.3d 239 (4th Cir., 2001) (easement rights to exclude handbillers under Pennsylvania law)
- Logan Valley Plaza, Inc. v. Amalgamated Food Emps. Union, Local 590, AFL-CIO, 227 A.2d 874 (Pa. 1967) (easement invited public extent and property rights analysis)