Roundy’s Inc. operates grocery stores throughout southeastern Wisconsin under the name Pick ‘N Save. Milwaukee Building and Construction Trades Council, AFL-CIO (the Union), a central body of construction industry local unions in the Milwaukee area, met with Roundy’s to discuss its concerns that Roundy’s was using nonunion contractors who didn’t pay employees the prevailing area standard wages in the construction and remodeling of its stores. Unsatisfied with Roundy’s response (Roundy’s took the position that the selection of contractors was up to its landlords, but the administrative law judge (ALJ) found that Roundy’s had some control over the selection process), the Union protested and urged a consumer boycott of Roundy’s stores. Union representatives stood outside Roundy’s stores in the common areas to distribute handbills accusing Roundy’s of saving money by using cheap labor to build and remodel its stores and not passing those savings on to its customers, asking customers not to patronize Pick ‘N Save, informing customers that they would achieve savings by shopping at competitor stores, pointing out price differences in Roundy’s products with competitors, and even handing out coupons for competitors’ products. Needless to say, the handbills were extremely unflattering to Roundy’s, some even pictured a rat to represent the company. In response,
The General Counsel for the National Labor Relations Board (Board) issued a complaint against Roundy’s alleging that it violated Section 8(a)(1) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1), for its discriminatory practice of prohibiting the Union from handbilling while permitting nonunion solicitations and distributions on the property. After an evidentiary hearing before an ALJ on the discrimination theory, the Board remanded for the ALJ to consider whether Roundy’s, as a lessee with nonexclusive easements in the common areas where the Union was handbilling, held a sufficient property interest under Wisconsin law to oust nonemployee handbillers. Upon rehearing, the ALJ found that as a nonexclusive easement holder at 23 of the stores at issue, Roundy’s did not have a state property right to exclude the handbillers, and thus, Roundy’s violated the Act by preventing the Union from engaging in protected Section 7 activities, 29 U.S.C. § 157, at those locations. The Board affirmed, adopting the ALJ findings and conclusions in this respect. We agree with the Board’s interpretation of Wisconsin law and find that the Board’s application of this law to Section 8(a)(1) of the Act had a reasonable basis in law. Thus, we deny Roundy’s petition for review and grant the Board’s cross-petition for enforcement of its order.
I. Facts
From April to June 2005, Union representatives distributed informational handbills in front of 26 Roundy’s stores around the Milwaukee metropolitan area. Some of the stores are free standing and others are in shopping malls. For reasons explained below, this appeal only concerns 23 of those stores where Roundy’s had entered into leases for the stores and held nonexclusive easements over the common areas, including the private sidewalks in front of the stores and parking lots, where the handbilling took place. The handbilling was peaceful; the Union representatives didn’t picket and the ALJ found no evidence that they obstructed or interfered with customers’ access to or egress from the stores. The Union urged a consumer boycott of Roundy’s stores for its alleged use of contractors who did not adhere to area wage standards. As we noted, the handbills were extremely unflattering to Roundy’s, and as a result, Roundy’s took efforts to expel the protestors, in some instances, calling the police.
The parties stipulated to the relevant lease terms and property interests at each of the store locations. The nonexclusive easements generally permit use of the common areas by Roundy’s and its customers, employees, and invitees, as well as the landlord and other tenants of the shopping centers, and their customers, employees, and invitees. For example, a majority of the store leases contain the following provision:
Tenant is hereby granted a nonexclusive easement, right and privilege for itself and its customers, employees and invitees and the customers, employees and invitees of any subtenant, concessionaire or licensee of Tenant to use the [common areas] without charge with Landlord and other tenants and occupants of the Shopping Center and their customers, employees and invitees; provided, however, no use of the [common areas] shall be made which detracts from the first-class nature of the Shopping Center or obstructs access to or parking provided for customers of the Shopping Center.
(emphasis added). A few leases provide that the easement shall be used for all customary and proper purposes. Numer
The leases also contain language setting forth either Roundy’s or the landlord’s maintenance obligations with respect to the common areas. A number of the leases require the landlord to maintain the common areas “in accordance with good shopping practice,” but most also require Roundy’s to pay its proportionate share of those expenses. Other leases require Roundy’s to pay all costs and expenses for maintaining the common areas; a few leases require Roundy’s to operate and maintain the common areas “in accordance with good real estate practice”; and another gives Roundy’s the right to take over the landlord’s common area responsibilities, but there is no evidence that Roundy’s agreed to take on those responsibilities. None of the leases provide Roundy’s with explicit authority to eject trespassers or other unwanted parties from the common areas. 1
Brian Pikalek, Roundy’s loss prevention district manager, supervises security issues for part of Roundy’s operations. He testified that it’s Roundy’s practice to exclude what he described as “undesirable” visitors, such as panhandlers, drunks, skateboarders, handbillers, or vagrants, from the common areas in front of Roundy’s leased stores. Such “undesirables” are asked to leave the property; if they do not leave, the police are called to remove them. It has never been Roundy’s practice to consult with the landlord either before or after ejecting individuals from the common areas and no evidence was presented that the landlords were aware of Roundy’s practice of ejecting third parties from the common areas.
II. Procedural History
The Board’s General Counsel issued a complaint against Roundy’s alleging that it violated Section 8(a)(1) of the Act by prohibiting the Union representatives from handbilling on property owned or leased by Roundy’s while permitting nonunion solicitations and distributions on such property. Before the first administrative hearing, the parties stipulated to the events that occurred at each store. At the initial hearing, neither party presented evidence to show that Roundy’s possessed a sufficient property interest to interfere with the Union’s handbilling on the subject properties. The ALJ asked the General Counsel whether the parties’ joint stipulation meant that handbilling took place on property owned by Roundy’s. He answered “yes.” At that time, the General Counsel had not yet received the leases it had subpoenaed from Roundy’s and didn’t receive the leases until after its case-in-chief.
As discovered later, Roundy’s only held nonexclusive easements in the common areas of the 23 stores at issue in this appeal. In his post-hearing brief, the General Counsel argued that Roundy’s interference with the Union’s handbilling violated the Act notwithstanding its discriminatory intent because Roundy’s failed to meet its burden of proving an exclusionary property interest at the locations where handbilling took place. The parties refer to this as the “property right” theory. The ALJ rejected this argument because the General Counsel had not raised the property right theory during the hearing and instead, alleged in the complaint that the
The gravamen of the complaint was that [Roundy’s’] prohibition of the handbilling was unlawful because it permitted similar activity by nonunion entities on that same property. This is essentially a disparate treatment theory, and the theory upon which the case was tried. The parties assumed at all stages of this litigation that [Roundy’s] had a property interest sufficient to oust the handbillers. Indeed, the General Counsel’s basic argument was that [Roundy’s], having such property interest, permitted similar conduct by nonunion entities. It is too late now — and a potential due process problem — for the General Counsel to change the theory of the case on brief.
The ALJ issued its decision finding that Roundy’s violated Section 8(a)(1) of the Act by discriminatorily preventing union agents from distributing handbills.
The General Counsel filed an exception to the ALJ’s refusal to find a violation on the property right theory. The Board acknowledged that the issue of Roundy’s property interest appeared to be uncontested during the hearing but found that the existence of a sufficient property interest to exclude is a threshold burden that the employer must meet. Because Roundy’s reasonably believed that it did not need to prove its property interest during the hearing before the ALJ, the Board remanded for further factual development.
On remand, the ALJ allowed the parties to present evidence on the property right theory, and at the conclusion of the hearing, the parties expressed satisfaction that the record was complete. The ALJ issued a supplemental decision finding that Roundy’s lacked a sufficient property interest at 23 of the 26 stores, and thus, Roundy’s’ interference with the handbillers at those locations violated Section 8(a)(1). The Board issued a supplemental decision affirming the ALJ’s findings in this respect. The ALJ dismissed the General Counsel’s claims as to one store, which the General Counsel doesn’t dispute. The ALJ found that Roundy’s had a sufficient property interest at the remaining two stores, but nonetheless found that Roundy’s violated Section 8(a)(1) at those locations under the discrimination theory. The Board severed those stores and they are not part of this appeal.
Roundy’s also filed an exception with the Board because of the ALJ’s refusal to hear expert testimony from Michael Ostermeyer, a Wisconsin lawyer specializing in real property matters, who sought to opine about Wisconsin property law on easements. The ALJ informed Roundy’s that it could simply incorporate Mr. Ostermeyer’s legal analysis in its argument. The Board found that the ALJ acted within his discretion to exclude Mr. Ostermeyer’s testimony.
III. Analysis
We have jurisdiction to review the Board’s order pursuant to Section 10(e) and (f) of the Act, 29 U.S.C. § 160(e) and (f). In reviewing the Board’s decision, we give substantial deference to both its findings of fact and its interpretations of the Act.
Naperville Ready Mix, Inc. v. NLRB,
We defer to the Board’s interpretation of the Act unless its legal conclusions are “irrational or inconsistent with the Act.”
United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO v. NLRB,
Where the Board adopts the ALJ’s findings of fact and conclusions of law, as it did in relevant part here, we review the ALJ’s determinations.
See SCA Tissue N. Am. LLC v. NLRB,
A. Remand for Further Proceedings
Roundy’s argues that the Board erred in remanding the case for further evidence on the General Counsel’s property right theory because this theory was not raised in the complaint or during the hearing before the ALJ. In fact, during the initial hearing, the General Counsel informed the ALJ that Roundy’s owned the properties. The Board, however, reasoned that Roundy’s had the threshold burden of demonstrating a sufficient property interest entitling it to exclude handbillers, so it remanded the case to afford Roundy’s an opportunity to meet that burden. 2
We find that the Board acted within its discretion in remanding the case for further development of the property right theory. The Second Circuit recently addressed a similar issue in
Service Employees International Union, Local 32BJ v. NLRB,
We follow the reasoning of the Second Circuit and find that the Board acted within its discretion in remanding the property right theory, which is closely connected to the subject matter of the underlying complaint. The Board concluded that “the existence of a sufficient property interest is a threshold burden that the employer must carry in order to show that it is entitled to exclude others from the property in question,” citing
Calkins d/b/a Indio Grocery Outlet,
We emphasize that the Board had
discretion
to remand and could have concluded that General Counsel was barred from raising the issue.
See Laborers Local 190 (VP Builders, Inc.),
We, however, uphold the Board’s decision to remand given that Roundy’s had the burden to show it possessed an exclusionary property interest as a threshold matter (more on this later), this issue was closely connected to the subject matter of the underlying complaint, and Roundy’s was afforded a full and fair opportunity to present argument on this issue on remand.
B. Exclusion of Expert Witness
Roundy’s asserts that it was prejudicial error to exclude its expert, Mr.
We review the Board’s evidentiary rulings for abuse of discretion.
See NLRB v. Domsey Trading Corp.,
Legal arguments are costly enough without being the subjects of “experts” depositions and extensive debates in discovery, in addition to presentations made directly to the judge. If specialized knowledge about tax or demutualization would assist the judge, the holders of that knowledge can help counsel write the briefs and present oral argument. In this court each side is represented by two law firms, and a professor of law also has signed plaintiffs’ briefs. Enough!
RLJCS Enters., Inc. v. Prof. Benefit Trust Multiple Emp’r Welfare Benefit Plan & Trust,
The court’s reasoning in
RLJCS
is particularly instructive here. Mr. Ostermeyer’s opinion as to Wisconsin property law amounts to legal arguments that should be presented to the court in counsel’s analysis, not expert opinion testimony. The ALJ instructed Roundy’s to include Mr. Ostermeyer’s interpretation of Wisconsin state property law in its brief and Roundy’s presumably heeded this instruction. As such, we find not only no abuse of discretion, but also no prejudice.
See
C. Violations of Section 8(a)(1)
The General Counsel asserts that Roundy’s violated Section 8(a)(1) of the Act by ousting the Union handbillers, who were engaged in protected Section 7 activity, from private property because Roundy’s didn’t have an exclusionary right under its nonexclusive easements. Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7].... ” 29 U.S.C. § 158(a)(1). Section 7 of the Act provides that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
Nonemployee organizers are subject to far greater restrictions with respect to their right to access private property than employee organizers.
See generally NLRB v. Babcock & Wilcox Co.,
However, an employer has no right under the
Babcock/Lechmere
framework to exclude union representatives engaged in Section 7 activity from areas where it lacks an exclusionary property interest.
O’Neil’s Markets,
Courts have found, as consistent with
Lechmere,
that an employer must have a property right to exclude even non-employee protestors that are engaged in nonorganizational activities directed at consumers.
See, e.g., O’Neil’s Markets,
Roundy’s urges us to place the burden on the General Counsel to show that Roundy’s did not have an exclusionary property interest,
4
stating that a careful reading of
Lechmere
reveals that it does not require the employer to prove an exclusionary interest in cases involving nonemployee union solicitors. The Board however, since
Lechmere,
has consistently required the employer to meet a threshold burden of establishing “that it had at the time it expelled the union representatives, an interest which
entitled
it to exclude individuals from the property.”
See Calkins,
Other circuit courts agree with this rationale, explaining that “when an employer lacks an interest entitling it to exclude individuals engaged in Section 7 conduct, Lechmere’s accommodation analysis is not triggered.”
Calkins,
The Board’s rule that the employer must meet a threshold burden of showing a sufficient property interest to invoke the
Lechmere
framework (even in cases
Because the Board has no specialized expertise in interpreting state property law, we review this issue de novo.
See United Food,
Roundy’s doesn’t dispute that the leases only gave it nonexclusive easements in the common areas. Where the easement grant doesn’t expressly make it exclusive, the easement holder “does not
acquire dominion over the property affected, but is entitled ‘only to a reasonable and usual enjoyment thereof.’ ”
Lintner v. Office Supply Co.,
Roundy’s also argues that Wisconsin statutory law provides even nonexclusive easement owners with a civil action to oust those that interfere with the use and enjoyment of the easement, citing to Wis. Stat. §§ 840.01
et seq.
and Wis. Stat.
Section 844.01(1), however, doesn’t create an independent cause of action; it is a remedial and procedural statute that sets forth the remedies available when a cause of action exists.
See Menick v. City of Menasha,
Roundy’s’ reliance on Section 844.01 is therefore misplaced. Roundy’s must show under Wisconsin common law that it had a sufficient property interest to oust the handbillers. Wisconsin courts have maintained that “[a] written easement holder has the right to use the easement in accordance with the express terms of the easement grant.”
Grygiel v. Monches Fish & Game Club, Inc.,
Because Roundy’s has rights to the extent of its nonexclusive use in the easements, it can enjoin third parties when they unreasonably interfere with this use.
See id.
at 285 (stating that owner of property may not unreasonably interfere with easement holder’s use);
see also Lintner v. Augustine Furn. Co.,
A few leases indicate that the “the easement shall be used for all customary and proper purposes” and others state that “no use of the [common areas] shall be made which detracts from the first-class nature of the Shopping Center.... ” Still others require the landlord or tenant to maintain the common areas “in accordance with good shopping practice.” The easements are clearly intended to provide Roundy’s, its employees, customers, and invitees (and the other tenants’ employees, customers, and invitees) with ingress and egress to the stores, but are not so limited; rather, they are intended for use in a manner conducive to the commercial businesses that share those areas. The ultimate question, therefore, is whether the handbillers’ actions unreasonably interfered with this purpose of the easements? To answer this question, it is helpful to look at other circuit court decisions addressing similar questions under the laws of various states.
The Eighth Circuit in
O’Neil’s
found that the nonexclusive easement granted to O’Neil’s didn’t provide it with direct authority to exclude persons from the sidewalk in front of its store.
The D.C. Circuit similarly found that a nonexclusive easement didn’t provide the employer with the right to oust handbillers from outside its storefront.
See United Food,
The Fourth Circuit, analyzing Pennsylvania law, came to a different conclusion in
Weis Markets, Inc. v. NLRB,
Even if Pennsylvania provides easement owners with rights akin to property owners for purposes of excluding unwanted visitors, as found in
Weis, see also Kao v. Haldeman,
Because nonexclusive easement holders do not have property rights comparable to owners or lessees under Wisconsin law (they do not hold possessory interests), the
Babcock/Lechmere
framework doesn’t apply, and the Board had to determine how such intermediate property rights intersect with Section 7 rights. The Board’s finding that Roundy’s’ property rights under Wisconsin law were insufficient to override the nonemployees’ Section 7 rights was reasonable. The Board is entitled to a certain degree of deference when engaging in such line drawing in the context of labor relations under the Act.
See Lineback v. Irving Ready-Mix, Inc.,
It was Roundy’s burden to prove that it had a state property interest sufficient to oust the nonemployee handbillers. We conclude that Roundy’s has not met that burden, that the Board’s factual findings were supported by substantial evidence, and that the Board’s legal conclusion — that a store owner who has only a nonexclusive easement in the common areas violates Section 8(a)(1) when excluding peaceful, nondisruptive handbillers engaged in protected Section 7 activities — is rational and consistent with the Act.
IY. Conclusion
For the foregoing reasons, Roundy’s petition for review is Denied and the Board’s cross-petition for enforcement of its order is Granted.
Notes
. The ALJ provided a detailed discussion of the Union’s conduct at each store and the lease terms of the individual stores. Although we rely on these findings, we find it unnecessary to set them out in detail here.
. The General Counsel argues that we cannot consider this argument because Roundy's failed to object to the Board’s remand order. Although a party before the Board can, "because of extraordinary circumstances,” file for reconsideration and state "with particularity the material error claimed,” 29 C.F.R. § 102.48(d)(1), a motion for reconsideration need not be filed to exhaust administrative remedies,
see
29 C.F.R. § 102.48(d)(3). The procedures in Section 102.48(d) are not mandatory; they help to ensure that the Board has adequate notice of objections.
See NLRB v. Wayne Transp., a Div. of Wayne Corp.,
. Roundy’s states in a conclusory manner that "General Counsel did not carry its initial burden of showing that the Council’s handbillers were engaged in activity protected by Section 7.” Roundy’s argument, consisting of one sentence, is undeveloped and not supported by pertinent authority, and therefore waived.
Argyropoulos v. City of Alton,
. Roundy’s points out that some former Board members have taken the minority position that the respondent should have the initial burden of merely showing a colorable property right, with the burden then shifting back to General Counsel to prove that the respondent lacked an exclusionary interest.
See Farm Fresh, Inc.,
. The ALJ found that Roundy’s, as easement holder, lacked a possessory interest, precluding it from bringing a trespass action under Wisconsin Statute § 943.13(1m)(b). Wisconsin makes it a violation for an individual to enter or remain "on any land of another after having been notified by the owner or occupant not to enter or remain on the premises.” Wis. Stat. § 943.13(1m)(b) (emphasis added). The statute does not define "occupant” and we are not aware of any Wisconsin case that addresses whether a grantee of a nonexclusive easement is an "occupant” under the statute. We do not need to resolve this issue because Roundy’s concedes (for the sake of argument) that the ALJ correctly determined that Roundy’s wasn’t an "occupant” under Wisconsin’s trespass statute.
. The statute states that no remedy shall be denied on the ground that the plaintiff is not in possession unless a statute requires possession. See Wis. Stat. § 840.04. However, a person who does not have possession cannot bring an action under that chapter without first notifying the person with possession and alleging that the person with possession refuses to bring the action. See Wis. Stat. § 844.15(2). The person with possession must be joined as a defendant. See id.