Last week, the National Labor Relations Board posted a Notice and Invitation to File Briefs in Case 30-CA-17185, Roundy’s Inc. and Milwaukee Building and Trades Council, AFL-CIO.

On November 12, 2010, the Board issued a Supplemental Decision and Order finding that the Employer violated Section 8(a)(1) of the National Labor Relations Act by prohibiting Council representatives from handbilling in front of 23 of its 26 stores. In so holding, the Board determined that the employer had only a non-exclusive property right to the areas where the union representatives were handbilling.

The Board severed the allegations concerning two additional store locations where the employer did possess an exclusive property right. In connection with these two locations, the General Counsel has alleged that the employer violated Section 8(a)(1) because it prohibited union access at those locations while allowing other individuals and organizations to use its premises for non-business-related activities. Thus, under the holding in Sandusky Mall Co., 329 NLRB 618, 623 (1999), enf. denied 242 F.3d 682 (6th Cir. 2001), the General Counsel argues that this discriminatory denial of access violates the Act.

The Board has invited the parties and interested amici to address the continuing viability of the Sandusky Mall standard, or preferable alternatives thereto. This in itself is noteworthy as increased union access to private employer property has been one of the more prominent developments sought by pro-labor elements following the apparent demise of the Employee Free Choice Act. It is obviously an area where a sympathetic Board majority can effectuate change in the absence of legislative action.

But the third question posed by the Board is also intriguing:

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?

Most people associate the Register Guard case with the permissible scope of an employer’s e-mail and internet usage policy as it pertains to union activity. As we have noted previously, repeatedly and recently, Chairman Liebman and the current Board are likely to overturn that portion of the Register Guard holding at their earliest opportunity. But Register Guard also announced what many saw at the time as a departure from the Board’s standards in analyzing discriminatory application of any workplace policy. The Board announced:

[A]n employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and nonbusiness-related use. In each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines.[] For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.

The Court of Appeals for the D.C. Circuit, however, refused to enforce that portion of the Board’s Order. The Board’s solicitation of positions on this reasoning, however, indicates a clear desire to restate Board law on this point. So, the ultimate holding in the Roundy’s case may have application to a far broader range of allegations of discriminatory conduct by employers against union activity.

Briefs not exceeding 25 pages in length may be filed with the Board in Washington, D.C. on or before December 13, 2010.