Friday, November 19, 2010
In a recent press release, the NLRB has indicated that it might reconsider part of its Register-Guard decision. No, not the more high-profile part dealing with electronic communications. It's the more important part: the Board's significant narrowing of the meaning of "discrimination" in electronic communications and Lechmere cases. According to the release:
The National Labor Relations Board invites interested parties to file briefs in a case involving nonemployee access to Pick’n Save retail locations operated by Roundy’s Inc., in the Milwaukee area.
The Milwaukee Building and Construction Trades Council distributed handbills in the common areas (sidewalks and parking lots) in front of 26 Roundy’s stores asking consumers not to patronize the shops, alleging that Roundy’s employed nonunion contractors that did not pay prevailing wages and benefits to build and renovate its stores. The picketing was peaceful and did not interfere with access to or egress from the stores. Roundy’s contacted the police in an effort to have the handbillers expelled.
The Board reached a decision (356 NLRB 027) on November 12, 2010 adopting an administrative law judge’s supplemental finding that, at 23 of its store locations, Roundy’s possessed only a nonexclusive easement in the areas from which it attempted to expel the handbillers. Accordingly, the Board found that Roundy’s unlawfully prohibited handbilling in front of those stores.
The Board severed allegations involving handbilling at two other store locations (West Bluemound Road in Milwaukee, WI and West Capitol Drive in Brookfield, WI) where the General Counsel conceded that Roundy’s possessed a sufficient property interest in the areas from which it attempted to expel handbillers. The Board retained these allegations for further consideration in order to determine whether Roundy’s prohibition of handbilling by nonemployee union agents at these locations while permitting nonunion solicitations and distribution to occur on the same property was unlawful.
As the formal invitation for briefs implies, there are at least three possible approaches here: apply Register-Guard's discrimination definition to Lechmere cases (which at least one ALJ has done, and which seems an appropriate interpretation of Register-Guard); reverse Register-Guard's discrimination definition; or keep Register-Guard, but don't apply it to Lechmere cases. The three question raised by the invitation are:
1. In cases alleging unlawful employer discrimination in nonemployee access, should the Board continue to apply the standard articulated by the Board majority in Sandusky Mall Co.?
2. If not, what standard should the Board adopt to define discrimination in this context?
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?
As is no surprise given my work arguing for the importance of electronic and other workplace communications (for shameless self-promotion, see here, here, and here), I'd vote for option #2, but it's not clear that the NLRB wants to go that far in this case. We'll just have to see.