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Union fight pits rights of free speech, private land

- The Washington Times - Thursday, January 12, 2012

With a full complement of members after President Obama's recent recess appointments, the National Labor Relations Board could soon rule on a closely watched labor law case with major implications for property rights, union organizing tactics and even what workers can write about on their company email accounts.

In 2005, Roundy's Supermarkets Inc., ordered members of the company's construction union, the Milwaukee Building and Construction Trades Council, to leave its parking lots for urging customers to boycott the stores and shop elsewhere in the midst of a fierce labor dispute.

The union was upset that nonunion contractors, which the union claimed was not paying prevailing area standard wages and benefits, were building stores and expanding or remodeling existing stores for the Milwaukee-based chain.

The union set up protests in the parking lots at 26 Roundy's stores, both leased and company-owned sites. Protesters distributed handbills and offered coupons redeemable at competitor grocery stores.

After Roundy's officials ordered police to remove protesters who were not company employees, the union filed a complaint with the NLRB. The case has bounced between an administrative law judge and the agency, and legal analysts say the NLRB could issue a ruling this year. The agency declined to comment because the decision is pending.

Labor and management groups are closely watching the case, which pits basic rights to free speech and public protest against equally fundamental rights regarding private property.

The ruling is likely to set precedents for organizing battles.

"The union not only came onto the property to protest, they very specifically urged customers to shop elsewhere," said Michael Lotito, a partner at Jackson Lewis LLP, a Virginia-based law firm that often represents management interests in labor cases. "[The company] would throw anybody off, including the Girl Scouts, if they told their customers to shop elsewhere."

Most Roundy's stores are on leased property, but the NLRB case has focused on two company-owned sites.

Backers of the union argue that Roundy's routinely allowed community organizations to solicit and distribute literature on company property. The grocery chain has allowed Salvation Army bell ringers to raise money, the Red Cross to collect donations, and Boy Scout and Girl Scout troops to sell popcorn and cookies for fundraisers.

The union used these examples to argue that the store discriminated against it when its organizers were singled out and evicted. If one group was allowed on company property, it said, all groups should be given the same opportunity. In a 1999 case, the NLRB held that Sandusky Mall, an enclosed mall in Ohio, discriminated against its union by not allowing organizers on company property after other groups had been allowed to do so.

"If they're going to allow various community groups," said Lyle Balistreri, president of the Milwaukee Building and Construction Trades Council, "they need to give access to everybody."

Mr. Lotito called that an "apple-to-orange" comparison. He and other supporters say Roundy's should not be forced to allow unions to attack it on its own property. They argue that the NLRB should look at the type of activity the grocery store allows on company property, not just the fact that it gives some groups access.

"Since they've never permitted anybody to come onto their property and say, 'Customers, shop elsewhere,' there's no discrimination with telling this group not to," Mr. Lotito said.

Nelson Cary, a partner at Vorys, Sater, Seymour and Pease LLP, an Ohio-based law firm that publishes a blog about labor law, is concerned that a ruling in favor of the union will lead businesses to cut off access to all groups, including charities and community groups.

"Some employers will react to that by banning all types of solicitations, because they don't want to allow the unions access to their property," he said.

The case also could overturn a precedent on workplace email policies. In 2007, the NLRB found that the Register-Guard, a daily newspaper in Eugene, Ore., was within its rights to prevent employees from sending union-related emails, while allowing them to send other personal emails. But the Roundy's case might call into question that kind of distinction.

"The concern is the board will use Roundy's as a vehicle to reverse [the Register-Guard] decision," Mr. Lotito said. "If the board uses this for broader email restrictions, then, obviously, the case takes on tremendous significance."

Ronald Meisburg, a partner at New York-based Proskauer Rose LLP and a former board member and general counsel at the NLRB, said such an outcome is possible, given how the board has approached the case.

"Based on the board's invitation to file briefs, it seems at least possible that the board will use Roundy's to bring the Register-Guard test more in line with stricter test of Sandusky Mall," he said.

That could mean companies will face a choice of either banning all personal email or allowing union-related email.

"As a practical matter, if Register-Guard is reversed, it means that company email systems are going to be utilized by employees to promote unions, because there is no employer that has the stomach, time or capability to monitor and prohibit all of these communications that take place on the company email system and have nothing to do with work," Mr. Lotito said.

Roundy's has declined to comment on the case.

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