California Dreamin. Could Register Guard Survive? Will the Board Overrule the. Register Guard Discrimination. Standard in Roundy s? Should it?

Transcription

1 California Dreamin Could Register Guard Survive? Will the Board Overrule the Register Guard Discrimination Standard in Roundy s? Should it? Christopher M. Caiaccio, Esq. Todd Timmons, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 191 Peachtree Street, N.E. Suite 4800 Atlanta, Georgia (404)

2 I. INTRODUCTION The primary purpose of this paper is to discuss the applicability, or better yet, the inapplicability, of the National Labor Relations Board s (the Board ) decision in Register Guard, 351 NLRB 1110 (2007) to the Board s pending decision in Roundy s, Inc. (Case 30-CA-17185) The Board, the Supreme Court, and federal courts have long held that different standards should be applied when analyzing access discrimination claims against employees versus nonemployees. Consequently, one would assume that Register Guard has no bearing on the Board s pending decision in Roundy s. The Board, however, seems to believe otherwise. Thus, it appears that the Board is contemplating using the Roundy s case as the forum for achieving the result it deems more desirable in employee access cases. It is no secret that the activist Obama Board disagrees with the standard applied by the Bush-era Board in Register Guard. The current Board believes that an allencompassing standard, such as that applied by the Board in Sandusky Mall, 329 NLRB 618 (1999), enf. denied, 242 F.3d 682 (6th Cir. 2001), should be applied to all cases of alleged employer discrimination. As discussed below, the Board s decision in Roundy s is not the proper vehicle for overturning Register Guard, since Register Guard had nothing to do with nonemployee access. Furthermore, the Board s Sandusky Mall discrimination standard is irrational, inconsistent with the commonly-accepted definition of discrimination, and conflicts with long-established precedent. As a result, the Sandusky Mall standard should be overruled, and it certainly should not be applied in employee access cases. A. Roundy s Inc. Roundy s Inc., involves allegations that the Respondent, a Wisconsin grocery store operator, violated Section 8(a)(1) of the National Labor Relations Act ( NLRA or the Act ) by barring nonemployee agents of the Milwaukee Building and Construction Council ( Union ) from engaging in informational handbilling on property that Respondent owned or leased, while permitting dissimilar charitable and civic organizations to solicit and distribute on the same property. Roundy s, Inc., 356 NLRB 2

3 No. 27 (November 12, 2010), slip op. at *3. After the Respondent took steps to have the nonemployee Union agents removed from its property, the Union filed an unfair labor practice charge with the Board. Id. The Administrative Law Judge ( ALJ ) held that the Respondent s actions amounted to discrimination under the Act. Id. at *6. Specifically, the ALJ found that his holding was compelled by the Board s decision in Sandusky Mall, because the Respondent conceded that it permitted solicitation by other organizations, such as the Girl Scouts, on its property. Id. at *4-5. In 2006, the Respondent appealed the ALJ s decision to the Board. The Board, however, declined to reach the merits of the access and discrimination issues. Instead, the Board remanded the case to the ALJ to consider whether the Respondent established an exclusionary property interest in the twenty-six (26) properties at issue. Id. at *1. On November 12, 2010, the Board, relying on the ALJ s supplemental factual findings, issued a Supplemental Decision and Order holding that Respondent failed to establish an exclusionary property interest in twenty-three (23) of the twenty-six (26) properties at issue, and therefore, it violated Section 8(a)(1) of the Act by prohibiting nonemployee agents of the Union from accessing those properties. Id. The ALJ s original access and discrimination analysis, however, still remains viable with respect to two of the properties. Id. That is the precise issue presently before the Board. In other words, the only remaining issue before the Board is whether the ALJ applied the correct standard in assessing alleged discrimination by an employer against nonemployee agents of a union. B. Sandusky Mall The specific issued presented in Sandusky Mall was whether the Respondent violated Section 8(a)(1) of the Act by refusing to permit representatives of the Union to distribute handbills in the Respondent s shopping mall, while permitting access for other commercial, civic, and charitable purposes. Sandusky Mall, 329 NLRB at 618. The record reflected that the employer permitted nonemployee access for a variety of special events and community related events because it believes that they enhance the public image of the mall and provide a valuable service to the community. Id. at 620. Examples included, among other things, an Arthur Murray dance marathon, the Young American Miss Pageant, a United Way Donation Thermometer, a fire escape 3

4 demonstration, a Fall Craft show, [and] an Easter Seals cake auction, as well as charitable organizations such as the Salvation Army, the American Red Cross, and the American Lung Association. Id. In contrast, the employer had prohibited the distribution of flyers for commercial interests, removed political campaign signs, and denied permission to circulate political campaign stickers and pins. Id. The Board summarily rejected the employer s contention that under Lechmere 1 nonemployee union representatives did not have a protected right of access to private property under the Act. Id. Instead, relying on the discrimination exception articulated in Babcock 2, the Board held that the employer violated the Act by denying union representatives access to its property, while permitting solicitation by various civic and charitable organizations. Id. at 621. In addition, the Board found that allowing charitable solicitations on nine occasions over an unspecified time period was sufficient to take the solicitations outside the isolated beneficent solicitation exception 3. Id. The Sixth Circuit Court of Appeals disagreed and denied enforcement of the Board s order. Sandusky Mall v. NLRB, 242 F.3d 682 (6th Cir. 2001). Specifically, the Sixth Circuit concluded that the conduct of the nonemployee union handbillers is not similar conduct to that of civic and charitable organizations. Id. at The Court further held that no relevant labor policies are advanced by requiring employers to prohibit charitable solicitations in order to preserve the right to exclude nonemployee distribution of union literature when access to the target audience is otherwise available. Id. C. Register Guard 1. Background Facts and Summary Register Guard primarily involved the legality of an employer s policy that prohibited employees from using the employer s system for any non-job-related solicitations. 351 NLRB 1110 (2007). In accord with this policy, the employer sent disciplinary warnings to one of its employees, a union president, after she sent unionrelated s to employees at their work addresses. Id. at In reviewing 1 Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) 2 NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956) 3 See Hammary Mfg. Corp., 265 NLRB 57 fn. 4 (1982) 4

5 the ALJ s decision that the employer enforced its policy in a discriminatory manner, the Board reached two primary holdings. First, the Board held that employees have no legal right under the Act to use their employer s system for Section 7 purposes. Id. at Rather, according to the Board, an employer s system is no different than other property owned by an employer. Id. at Therefore, an employer may lawfully bar employees nonwork-related use of its system, unless the employer acts in a manner that discriminates against Section 7 activity. Id. at In its second holding, which is indirectly implicated by the question currently before the Board, the Board held that the concept of discrimination in the context of employees involves only an employer s unequal treatment of equals. Id. at Thus, the Board makes clear that, in order to find unlawful discrimination, the alleged disparate treatment must be along Section 7 lines. Accordingly, an employer is free to prohibit solicitation messages, while permitting personal, non-solicitation messages. What an employer cannot do is permit solicitation messages for one union but not another, or permit solicitations by antiunion employees but not by prounion employees. 2. Register Guard s Central Holding The Board specifically held that the employer s rule prohibiting use of its system for any non-job-related solicitations did not violate the Act because employees have no statutory right to use the employer s system for concerted, protected activity. Id. at According to the Board, systems are comparable to other types of employer-owned communications equipment, such as bulletin boards, telephones, public address systems, and video systems, the use of which it is wellestablished that an employer can lawfully restrict, as long as it does not discriminate in restricting such use. Significantly, the Board observed that an employer has a basic property right to regulate and restrict employee use of all such company property. Id. (citing Mid-Mountain Foods, 332 NLRB 229, 230 (2000)) (no statutory right of employees or a union to use the employer s television), enf., 269 F.3d 1075 (D.C. Cir. 2001); Eaton Techs. Inc., 322 NLRB 848, 853 (1997) ( no statutory right of employees or a union to use employer s bulletin board ); Champion Int l, 303 NLRB 102, 109 (1991) 5

6 (employer has a basic right to regulate and restrict employee use of company property, such as a copy machine ); Churchill s Supermarkets, 285 NLRB 138, 155 (1987) (employer may restrict the use of company telephones to business-related conversations ); Union Carbide Corp. Nuclear Division, 259 NLRB 974, 980 (1981) ( employer could unquestionably bar its telephones to any personal use by employees ); Heath Co., 196 NLRB 134 (1972) ( employer did not engage in objectionable conduct by refusing to allow prounion employees to use public address system to respond to antiunion broadcasts ). The Board s central holding in Register Guard is well-reasoned and supported by an abundance of precedent. Moreover, that holding is not implicated in any way by Roundy s, which is confined to the issue of nonemployee access. It would be extremely unjustified and misguided for the Board to use Roundy s as a vehicle for overruling Register Guard s central holding that employees do not have a statutory right to use a company s system for union organizing activity. To do so would be to engage in an idealogic, agenda-driven analysis that completely disregards the traditional process of issuing Board decisions. Additionally, the practical effect of such a decision would mean that companies must immediately change any policy that prohibited non-business solicitation by . It defies logic to think that the Board would even consider imposing such a drastic change on employers through a case that has absolutely nothing to do with communications. For these reasons, the Board s central holding in Register Guard should not be disturbed by its subsequent decision in Roundy s. 3. Register Guard Discrimination Standard Of particular significance to the current issue before the Board, the Board majority in Register Guard decided to adopt the U.S. Court of Appeals for the Seventh Circuit s standard for evaluating whether an employer has discriminatorily enforced a communication or solicitation policy. Id. at 1117 (citing Guardian Industries, 313 NLRB 1275 (1994), enf. denied 49 F.3d 317 (7th Cir. 1995)). In Guardian, the employer allowed personal swap and shop postings, but it denied permission for union or other group postings, including those by the Red Cross and an employee credit union. 49 F.3d at

7 The court in Guardian started from the basic proposition that employers may control the activities of their employees in the workplace, both as a matter of property rights (the employer owns the building [and the equipment]) and of contract (employees agree to abide by the employer s rules as a condition of employment). Id. at 317. While the court acknowledged that an employer, in enforcing its rules, may not discriminate against Section 7 activity, the court noted that the concept of discrimination involves the unequal treatment of equals. Id. at 319. Moreover, the court emphasized that the employer had never allowed employees to post notices of organizational meetings. Rather, the non-work-related postings permitted by the employer consisted almost entirely of swap and shop notices advertising personal items for sale. Id. Taking these facts into account, the court stated, We must therefore ask in what sense it might be discriminatory to distinguish between for-sale notices and meeting announcements. Id. Ultimately, the court held that [a] rule banning all organizational notices (those of the Red Cross along with meetings pro and con unions) is impossible to understand as disparate treatment of unions. Id. at 320. In Fleming Co., Inc. v. NLRB, 349 F.3d 968 (7th Cir. 2003), the Seventh Circuit expressly reaffirmed its earlier holding in Guardian by refusing to enforce a Board order against an employer. Specifically, the court in Fleming Co. stated: Just as we have recognized for sale notices as a category of notices distinct from organizational notices (which would include union postings), we can now add the category of personal postings. The ALJ s factual finding that Fleming did not allow the posting of organizational material on its bulletin boards does not support the conclusion that Fleming violated Section 8(a)(1) by prohibiting the posting of union materials. 349 F.3d at 975. The Board in Register Guard concluded that the Seventh Circuit s standard, rather than prior Board precedent, better captures the essence of unlawful discrimination, which is the different treatment of similarly-situated individuals or organizations. Register Guard, 351 NLRB at Thus, in order to find discrimination under the Register Guard standard, the discrimination must be along Section 7 lines. An employer unlawfully discriminates against its employees union-related activities only if it engages in disparate treatment of activities or communications of a similar 7

8 character because of their union or other Section 7-protected status. Id. at In contrast, nothing in the Act prohibits an employer from drawing lines on a non-section 7 basis. Id. at The Board elaborated on the types of distinctions that an employer may lawfully draw: For example, an employer clearly would violate the Act if it permitted employees to use to solicit for one union, but not another, or if it permitted solicitation by antiunion employees but not by prounion employees. In either case, the employer has drawn a line between permitted and protected activities on Section 7 grounds. However, nothing in the Act prohibits an employer from drawing lines on a non- Section 7 basis. That is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (i.e., a car for sale) and solicitations for the commercial sale of a product (i.e., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and nonbusinessrelated 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. Id. at In short, the discrimination standard adopted in Register Guard requires a showing that an employer discriminated against union or other protected activity. An employer does not violate the Act if it permits occasional charitable solicitations from organizations such as the United Way, while prohibiting solicitations from noncharitable organizations, including unions. This standard is appropriate for alleged discrimination against employees, since it captures the essence of discrimination (i.e., different treatment of similarly-situated individuals or groups), and it is wholly consistent with binding Supreme Court and federal court precedent. As discussed below, however, an even more exacting standard is required for nonemployees, whose rights under the Act are derivative and thus much more limited than employees rights when it comes to solicitation on an employer s private property. 8

9 D. The (Non)Intersection of Roundy s Inc. and Register Guard With this procedural posture at hand, the Board in Roundy s, Inc. invited the parties and amici curiae to file briefs addressing three questions: 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., above? 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? The Board s third question is the primary focus of this paper. The facts involved with the Register Guard case are clearly distinguishable from the facts involved in Roundy s. As a preliminary matter, Register Guard related specifically to employee access of an employer s system, whereas Roundy s involves attempts by nonemployees to access the employer s physical premises. Thus, there are clearly different interests at stake, which require the application of different standards for considering allegations of discrimination. Why then has the Board requested briefs on what bearing Register Guard has on nonemployee access cases? It is widely believed the Obama-era Board plans to use the forthcoming Roundy s decision to reformulate the discrimination standard set forth in Register Guard so that it parallels the more union-friendly Sandusky Mall standard. Such a move would be improper for all of the reasons discussed below. III. THE BOARD SHOULD NOT OVERRULE THE REGISTER GUARD DISCRIMINATION STANDARD IN ROUNDY S The Board has no rational basis for overruling the Register Guard discrimination standard in Roundy s. As a preliminary matter, the facts of Register Guard are clearly dissimilar to the facts of Roundy s. Register Guard had nothing to do with handbilling or nonemployee access to an employer s property. Rather, that case was focused exclusively on the legality and enforcement of the employer s policy with respect to employees. Even more importantly, if the Board were to overrule the Register Guard 9

10 discrimination standard in Roundy s, a nonemployee access case, it would be ignoring the basic and well-established distinction between employee and nonemployee access rights under the Act, which were emphasized by the Supreme Court in Babcock and Lechmere. Because of that distinction, the discrimination standard in nonemployee access cases should be more exacting than the Register Guard standard. At the very least, the Register Guard standard should be the minimal threshold for establishing discrimination in cases involving nonemployees. Moreover, the discrimination standard adopted in Register Guard is consistent with the commonly-accepted meaning of discrimination, which is treating similarlysituated groups or individuals differently. Additionally, the Register Guard standard is consistent with binding Supreme Court and federal court precedent. Conversely, the standard announced by the Board in Sandusky Mall fails to take into account the essential characteristics of unlawful discrimination. Specifically, the Board found discrimination where the employer permitted occasional charitable solicitation, but it prohibited union solicitation. The Board failed to take into account, however, the different nature and purposes of the relevant organizations. Noncharitable organizations, such as unions, are wholly dissimilar to charitable organizations, such as the Red Cross. The Board s flawed reasoning is precisely why the Sandusky Mall standard has been rejected by numerous federal courts. In addition, the application of the all-or-nothing standard adopted by the Board in Sandusky Mall would harm the public interest by discouraging employers from engaging in charitable or beneficial acts, out of fear, that by doing so, they could expose themselves to liability under the Act. For these reasons, if any discrimination standard should be overturned, it should be the ill-conceived standard adopted by the Board in Sandusky Mall. A. Employee Access vs. Nonemployee Access In Babcock, 351 U.S. 105 (1956), the U.S. Supreme Court first addressed the issue of nonemployee access in the union organizing context. The specific issue presented in that case concerned the right of nonemployee union organizers to access the parking lots of the employer s manufacturing facility. There was no contention that the employer had enforced its access policy in a discriminatory manner. Despite the absence of discrimination, the Board held that because union literature could not be 10

11 safely or practically distributed to employees except on the employer s parking lots, the employer violated Section 8(a)(1) by denying access. The Fifth Circuit denied enforcement of the Board s order, and the Supreme Court affirmed. According to the Supreme Court, the Board had failed to properly distinguish between the rights of employees and those of nonemployees: The distinction is one of substance. No restrictions may be placed on the employees right to discuss self organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline. [citation omitted]. But no such obligation is owed to nonemployee organizers. Their access to company property is governed by a different consideration. The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others. Consequently, if the location of the plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property. Id. at Approximately thirty-five (35) years later, in Lechmere, the Supreme Court affirmed the right of an employer to exclude nonemployee union agents from its property. 502 U.S. at 527. More specifically, the Court held that nonemployees, standing alone, have no rights under the Act. Id. at 532. In reviewing the text of the Act, the Court observed that its plain terms confer rights only on employees, not unions or their nonemployee representatives. Id. Consequently, the rights of nonemployees to access employer property are derivative rights, if they exist at all, and are only available in certain limited circumstances, that is, only insofar as the employees right to selforganization depends in some measure of their ability to learn the advantages of selforganization from others. Id. (citations omitted). With this precedent in mind, it is important to point out the obvious distinctions between Register Guard and Roundy s. Register Guard was concerned solely with the right of employees to access their employer s system for organizational purposes. In sharp contrast, Roundy s involves attempts by nonemployee union representatives to access the employer s physical premises for the purpose of distributing informational 11

12 handbills. These two cases could not be any more different. It logically follows, therefore, that different standards for assessing discrimination should be applied. Since the Supreme Court has consistently held that the access rights of nonemployees to employer property derive only from the organizational rights of that employer s employees, a more stringent standard should be applied in assessing alleged discrimination against nonemployee union representatives. For example, one appropriate standard in nonemployee access cases would be whether an employer subjected different labor organizations to dissimilar treatment. That standard has been adopted by at least one Circuit. See Cleveland Real Estate Partners v. NLRB, 95 F.3d 457, (6th Cir. 1996) (holding that the term discrimination as used in Babcock, means favoring one union over another, or allowing employer-related information, while barring similar union-related information ). Alternatively, the Register Guard standard should be the minimal threshold for establishing discrimination in nonemployee access cases. Indeed, the Board cannot logically or rationally adopt a standard of discrimination in nonemployee access cases, which hardly implicate the Act, that is more exacting than, or that is in conflict with, the standard adopted in Register Guard for employee access cases. Because Roundy s relates solely to the right of nonemployees to access an employer s property, that case is not the proper vehicle for overturning the discrimination standard announced in Register Guard, a case that related only to employee access. B. The Register Guard Standard Captures Essence of Discrimination Unlike the erroneous standard adopted by the Board in Sandusky Mall, the standard applied by the Board in Register Guard is consistent with the well-settled concept of actionable discrimination, which focuses on dissimilar treatment of similar conduct. To establish a finding of discrimination against an employer, it must be shown that the employer treated similarly-situated groups or organizations in a disparate manner. Similarity is an essential and irreplaceable component of any claim for unlawful discrimination. Unions are in no way comparable to charitable or civic organizations, such as the United Way or Kiwanis Club. For starters, unions are membership organizations that solicit members and distribute literature to the public advertising labor 12

13 disputes, among other things. In sharp contrast, charitable organizations generally solicit financial donations for causes that will benefit the public good, such as the American Cancer Society or the American Heart Association. Thus, the nature and purpose of unions could not be any more different from the nature and purpose of charitable and civic groups. As a result, it is highly improper, when assessing allegations of discrimination, to compare the activities of a union to the activities of charitable organizations, since those two types of organizations are completely dissimilar in nearly all respects. The Board s holding in Register Guard recognized the impropriety in making a comparison between two wholly dissimilar organizations, such as a union and the United Way. Rather, for a comparison to be valid and useful, the relevant organizations must be similarly-situated in all relevant respects. Indeed, the Register Guard standard, and its requirement of similarity, is supported by a settled body of law in the Circuit Courts. See, e.g., Restaurant Corp. of Am. v. NLRB, 827 F.2d 799, (D.C. Cir. 1987) (explaining that the essence of discrimination is treating like cases differently, and finding no discrimination where employer permitted social collections but prohibited union solicitation); Guardian Indus., 49 F.3d at 319 ( A person making a claim of discrimination must identify another case that has been treated differently and explain why that case is the same in the respects the law deems relevant or permissible as grounds of action. ); Fleming Cos., 349 F.3d at 975 (practice of permitting personal postings, but not organizational postings, not discriminatory). C. The Board s Sandusky Mall Standard Should Be Overturned And It Certainly Should Not Be Applied To Employee Access Cases As reflected in the Sixth Circuit s decision denying enforcement of the Board s order, the Board s discrimination standard adopted in Sandusky Mall is misguided, irrational, and does not further the purposes of the Act. That standard should be overruled for several independently sufficient reasons. First, the Board s Sandusky Mall standard is wholly inconsistent with the Supreme Court s holdings in Babcock and Lechmere. Second, several Circuit Court of Appeals have correctly rejected the Board s Sandusky Mall standard for finding discrimination. Third, the Sandusky Mall standard is ambiguous and provides very little guidance to employers, and it could lead to the 13

14 unfortunate result of employers prohibiting all charitable solicitation, which would unquestionably harm the public interest. 1. Sandusky Mall Standard Is Inconsistent With Holdings in Babcock and Lechmere In Babcock, the Supreme Court held that nonemployees can override the broad exclusionary right that employers hold in their private property only if: (1) reasonable efforts by the union through other available channels of communication do not enable it to reach the employer s employees with its message, or (2) the employer discriminates against the union by allowing other distribution. Babcock, 351 U.S. at 112 (emphasis added). Thus, as a general rule, nonemployees have no right to access an employer s private property. It is only when one of the narrow exceptions apply that an employer must open its property to nonemployee union representatives. In Lechmere, the Supreme Court expressly reaffirmed Babcock and stated, [a]s a rule an employer cannot be compelled to allow distribution of union literature by nonemployee organizers on his property. Lechmere, 502 U.S. at 533. In addition, the Court emphasized that the exception recognized in Babcock is a narrow one : the exception only applies where the location of the plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them. Id. at (quoting Babcock, 351 U.S. at 113). The Court further explained that this exception does not apply whenever nontresspassory access to employees may be cumbersome or less-than-ideally effective, but only where employees, by virtue of their employment, are isolated from the ordinary flow of information that characterizes our society. Lechmere, 502 U.S. at Therefore, the inaccessibility exception is an extremely narrow one, and the burden is on the union to establish its applicability. Id. While neither Babcock, nor Lechmere expressly address the discrimination exception, it is clear that such exception should be construed narrowly, just as the inaccessibility exception has been. It is exactly in that manner that the Circuit Courts have construed the exception. For example, in Cleveland Real Estate Partners v. NLRB, 95 F.3d 457 (6th Cir. 1996), overruled on other grounds by NLRB v. Webcor 14

15 Packaging, Inc., 118 F.3d 115 (6th Cir. 1997), the Sixth Circuit rejected the Board s finding that an employer discriminatorily enforced its non-solicitation rule when it permitted occasional distribution by groups such as the Jehovah s Witnesses or Lions Club, but it denied access to nonemployee representatives of a union. Cleveland Real Estate Partners, 95 F.3d at In reaching its holding, the Court found significant error in the Board s suggestion that Babcock s discrimination principle could be construed apart from that decision s narrow inaccessibility analysis. Id. Indeed, according to the Court, Babcock and its progeny, which weigh heavily in favor of private property rights, indicate that the [Supreme] Court could not have meant to give the word discrimination the import the Board has chosen to give to it. Id. at 465. The Board s Sandusky Mall standard does not take a narrow view of the discrimination exception, as required by Babcock and Lechmere, and the federal court decisions interpreting those cases. Rather, the Board in Sandusky Mall adopted a broad and all-encompassing discrimination standard, which clearly conflicts with established precedent. Under the Board s standard, discrimination will almost always be found if an employer permits occasional charitable solicitations, but denies access to nonemployee union organizers. Such a result clearly was not envisioned by the Supreme Court when it recognized the discrimination exception in Babcock. If the Board s erroneous interpretation is allowed to stand, that means that the Sandusky Mall standard would, for all intent and purposes, swallow up the Babcock discrimination exception, and it would overturn the long-standing rule that an employer s private property rights are paramount. 2. Several Federal Circuits Have Rejected The Sandusky Mall Standard The Board s Sandusky Mall discrimination standard has been rejected by several Circuit Courts of Appeals. Like the Sixth Circuit, these courts have concluded that a finding of discrimination requires an examination of those entities that seek to communicate on the same subject. Thus, these courts have rejected a standard that requires a finding of discrimination when an employer permits occasional charitable solicitations, but prohibits union solicitations. 15

16 In Salmon Run Shopping Center, LLC v. NLRB, 534 F.3d 108 (2nd Cir. 2008), the Second Circuit Court of Appeals denied enforcement of the Board s order finding that the employer enforced its access policy in a discriminatory manner. In so doing, the Court rejected the Board s test for discrimination and held that the Board s articulation of the standard by which to assess whether discrimination as defined in Babcock occurred was not reasonable Because we conclude that the facts do not amount to discrimination under a properly framed standard, we deny enforcement of the Board s order. Id. at 114. The Court emphasized that: To amount to Babcock-type discrimination, the private property owner must treat a nonemployee who seeks to communicate on a subject protected by Section 7 less favorably than another person communicating on the same subject. The disparate treatment must be shown between or among those who have chosen to enter the fray by communicating messages on the subject, whether employers or employees The solicitation of Muscular Dystrophy, donations by firefighters, or the distribution of educational promotional materials on Higher Ed Night do not serve as valid comparisons to the Carpenters Union distribution of literature touting the benefits of its apprenticeship programs or decrying the failure of a mall tenant to pay area standard wages. Only the rare case satisfies Babcock s inaccessibility exception, Lechmere, 502 U.S. at 537, and it may be that the same holds true under our interpretation of the discrimination exception. Salmon Run, 534 F.3d at The Fourth Circuit, in Be-Lo Stores v. NLRB, 126 F.3d 268 (4th Cir. 1997), adopted a strikingly similar analysis. In that case, the Board found that the employer had discriminatorily denied the union access to its property, when it granted access to religious groups and charitable organizations, such as the Lions Club and Jehovah s Witnesses. The Court, in rejecting the Board s findings, held that an employer s approval of limited charitable or civic distribution, while excluding union distribution, does not constitute discrimination. Id. at 284. In addition, the Court observed the predicament faced by employers under the Board s standard, stating, [t]o affirm the Board s contrary finding on this record would be tantamount to a holding that if an employer ever allows the distribution of literature on any of its property, then it must open its property to paid nonemployee union picketers. Id. at 285; see also Riesback Food Markets, Inc. v. NLRB, 91 F.3d 132, 1996 WL , at *3 (4th Cir. 1996) 16

17 (finding that there was a legally significant difference between charitable solicitations and a union s do not patronize solicitation). As noted previously, the Seventh Circuit has also rejected the Sandusky Mall standard for assessing discrimination. See Guardian Indus. Corp. v. NLRB, 49 F.3d 317 (7th Cir. 1995). In Guardian, the employer refused to permit the union to post meeting notices on its bulletin board, even though it permitted employees to post personal notices of items for sale. Id. at 318. The Board concluded that the employer applied its policy in a discriminatory manner against the union, and specifically held that once a bulletin board is open to any notices from employees, it is discrimination not to accept meeting announcements [for the union]. Id. at 320. The Seventh Circuit denied enforcement of the Board s ruling, and observed that the Board s understanding of discrimination has been considered, and found wanting, in every other part of the law that employs that word. Id. Indeed, according to the Court, to prove discrimination, the Board must show that the cases among which the employer has distinguished are indeed similar in all respects relevant to labor policy. Id. at 321. The Board did make the requisite showing in this case. Id. Similarly, in 6 West Limited Corp. v. NLRB, 237 F.3d 767 (7th Cir. 2000), the Seventh Circuit rejected the broad discrimination standard called for in Sandusky Mall. In that case, the Court rejected the Board s findings of discrimination, and held that solicitations for Girl Scout Cookies, Christmas ornaments, hand-painted bottles certainly cannot, under any circumstances, be compared to union solicitation. Id. at 780. As the above-discussed cases make clear, the federal courts have interpreted Babcock s discrimination exception in a very narrow fashion, as they should under established Supreme Court precedent. Indeed, the cases make clear that a finding of discrimination requires a showing that an employer treated similarly-situated groups or organizations differently. Because the Sandusky Mall standard fails to recognize that essential characteristic of discrimination (i.e., different treatment of similar groups), that standard should no longer be applied in nonemployee access cases, and it definitely should not be applied in cases involving employee access. 17

18 3. Sandusky Mall Standard Is Ambiguous and Could Harm Public Interest The Board s Sandusky Mall standard provides employers with little instruction regarding the likely application of the Babcock discrimination exception. While Sandusky Mall recognized the exception for isolated beneficent solicitations, the Board has provided no helpful guidance regarding how many charitable activities are permitted before an employer runs afoul of the discrimination exception. As a result, employers promulgating non-solicitation policies are left to guess how many charitable solicitations will place them in peril under the Act. The practical effect of the Sandusky Mall standard, along with the lack of guidance from the Board, is that employers will be discouraged from permitting beneficial charitable activities, out of fear and uncertainty that they could be liable under the Act if they deny access to organizations that could harm their business interests. It would certainly be unfortunate if employers declined to participate in philanthropic activities simply because, by doing so, they would be required under the Act to also permit union representatives to distribute literature on their property. That result would not only be harmful to employers, but also the public interest. IV. WILL THE BOARD LIKELY OVERRULE THE REGISTER GUARD STANDARD Even though there are numerous compelling reasons for not doing so, the Board will likely overrule the Register Guard discrimination standard in Roundy s. The Register Guard standard has always been a major target of the Obama Board, and it appears that the Board will use the Roundy s case as the vehicle for disposing of that standard. In place of the Register Guard standard, the Board will likely apply a more unionfriendly standard, similar to the one applied by the Board in Sandusky Mall. The Board will then likely apply this new standard when analyzing any non-business use of company property, whether real property or company-owned equipment. If these predictions are correct, and the Board overrules the Register Guard standard, and implements a Sandusky-type standard, it is highly likely that any attempt by the Board to enforce that standard will run into successful challenges in the federal courts, as was the case with the Board s decision in Sandusky Mall. 18

19 V. CONCLUSION There is absolutely no reason for the Board to disturb the Register Guard discrimination standard in Roundy s. The facts of the two cases are completely dissimilar; one involves employee access to , while the other involves nonemployee access to real property. Furthermore, because nonemployee access is at issue in Roundy s, a more stringent standard should be applied in assessing discrimination. Therefore, the Register Guard standard should have no applicability to the facts of Roundy s. In addition, the Register Guard standard captures the essence of unlawful discrimination, which is the disparate treatment of similar groups or activities. Moreover, that standard, which includes the requirement of similarity, is supported by settled precedent in the various Circuits. For these reasons, the Register Guard standard should continue to be applied in employee access cases. Further, if any standard should be overturned, it should be the ill-conceived standard adopted by the Board in Sandusky Mall. That standard is completely inconsistent with the commonly-accepted meaning of discrimination (i.e., different treatment of similarly-situated groups or individuals). Moreover, the Sandusky Mall standard is inconsistent with binding Supreme Court precedent, and it has been almost unanimously rejected by the Courts of Appeals. Despite the noted shortcomings with the Sandusky Mall standard, the Board is likely to overrule the Register Guard standard, and replace it with a standard similar to that applied by the Board in Sandusky Mall. With that said, the Board is likely to have significant difficulty in enforcing the application of the modified standard in federal courts. 19