The Seventh Circuit Court of Appeals recently affirmed a decision of the National Labor Relations Board (NLRB), that a supermarket chain violated the National Labor Relations Act by excluding union handbillers from the sidewalks and parking lots at 23 of its Wisconsin stores.

Roundy’s, Inc. (which operates the Pick ’N Save grocery chain) was the anchor tenant in 23 Wisconsin shopping centers, but the company did not have an exclusionary property interest at those shopping centers. That is, Roundy’s did not own the shopping centers, but had a non-exclusive easement from the landlord - a limited right to use - the common areas of the shopping centers, such as the parking spaces and sidewalks in front of the stores. The Milwaukee Building and Construction Trades Council, AFL-CIO, objected to Roundy’s use of non-union contractors in the construction and remodeling of its stores. Union representatives distributed handbills outside Roundy’s stores accusing Roundy’s of using cheap labor and asking customers not to shop at Pick ’N Save stores, but there was no evidence that the handbillers obstructed customers’ access to the stores. Roundy’s expelled the handbillers from the properties.

An employer has no right to exclude union representatives engaged in protected concerted activity from areas where it lacks an exclusionary property interest. The NLRB concluded that Roundy’s acted unlawfully in ejecting the non-employee handbillers because the company did not own the common areas of the shopping centers, and therefore did not have a state law property right to exclude persons from the property. The Seventh Circuit affirmed on this basis, but explained that an employer can expel union handbillers even where it has only a non-exclusive easement where the handbillers’ conduct constitutes an unreasonable interference with the intended use and enjoyment of that easement, such as if the handbillers interfere with customers’ ability to park cars or access the easement-holder’s business.

The opinion rests heavily on state law property rights. Under Wisconsin property law, a non-exclusive easement holder does not have an exclusionary interest in the common areas outside its business, but some other states, including Pennsylvania, interpret non-exclusive easements more broadly, giving the easement-holder broader exclusionary rights. See, e.g., Weis Markets, Inc. v. NLRB, 265 F.3d 239, 246 (4th Cir. 2001) (applying Pennsylvania law), cited in the Roundy’s opinion. Had the challenge been brought in Pennsylvania or another state that similarly interprets the rights of non-exclusive easement holders, the stores may have had greater latitude to oust the handbillers. Therefore, before ejecting non-employee union representatives from the areas outside their places of business, employers who lease space should be aware, not only of the terms of the easement granted to them in their lease, but also of state law interpreting the scope of that easement.