Roundy's Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 28, 2007

30-CA-17185R (N.L.R.B. Mar. 28, 2007)

JD−20–07
Milwaukee,WI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ROUNDY’S INC.,
Respondent,
and Case 30-CA-17185R
MILWAUKEE BUILDING AND
CONSTRUCTION COUNCIL, AFL-CIO,
Charging Party
Andrew S. Gollin, Esq., of Milwaukee, WI,
for the General Counsel.
Ying Tao Ho, Esq. (Previant, Goldberg,
Uelmen, Gratz, Miller & Brueggeman, S.C.), of
Milwaukee, WI, for the Charging Party.
Scott A. Gore, Esq. and Mark L. Stozenburg, Esq.
(Laner, Muchin, Dombrow, Becker, Levin
& Tominberg, Ltd.), of Chicago, IL, for the Respondent.
SUPPLEMENTAL DECISION ON REMAND
Statement of the Case
Robert A. Giannasi, Administrative Law Judge. On February 8, 2006, I issued
my original decision in this case, finding that Respondent had violated Section 8(a)(1) of
the Act by discriminatorily preventing union agents from distributing handbills on the
sidewalks in front of its stores while at the same time permitting other individuals to
solicit customers from this same area. Although the General Counsel tried the case only
on that discrimination theory, in his brief to me, he urged a different theory, namely, that
the Respondent had not established that it had a property interest in the sidewalks in
front of its stores sufficient to exclude the handbillers. Therefore, according to the
General Counsel, the Respondent had violated the Act notwithstanding its discriminatory
conduct. I rejected that theory on the ground that all parties had assumed that the
Respondent had a sufficient property interest to exclude the handbillers under the
discrimination theory advanced under the complaint and at trial, and to permit the
General Counsel to raise this new theory would raise due process problems. See
footnote 3 of my original decision. The new theory was neither specifically mentioned in
the complaint nor raised by counsel for the General Counsel in his opening statement.
On September 11, 2006, the Board, acknowledging that the issue of the
Respondent’s property interest appeared to be uncontested during the hearing,
nevertheless remanded the case to me to take further evidence on the issue because,
under Indio Grocery Outlet, 323 NLRB 1138, 1141 (1997), enfd. 187 F.3d 1080 (9th Cir.
1999), cert. denied 529 U.S. 1098 (2000), a respondent in these types of cases has the
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burden of establishing that it had a sufficient property interest to exclude others from the
property in question. The Board also noted that it need not pass on the issue whether the
Respondent’s exclusion of the handbillers was discriminatory because “[i]f it is found that the
Respondent lacked an exclusionary property interest, that finding could be sufficient to find a
violation even if the Respondent did not act discriminatorily.” Slip decision p. 5 n. 4. Compare
Food Lion, Inc., 304 NLRB 602 (1991), in which the Board affirmed the judge’s finding of a
violation where the respondent disparately enforced its rules and policies against the union by
granting other individuals the right to solicit on property adjacent to its stores while denying such
access to the union, but found it “unnecessary to pass on the judge’s discussion and analysis of
whether the [r]espondent had an exclusory property interest in the areas from which it excluded
the union representatives.” Ibid.
The Board’s remand order effectively amends the complaint to add the theory—separate
from the discrimination theory advanced in the General Counsel’s original complaint—that
Respondent violated the Act by excluding union representatives engaging in protected
concerted activity from property in which it had no exclusionary interest. On December 14,
2006, I heard evidence on the remand in Milwaukee, Wisconsin. At the end of the hearing, the
parties all expressed satisfaction that the record was now complete (Tr. 343). Thereafter, I
received briefs and reply briefs from the parties. Based on evidence submitted both on remand
and in the original proceeding, the stipulations and briefs of the parties and on the entire record,
I make the following additional findings of fact and conclusions of law.
The Facts
The Union handbilling discussed in my original decision took place in front of
Respondent’s stores at 26 specific locations, according to a stipulation of the parties (Jt. Exh. 1).
The parties also entered into a stipulation setting forth lease agreements and property interests
at each of those locations (Jt. Exh. 4). At some of the locations, Respondent’s store was in a
shopping mall and in others the store was free standing. The parties stipulated that the
handbilling was peaceful. And the record does not contain any evidence that the handbillers
obstructed or interfered with customer access to or egress from Respondent’s stores. The
record also contains testimonial evidence as to some of the handbilling. Two of the lead
handbillers testified that they instructed their associates not to interfere with customers (Tr. 77,
321).
Below, I set forth, for each of the locations, what activity took place and where, and the
circumstances of Respondent’s interference with the handbilling. I also discuss the
Respondent’s relevant property interests in the areas in which the handbilling took place.
Respondent owned the store and the property at the first location listed below. The stores at
the other 25 locations were leased by Respondent and the terms of the leases were somewhat
different at each location.1

1 The numbering system that I use in describing the store locations from 1 through 26 is
based on the listings set forth in Jt. Exh. 1. Those locations are the only ones at which the
handbilling took place. Respondent apparently has a different numbering system that covers all
of its stores, not just the ones involved in the handbilling. Jt. Exh. 1 also identifies whether the
store is free standing or in a shopping mall.
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The Activity, Where it Took Place, and Respondent’s Reaction to it
1. Pick’n Save—127/Capitol, Brookfield, WI (Mall). On or about April 20,2 Union
handbillers peacefully distributed handbills “in front of this store.”3 An agent of Respondent
approached the handbillers and demanded that they stop distributing their handbills at that
location or else he would call the police to have the handbillers removed. The handbillers then
left. Respondent owned the property involved at this location, including the area in which the
handbilling took place.4
2. Pick’n Save—Rawson, Franklin, WI (Mall). On or about April 6, Union handbillers
peacefully distributed handbills “in front of this store.” An agent of Respondent approached the
handbillers and demanded that they stop distributing their handbills at that location or else he
would call the police to have the handbillers removed. The handbillers then left.
3. Pick’n Save—Greenfield, Greenfield, WI (Free Standing). On or about April 6, Union
handbillers peacefully distributed handbills “in front of this store.” An agent of Respondent
approached the handbillers and demanded that they stop distributing their handbills at that
location or else he would call the police to have the handbillers removed. The handbillers then
left.
4. Pick’n Save—Hales Corners, Hales Corners, WI (Mall). On or about April 6 and May
5, Union handbillers peacefully distributed handbills “in front of this store,” and, on or about June
8, distributed handbills “on a sidewalk near the store.” An agent of Respondent approached the
handbillers and demanded that they stop distributing the handbills at that location or else he
would call the police to have the handbillers removed. On June 8, two of Respondent’s security
guards accompanied the manager. On April 6, the handbillers left without the police being
called or present. On May 5 and June 8, the handbillers left only after the police were called,
arrived and talked to the handbillers. One of the handbillers, Charlie Falkner, testified that he
personally handbilled at this location two times, presumably May 5 and June 8, because the
police confronted the handbillers (Tr. 322-323). On one occasion, when the handbillers were
handbilling on “a crosswalk from . . . a Blockbuster there going into the parking lot,” he testified
that the police told the handbillers that they would be arrested if they did not leave. Tr. 323.
On the second occasion, when the handbillers were “directly in front of the store, somewhat in
front of the doors of the store itself,” the police “showed up” and, after some discussion,
permitted the handbillers to remain and continue their handbilling. Tr. 323-324. Falkner also
testified that someone who said he was Respondent’s store manager approached the
handbillers while he was there. Tr. 335-336.5

2 All dates refer to 2005, unless otherwise stated.
3 The parties stipulated that the term “in front of [the] store” means somewhere in the
“common areas” described in the applicable lease agreements, including private sidewalks in
front of a particular store (Tr. 281-282, 314-316).
4 In his opening brief on remand, the General Counsel concedes that the Respondent
owned this property, including the location on which the handbilling took place, at the time it
took place. The General Counsel also concedes that Respondent therefore had a sufficient
property interest to exclude the handbillers. The evidence submitted in the remand proceeding
supports this view (R. Exh. 3-4, Tr. 347-350). Accordingly, the General Counsel concedes that
the Respondent did not violate the Act under the new remand theory of the case. But my
findings that Respondent discriminated against the Union handbillers by ousting them from this
location, set forth in my original decision, stands.
5 The parties also stipulated that, where the police were called, “Respondent’s agents were
Continued
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5. Pick’n Save—Menomonee Falls East, Menomonee Falls, WI (Mall). On or about April
6, Union handbillers peacefully distributed handbills “in front of this store.” An agent of
Respondent demanded that the handbillers stop distributing the handbills at that location or else
he would call the police to have the handbillers removed. The handbillers did not leave until
after the police were called, arrived and spoke to the handbillers.6
6. Pick’n Save—Menomonee Falls, Menomonee Falls, WI (Mall). On or about April 6,
Union handbillers peacefully distributed handbills “in front of this store.” An agent of
Respondent demanded that the handbillers stop distributing the handbills at that location or else
he would call the police to have the handbillers removed. The handbillers left.
7. Pick’n Save—Mequon, Mequon, WI (Free Standing). On or about April 6, Union
agents Steve Schreiner and Gerald Rintamaki distributed handbills “in front of this store.” An
“unidentified manager” approached them and demanded they stop distributing handbills at that
location or else he would call the police and have the handbillers removed. The police were
called, arrived and talked to the handbillers. The police told the handbillers that the Mequon
Police Department was going to issue them citations. The handbillers then left. The citations
were later mailed to Schreiner and Rintamaki. Although Schreiner testified at the first hearing
about this particular incident, his testimony does not amplify the circumstances of the
handbilling beyond what is already in the stipulation.
8. Pick’n Save—Bluemound East, Milwaukee, WI (Mall). On or about April 21, April 29,
May 4 and June 29, Union handbillers peacefully distributed handbills “in front of this store.” An
agent of Respondent approached the handbillers and demanded that they stop distributing
handbills at that location or else he would call the police and have the handbillers removed. On
each occasion, the police were called, arrived and talked to the handbillers. On April 21, the
handbillers moved to the public sidewalk only after the police arrived. On the last three
occasions, however, the handbillers had moved to the public sidewalk before the police
appeared. On all occasions, the handbilling continued on the public sidewalk.
9. Pick’n Save—Bayview, Milwaukee, WI (Free Standing). On an unspecified date in
June, Union handbillers peacefully distributed handbills “in front of this store.” An agent of
Respondent approached the handbillers and demanded that they stop distributing handbills at
that location or else he would call the police and have the handbillers removed. The handbillers
then left. Union handbiller Charlie Falkner testified to the same effect. Tr. 325
10. Pick’n Save—Clark Square, Milwaukee, WI (Mall). On or about April 21, Union
handbillers peacefully distributed handbills “in front of this store.” An agent of Respondent
approached the handbillers and demanded that they stop distributing handbills at that location
or else he would call the police and have the handbillers removed. The police were called,
arrived and spoke to the handbillers. The handbillers then moved to the public sidewalk.
_________________________
responsible for contacting the police or having the property owner contact the police.” Jt. Exh. 1
p. 1.
6 In its opening brief on remand (Br. 6, 30), Respondent mistakenly states that this aspect of
the stipulation refers to an unidentified manager, not a Roundy’s manager. The relevant part of
the stipulation covering this incident, however, clearly refers to an “unidentified Roundy’s
manager.”
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11. Pick’n Save—Good Hope, Milwaukee, WI (Free Standing). On or about April 20,
Union handbillers peacefully distributed handbills “in front of this store.” An agent of
Respondent approached the handbillers and demanded that they stop distributing handbills at
that location or else he would call the police and have the handbillers removed. The handbillers
then left.
12. Pick’n Save—Metro Market, Milwaukee, WI (Mall). According to the stipulation of the
parties, on an unspecified date in June, Union handbillers peacefully distributed handbills “in
front of this store.” An agent of Respondent approached the handbillers and demanded that
they stop distributing the handbills at that location or else he would call the police and have the
handbillers removed. The handbillers then left. Union handbiller Charlie Falkner testified about
being present at this location, but was unable to identify the date; he recalled handbilling on a
public sidewalk “going into the parking lot (Tr. 332-333).” His testimony is not specific enough to
make definitive findings, but it does not detract from the incident set forth in the stipulation.
13. Pick’n Save—East Pointe, Milwaukee, WI (Mall). On or about June 29, a Union
handbiller peacefully distributed handbills “on the public sidewalk outside this store.” An
unidentified person claiming to own the property approached the handbiller and demanded that
he stop distributing handbills at that location. The handbiller refused. The police were called,
arrived and spoke with “the parties.” The police allowed the handbiller to remain. This part of
the stipulation does not state the person who approached the handbiller was an agent of
Respondent, although the stipulation generally provides that “Respondent’s agents were
responsible for contacting the police or having the property owner contact the police.”7
14. Pick’n Save—Midtown, Milwaukee, WI (Mall). On an unspecified date in June, Union
handbillers peacefully distributed handbills “in front of this store.” An agent of Respondent
approached the handbillers and demanded that they stop distributing the handbills at that
location or else he would call the police and have the handbillers removed. The handbillers
then left. Union handbiller Falkner testified that, on a different date, he handbilled in certain
parking areas of the mall, but no action was taken against the handbillers. Tr. 325-326.
15. Pick’n Save—Silver Spring, Milwaukee, WI (Mall). On or about April 20, Union
handbillers peacefully distributed handbills “in front of this store.” An agent of Respondent
approached the handbillers and demanded that they stop distributing the handbills at that
location or else he would call the police and have the handbillers removed. The handbillers
then left.
16. Pick’n Save—Muskego, Muskego, WI (Mall). On or about April 6, Union handbillers
peacefully distributed handbills “in front of this store.” An agent of Respondent approached the
handbillers and demanded that they stop distributing the handbills at that location or else he
would call the police and have the handbillers removed. The police were called, arrived and
spoke with the handbillers. The handbillers then left. There was testimony concerning this
incident that supported this aspect of the stipulation (Tr. 79-80).
17. Pick’n Save—New Berlin, New Berlin, WI (Mall). On or about April 6, Union
handbillers peacefully distributed handbills “in front of this store.” An agent of Respondent
approached the handbillers and demanded that they stop distributing the handbills at that

7 Because of the apparent ambiguity in the stipulation, the General Counsel, in his opening
brief on remand (Br. 16), concedes that the stipulation does not support a violation of the Act as
to this incident, under either the remand theory or the discrimination theory of the case.
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location or else he would call the police and have the handbillers removed. The police were
called, arrived and spoke to the handbillers. The handbillers then left. Testimonial evidence
also supported this aspect of the stipulation (Tr. 78-79).
18. Pick’n Save—Tri City, Oak Creek, WI (Mall). On or about April 20, Union handbillers
peacefully distributed handbills “in front of this store.” An agent of Respondent approached the
handbillers and demanded that they stop distributing the handbills at that location or else he
would call the police and have the handbillers removed. Thereafter, according to the relevant
part of the stipulation, [t]he handbillers moved to the sidewalk.” The police were called, arrived
and spoke to the handbillers. After this, again according to the stipulation, [t]he handbillers
remained on the public sidewalk.” The handbillers returned on or about April 21, May 10 and
May 25 and distributed handbills on “the public sidewalk.” Thereafter the police were called,
arrived and spoke to the handbillers, but the handbillers continued their handbilling on the public
sidewalk.8 Falkner also testified that he handbilled twice at this location, but no action was
taken against the handbillers. Tr. 327.9
19. Pick’n Save—Oconomowoc, Oconomowoc, WI (Mall). On or about May 17, Union
handbillers peacefully distributed handbills “in front of this store.” An agent of Respondent
approached the handbillers and demanded that they stop distributing handbills at that location
or else he would call the police and have the handbillers removed. The police were called,
arrived and spoke to the handbillers. The handbillers thereafter moved their handbilling to the
public sidewalk. Falkner testified that he handbilled at this location, but at the “entrances of the
parking lot itself.” According to Falkner, a store manager told the handbillers to leave, then the
police came and permitted the handbillers to continue. Tr. 327-328. The latter incident appears
to be a different incident than the incident described in the stipulation.
20. Pick’n Save—Whitnall, St. Francis, WI (Mall). On or about April 21, Union
handbillers peacefully distributed handbills “in front of this store.” An agent of Respondent
approached the handbillers and demanded that they stop distributing handbills at that location
or else he would call the police and have the handbillers removed. The handbillers left.
21. Pick’n Save—Wales, Wales, WI (Free Standing). On an unspecified date in April,
Union handbillers peacefully distributed handbills “in front of this store.” An agent of
Respondent approached the handbillers and demanded that they stop distributing handbills at
that location or else he would call the police and have the handbillers removed. The handbillers
left.
22. Pick’n Save—Sunset, Waukesha, WI (Free Standing). On or about June 29, Union
handbillers peacefully distributed handbills “in front of the store.” An agent of Respondent
approached the handbillers and demanded that they stop distributing handbills at that location
or else he would call the police and have the handbillers removed. The police were called,
arrived and spoke to the handbillers. The handbillers then moved to the public sidewalk or right-
of-way.

8 I assume, in accordance with the stipulation of the parties, that an agent of Respondent
called the police on the latter 3 occasions.
9 In his opening brief on remand (Br. 20, n. 7), the General Counsel stated that he does not
pursue the alleged violations based on any incidents that took place at this location, except the
one on April 20, because of the lack of specificity in the stipulation as to who called the police.
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23. Pick’n Save—Waukesha East, Waukesha, WI (Mall). On or about June 29, Union
handbillers peacefully distributed handbills “in front of the store.” An agent of Respondent
approached the handbillers and demanded that they stop distributing handbills at that location
or else he would call the police and have the handbillers removed. The handbillers left.
24. Pick’n Save—State Street, Wauwatosa, WI (Mall). On or about April 6, and again on
an unspecified date in May, Union handbillers peacefully distributed handbills “in front of the
store.” An agent of Respondent approached the handbillers and demanded that they stop
distributing handbills at that location or else he would call the police and have the handbillers
removed. The police were called, arrived and talked to the handbillers. The handbillers then
moved to the public sidewalk. On an unspecified date in June, handbillers again appeared at
this location, this time “at the entrance of the parking lot from the street.” On this occasion, an
agent of Respondent approached the handbillers and demanded that they stop distributing
handbills at that location or else he would call the police to have the handbillers removed. The
police were called, arrived and spoke to the handbillers. The handbillers thereafter moved to
the public sidewalk.
25. Pick’n Save—Cleveland, West Allis, WI (Mall). On or about April 6, Union
handbillers peacefully distributed handbills “in front of this store.” An agent of Respondent
approached the handbillers and demanded that they stop distributing handbills at that location
or else he would call the police and have the handbillers removed. The handbillers then left.
26. Pick’n Save—Market Square, West Allis, WI (Mall). On or about May 18, Union
handbillers peacefully distributed handbills “outside this store.” Two of Respondent’s security
guards approached the handbillers and asked them to leave or else they would call the police
and have the handbillers removed. The police were called, arrived and talked to the handbillers.
The handbillers thereafter moved to the public sidewalk.
In its opening brief on remand (Br. 30-32), the Respondent contends that, in several of
the incidents described above, its agents were not responsible for ousting the handbillers or for
calling the police. In one incident, at Menomonee Falls, No. 5, above, the Respondent was
wrong on the facts. In another, at East Pointe, No. 13, above, the General Counsel has
disavowed any reliance on that incident in alleging violations of the Act. At Tri-City, No. 18
above, the General Counsel has disavowed any reliance on those incidents, except for that
occurring on April 20, an incident that Respondent does not contest in its brief.
The Respondent also contends that the stipulation and the testimony about the Mequon
incident, No. 7, above, does not show that Respondent itself took action against the handbillers.
The stipulation covering this incident does indeed, as Respondent contends, refer only to an
“unidentified manager” approaching the handbillers and asking them to stop their activity.
However, the stipulation states generally that “Respondent’s agents were responsible for
contacting the police or having the property owner contact the police.” See note 5 above.
Moreover, a separate part of the stipulation, number 3 at page 1 of Jt. Exh. 1, states that “one of
Respondent’s statutory supervisors or agents, Peter Schuette” called the police, who thereafter
issued citations to two of the handbillers, Steven Schreiner and Gerald Rintamaki. In these
circumstances, I reject Respondent’s contention.
The Respondent also relies (Opening Br. 32) on the testimony of one of the handbillers,
Charlie Falkner, in contending that some of the Respondent’s contacts with him not only show
no interference with his handbilling, but also show more generally that Respondent did not
interfere with any handbilling that took place at the locations where Falkner handbilled. I also
reject this contention. First of all, it is not clear that Falkner was testifying to the same incidents
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described in the relevant parts of the stipulation. For example, Respondent contends that
Falkner was not interfered with when he handbilled at the Tri City location. But, as indicated
above, the General Counsel only relies on the April 20 handbilling for a violation at that location.
And Falkner’s testimony indicates that he handbilled at Tri City on two occasions, neither of
which he identified by date (Tr. 327). Thus, Falkner’s testimony does not impugn the stipulated
facts concerning the Tri City incident. Likewise, Falkner’s testimony about his handbilling at the
Oconomowoc location does not specify the date he handbilled there, and his description of what
happened does not appear to match the incident described in the stipulation (Tr. 327-328). I
could not find any reference in Falkner’s testimony to the Cleveland location, which Respondent
also cited in this connection. Thus, I cannot find that Falkner’s testimony refutes the stipulation
insofar as it relates to the Cleveland location. Finally, Respondent contends that Respondent
did not interfere with Falkner’s handbilling at the Hales Corners location. Falkner testified he
handbilled at that location on two occasions, but did not give the dates he handbilled (Tr. 323-
324). The stipulation for this location, No. 4, above, sets forth three particular dates. It is not
clear to me that Falkner’s testimony deals with the same incidents mentioned in the stipulation,
but even if it did, one incident remains unrebutted by Falkner’s testimony and, in another,
Falkner clearly testified that the police were called and told the handbillers if they did not leave
they would be arrested (Tr. 323). At most, therefore, in only one of the incidents Falkner
testified about was he told that his handbilling was permitted (Tr. 323-324). In short, the
testimony is insufficient to rebut the clear terms of the stipulation concerning the Hales Corners
location and I reject Respondent’s contention that it did not interfere with the handbilling at this
location.
The Respondent’s Property Interests in the Areas Where the Handbilling Took Place
As indicated, Respondent owned the property at location No. 1 listed above
(127/Capitol), including the area in which the handbilling took place, and the General Counsel
no longer relies on that incident to support a violation on the remand theory of the case. The
General Counsel adheres to his view that the Respondent violated the Act at this location under
the discrimination theory of the case, consistent with my original decision.
The other 25 locations were subject to different lease agreements between different
landlords and Respondent, which leased the stores themselves, not the common areas in front
of the stores, where the handbilling took place. The details of the relevant language of the lease
agreements are set forth in a stipulation of the parties during the remand hearing (Jt. Exh. 4).
Although the parties differ on whether the Respondent has an exclusionary interest in the
common areas where the handbilling took place, there is essential agreement that Respondent
had a nonexclusive easement in those common areas. Most of the leases specifically provide
that the lessee has a nonexclusive easement in the common areas, including the sidewalks
immediately in front of the stores and the parking lots serving the leased premises, and the
others implicitly provide as much. The Respondent concedes (Opening brief on remand, at 2
and 37-39) that the leases at all 25 leased locations granted it “non-exclusive easements to the
common areas.” The easements generally permit use of the common areas by Respondent and
its customers, employees and invitees, as well as the landlord and other tenants of the shopping
centers, and their customers, employees and invitees.10

10 The General Counsel seems to contend (Reply Br. on remand at p. 2, n. 1) that language
in some of the leases does not in fact amount to an easement, because it simply provides the
lessee with the “nonexclusive right and privilege . . . to use the Common areas.” Such
language, however, amounts to at least an implicit nonexclusive easement. In any event, I will
assume as much for the purposes of this case.
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Several of the locations, however, call for further discussion because of unique
circumstances or particular lease language. For example, the General Counsel essentially
concedes (Opening brief on remand at 11) that the lease language at the Bluemound store (No.
8) is too ambiguous to support a violation under the remand theory of the case. That location is
thus no longer part of the remand theory of the case.
In addition, several of the locations are covered by lease language that sets forth
Respondent’s maintenance obligations with respect to the common areas. See generally Jt.
Exh. 4. Thus, a number of the leases (Stores Nos. 2, 3, 4, 5, 6, 9, 10, 11, 13, 14, 15, 17, 18, 20,
22, 24, 25 and 26) contain language providing that the landlord shall operate and maintain the
common areas, but some (Nos. 2, 3, 4, 6, 9, 10, 11, 13, 14, 17, 20, 24 and 26) have language
providing that the tenant shall pay as additional rent its proportionate share of certain common
area expenses, including cleaning, snow and ice removal, property and liability insurance,
landscaping, rubbish removal and other expenses. At the Cleveland, West Allis store (No. 25),
the Respondent shares in the landlord’s costs of maintaining and operating the common areas
and it also has the right to take over the landlord’s responsibilities in the common areas (Jt. Exh.
4 at p. 13). But there is no evidence in this record that Respondent has agreed to take over
those responsibilities. At the Oconomowoc store (No. 19), the Respondent is wholly
responsible for paying all the costs and expenses for maintaining the common areas. Jt. Exh. 4
at p. 5. Both the Cleveland and Oconomowoc stores are in a shopping mall.
Other locations have different lease provisions governing maintenance or payment of
costs for using the common areas. The lease agreement for the free standing Wales store (No.
21) provides that the tenant, Respondent, shall operate and maintain the common areas and
pay “as and when due” all costs and expenses for the maintenance of the common areas. Jt.
Exh 4 at p. 11. The lease agreement for the Mequon store (No. 7), which, contrary to the
General Counsel (Opening Br. 9), is a free standing store (Jr. Exh. 1), provides that Respondent
shall pay, “as additional rent,” its share of common area expenses. Under another lease
provision, the Respondent’s share of those expenses is listed at 100% (Jt. Exh. 4, p. 7). At the
Metro Market store (No. 12), which is in a shopping mall, the lease agreement provides that the
Respondent should reimburse the landlord for at least some of the costs of maintaining the
common areas; other costs are shared (Jr. Exh. 4, pp. 7-8). At the Muskego store (No. 16),
which is in a shopping mall, the lease agreement provides that, as a tenant, Respondent should
maintain and operate the common areas “in accordance with good real estate practice.” Jt.
Exh. 4, p. 9. At the Tri-City store (No. 18), which is in a shopping mall, the lease agreement
provides that, as a tenant, Respondent shall pay, “as additional rent, 100% of” certain specified
common area expenses, including the cost of maintaining and repairing sidewalks, landscaping,
utility and insurance costs. Jt. Exh. 4 at p. 10. At the Waukesha Sunset store (No. 22), a free
standing store, the lease agreement provides that Respondent shall pay, “as additional rent, its
pro-rata share of” certain specified common area expenses. Jt. Exh. 4, p. 12. At the Waukesha
East store (No. 23), which is in a shopping mall, the lease agreement provides that Respondent
shall reimburse the landlord for its proportional share of the common area costs. Jt. Exh. 4, pp.
12-13.
Brian Pikalek, a loss prevention district manager for Respondent, testified in the remand
proceeding. He supervises security issues over part of Respondent’s operations. He testified
that it is Respondent’s practice to exclude undesirable people, such as panhandlers, drunks,
skateboarders, handbillers or vagrants, from the common areas in front of Respondent’s leased
stores. They are asked to leave the property and, if they do not, the police are called to remove
them. Tr. 289-290, 292, 297, 298. 304-306. According to Pikalek, neither he nor any other of
Respondent’s agents call the landlord in advance of requesting people to leave or calling the
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police (Tr. 291, 297) and the landlord does not know, even after the fact, that he or other agents
of Respondent exclude undesirable people from the common areas (Tr. 298). Nothing in the
lease agreements authorizes Respondent’s actions in this respect and Pikalek was not acting in
accordance with any authority under the lease agreements (Tr. 301-302).
Applicable Principles
In Lechmere, Inc. v. NLRB, 502 U.S. 527, 537-538 (1992), the Supreme Court, citing its
earlier decision in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), rejected the Board’s
balancing test in assessing whether a property owner could deny access to his property to
nonemployee union representatives who sought to reach the property owner’s employees. The
Court held that Section 7 does not protect nonemployees in those circumstances, except where
the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to
reach them through the usual channels. Ibid. As the Eighth Circuit stated, however, in a case
almost identical to this one, the Babcock/Lechmere construct does not neatly fit the
circumstances where nonemployees seek to reach customers rather than employees and where
the respondent does not own the premises on which the nonemployee union activities take
place. O’Neil’s Markets v. United Food and Commercial Workers Union, 95 F.3d 733, 737 (8th
Cir. 1996), affirming in part and remanding in part, Food for Less, 318 NLRB 646 (1995). In
O’Neil’s, the Court endorsed the Board’s analysis, which assessed both the Section 7 and the
property rights involved in peaceful area standards handbilling. The handbilling in that case, like
that in the instant case, urged a consumer boycott and took place outside a respondent’s leased
store. Respondent did not own the property on which the handbilling took place, but it held a
nonexclusive easement over it. While conceding that the nonemployee union handbilling
involved was not a “core” organizing activity, the Court ruled that it was nevertheless a protected
activity that could not be thwarted by the respondent because the latter did not have a property
interest in the area on which the activity took place sufficient to exclude the handbillers. 93 F.3d
at 738-739.11
In the underlying Board decision approved by the Eighth Circuit in O’Neil’s, Food for
Less, supra, 318 NLRB at 649, the Board stated:
In cases in which the exercise of Section 7 rights by nonemployee union
representatives is assertedly in conflict with a respondent’s private property rights, there
is a threshold burden on the respondent to establish that it had, at the time it expelled
the union representatives, an interest which entitled it to exclude individuals from the
property. . . . In the absence of such a showing there is in fact no conflict between
competing rights requiring an analysis and an accommodation under [the Supreme
Court’s Lechmere decision discussed above]. . . . In determining whether an adequate
property interest has been shown, it is appropriate to look not only to relevant
documentary evidence and other evidence on record but to the relevant state law.
[Citations omitted].
After analyzing the respondent’s lease and the law of Missouri, where the case
originated, the Board found, with the Eighth Circuit’s approval, that the respondent violated

11 The Court remanded the case to the Board because the General Counsel had not proved
that the union possessed a valid area standards objective. 95 F.3d at 738. No such issue is
presented in this case because here the Union did possess a valid area standards objective.
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Section 8(a)(1) of the Act by excluding the handbillers from the parking lot in front of its store.
According to the Board, the respondent did not have the right, under Missouri law, to exclude
the handbillers from the parking lot in front of its store because it only had a nonexclusive
easement over that area. The lease defined the easement as being held in common with the
lessor and lessor’s other lessees for ingress, egress and parking for customers, employees and
invitees. And Missouri law provided that an easement was a nonpossessory interest in land, an
insufficient interest to permit actions such as trespass to protect such interest. 318 NLRB at
649-650; and 95 F.3d at 738-739.12
The Board has undertaken a similar analysis in other cases finding that the respondents
involved did not have a right to exclude union representatives from property in which they had
no exclusionary interest and thus violated the Act. See Indio Grocery Outlet, supra (California
law); Johnson & Hardin Co., 305 NLRB 690, 694-695 (1991) (Ohio law); Mr. Z’s Food Mart, 325
NLRB 871, n. 2 and 878-884 (1998), enforcement denied, Weis Markets, Inc. v. NLRB, 265 F.
3d 239 (4th Cir. 2001) (Pennsylvania law); and Nicks’, 326 NLRB 997 (1998), reversed in
pertinent part, United Food and Commercial Workers Union v. NLRB, 222 F. 3d 1030 (D.C. Cir.
2000) (Virginia law). See also Indio Grocery Outlet, supra, and Nicks’, supra, for the Board’s
statement of the burden of proof in such cases.13
Discussion and Analysis
Applying the above principles to the facts in the instant case, I find, as shown in my
original decision, that the handbilling was protected concerted activity. I also find that the
Respondent interfered with such protected activity by ejecting the handbillers from the areas in
front of its leased stores, except for the East Pointe and the Bluemound locations, because it
has not satisfied its burden of proving that it had an exclusionary interest in those areas.14
Nothing in the lease agreements themselves specifically states that that the Respondent had a
right to exclude the handbillers from the areas in which the handbilling took place. The
Respondent had only a nonexclusive easement in those areas, which were not part of its leased
premises and which were defined as “common areas.” The easement, which was shared with
other tenants and the landlord, gave Respondent—for the benefit of customers, employees and
invitees—the right to use those areas for ingress and egress, not to eject anyone from those
areas.

12 The Board declined to pass on whether the lease under consideration gave the
respondent a sufficient property interest in the sidewalk in front of its store, from which the
handbillers were also excluded, because the lease was unclear as to whether the respondent
controlled the sidewalk and the violation was established by exclusion of the handbillers from
the parking lot. 318 NLRB at 650 n. 6.
13 Several former Board members have taken a different view of the respondent’s burden of
proof in such cases, characterizing it more of a burden of going forward or production. Thus,
former Member Cohen would first require the General Counsel to establish that the handbillers
whom the respondent ejected were engaged in protected Section 7 activity. Then, he would
require the respondent to show that it had a colorable property right to the area from which the
handbillers were ejected. The burden at that point would shift back to the General Counsel to
show that the respondent did not have an exclusionary property right. See Great American, 322
NLRB 17, 20 n. 13 and 23, n. 21 (1996). The views of former Members Hurtgen and Gould are
essentially the same. See Nicks’, supra, 326 NLRB at 1002 n. 26 and 1003 n. 1.
14 The General Counsel concedes that there was no violation under the remand theory at
the 127/Capitol store (No. 1), on property that the Respondent owned outright. Respondent no
longer owns that property (Tr. 348).
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Nothing in the other record evidence establishes an exclusionary right on the part of the
Respondent. Although testimony at the remand hearing showed that an agent for the
Respondent did actually exclude undesirable people from the common areas in front of its
stores, there is no evidence that the landlord, who actually owned the property, authorized or
ratified such action. Indeed, the Respondent’s agent testified that he did not act under the
lease agreements. Nor did Respondent test the legality of its position by taking legal actions
that would have definitively determined its right to eject individuals from the common areas, over
which it had a nonexclusive easement.
Nor has Respondent shown that, under Wisconsin law, it had a right to exclude
individuals from the common areas over which it had a nonexclusive easement. “An easement
is an interest in land, which is in the possession of another, creating two distinct property
interests: the dominant estate, which enjoys the privileges granted by the easement, and the
servient estate, which permits the exercise of those privileges.” Gallagher v. Grant-Lafayette
Electric Cooperative, 249 Wis.2d 115, 126, 637 N.W.2d 80, 85 (2001), citing prior case
authority. Thus, although, as an easement holder, Respondent does have a property interest in
the common areas in front of its stores, it does not have a possessory interest in those areas.
The lack of such an interest precludes it from bringing a trespass action against individuals
whom it wants to exclude from those areas. Section 943.13(1m)(b) of the Wisconsin statutes
makes it a violation for an individual to enter or remain “on any land of another after having been
notified by the owner or occupant not to enter or remain on the premises.” The statute does not
define “occupant,” but Respondent has cited no Wisconsin cases that construe an easement
holder as an “occupant” under the statute. As the General Counsel points out (Opening Br. 34),
Black’s Law Dictionary (8th ed. 2004) defines “occupant” as “one who has possessory rights in,
or control over, certain property or premises.”
An easement holder does not, by definition, have a possessory right. Moreover, since
the areas in front of its stores are common areas, Respondent does not have control over those
areas; it certainly does not have exclusive control. Nor does the fact that, under some of the
leases, the Respondent has an obligation to repair and maintain the common areas transform
its status of an easement holder into that of an occupant or one who controls the common
areas. Respondent neither occupies the sidewalks in the common areas nor has control over
them. It simply has the right, which it has purchased, to use the sidewalks, in common with the
landlord and other tenants, and to have its customers and invitees use those sidewalks, again,
in common with the customers and invitees of others, for ingress and egress. In similar cases,
the Board has not found that an easement holder’s obligation to maintain or police the common
areas in which protected activity takes place operates to give it an exclusionary right in such
common areas. See Mr. Z’s Food Mart, supra, 325 NLRB at 871 n. 2 and 883-884; Food for
Less, supra, 318 NLRB at 650; and Johnson & Hardin Co., supra, 305 NLRB at 695.15
To be sure, an easement “carries with it by implication the right to do what is reasonably
necessary to the full enjoyment of the easement in light of the purpose for which it was granted.”
Gallagher, supra, 249 Wis.2d at 128, 637 N.W.2d at 86, citing authority. But there is no
evidence in this case that the handbillers interfered with the ingress or egress of customers or

15 In construing a Virginia statute, which permitted a “custodian” or a “person lawfully in
charge of” the property in question to bring a trespass action, the District of Columbia Circuit
ruled that the holder of a nonexclusive easement in that case did not come within the statute,
even though it had some obligation to maintain the property. See United Food & Comm. Wkrs.
v. NLRB, supra, 222 F.3d at 1036-1037.
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anyone else having business with Respondent, the purpose for which the easement was
granted. That fact distinguishes a number of the cases cited by the Respondent, particularly
Lintner v. Augustine Furniture Co., 199 Wis. 71, 225 N.W. 193 (1929) and Hunter v. McDonald,
78 Wis.2d 338, 254 N.W.2d 282 (1977), upon which it apparently chiefly relies (Reply Br. 7).
Those cases dealt with unreasonable interference with use of the easements because of
physical obstructions or infringements either on or immediately adjoining the rights-of- ways
involved in those cases. Here, there was no interference with use of the easement. Nor has
Respondent cited any Wisconsin cases that support its contention (Opening Br. 40, Reply Br.
15) that peacefully distributing a message urging a consumer boycott, a protected concerted
activity under Federal law, amounts to a material interference with the enjoyment of a
nonexclusive easement permitting the ingress and egress of customers into and from a retail
facility.
In its reply brief on remand (Br. 15), the Respondent cites the Fourth Circuit’s
disagreement with the Board’s finding of a violation in Mr. Z’s Food Mart, supra, in support of its
contention that it had an exclusionary interest here. That case, which applied the property laws
of Pennsylvania, is clearly distinguishable. The Fourth Circuit cited a Pennsylvania Supreme
Court decision that the Board had not mentioned or discussed in its underlying decision, which
specifically held that a shopping center tenant could, in fact, exclude union picketers from
common areas in front of its store. Weis Markets v. NLRB, supra, 265 F.3d at 246-248, citing
Logan Valley Plaza, Inc. v. Amalgamated Food Employees Union, Local 590, 425 Pa. 382, 227
A.2d 874 (1967), a case the Court stated was directly on point and remained valid, despite a
reversal by the United States Supreme Court because that Supreme Court decision was itself
later overruled. The Respondent has not cited a comparable Wisconsin case. The closest
Wisconsin case on point does not help Respondent. In Jacobs v. Major, 139 Wis.2d 492, 407
N.W.2d 832 (1987), the Wisconsin Supreme Court upheld a shopping center owner’s right to
exclude antinuclear protesters from its premises and held that the free speech provisions of the
Wisconsin Constitution did not protect the protesters’ rights on private land. But the property
rights enforced in that case were the rights of the owner of the property who brought the lawsuit.
Respondent does not own the property from which the handbillers in this case were ejected. It
only has a nonexclusive easement over that property. Accordingly, any reliance on Jacobs v.
Major would be unavailing.16
Since the Respondent has failed to meet its burden of showing that it had an
exclusionary interest in the common areas from which it ousted the handbillers in this case, its
exclusion of the handbillers was violative of the Act. Thus, under the remand theory of this
case, and independent of whether the Respondent discriminated against the handbillers by
permitting similar activity by nonunion entities, it has violated Section 8(a)(1) of the Act by its
conduct at all locations listed above, except for the East Pointe, Bluemound and 127/Capitol
locations (Nos. 1, 8 and 13). I reaffirm the findings in my original decision, except that no
violation is found, even under the discrimination theory, as to the East Pointe location (No. 13).
Conclusions of Law
1. By prohibiting Council representatives from handbilling in front of its stores, and by
having handbillers issued citations, Respondent violated Section 8(a)(1) of the Act.

16 In a companion case decided on the same day as Jacobs v. Major, the Wisconsin
Supreme Court upheld, on essentially the same grounds, a trespass conviction against abortion
protesters on private property. State v. Horn, 139 Wis.2d 473, 407 N.W.2d 854 (1987).
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2. By discriminatorily prohibiting Council representatives from handbilling in front of its
stores, and by having handbillers issued citations, while permitting other solicitation and
distributions in those areas, Respondent violated Section 8(a)(1) of the Act.17
3. The above violations are unfair labor practices within the meaning of the Act.
Remedy
I reaffirm the remedy set forth in my original decision with appropriate alterations to
reflect the new violation found based on the remand theory of the case, as well as the new facts
developed at the remand hearing insofar as they may affect the original remedy and order with
regard to the discrimination theory of the case. I remain skeptical about the necessity for a
notice posting addressed to Respondent’s employees to remedy a violation that amounts to
interference with consumer-based appeals involving the rights of employees not employed by
Respondent. But Board law apparently endorses such a remedy. See, in addition to Sandusky
Mall, cited in my original decision, Food for Less, supra, 318 NLRB at 650-651, with respect to
the remand theory.
On these findings of fact and conclusions of law, and on the entire record herein, I issue
the following recommended18
ORDER19
The Respondent, Roundy’s Inc., its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Prohibiting representatives of the Council, whether by discrimination or otherwise,
from distributing handbills in front of their stores, by demanding that they leave the area and by
having them issued citations, or, in any other way, interfering with them.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed them by Section 7 of the Act.
2 Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this order, notify the appropriate law enforcement
authorities, in writing, with copies to the Council that the Board has found that the citations
issued to Steven Schreiber and Gerald Rintamaki were unlawful and ask them to expunge any
citations and other records dealing with the events in this case.

17 I have altered the conclusion and the corresponding order in my original decision to reflect
the facts as developed in the remand proceeding and have added a conclusion and language in
the corresponding order to reflect the new finding under the remand theory of the case.
18 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions and recommended order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be waived for all
purposes.
19 This order reflects both the original violation and the new violation under the remand
theory of the case.
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(b) Within 14 days after service by the Region, post at all of its stores at which Council
representatives were unlawfully prohibited from handbilling, copies of the attached notice
marked “Appendix.”20 Copies of the notice, on forms provided by the Regional Director for
Region 30, after being signed by Respondent’s representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices are not altered, defaced or
covered by any other material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed any of the stores involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by Respondent since May 9, 2005, the date the
first charge was filed in this case.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps the
Respondent has taken to comply with this order.
Dated, Washington, D.C., March 28, 2007.
______________________
Robert A. Giannasi
Administrative Law Judge

20 If this order is enforced by a judgment of a United States Court of Appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
Section 7 of the Act gives employees these rights
To organize
To form, join or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT prohibit representatives of Milwaukee Building and Construction Trades Council,
AFL-CIO, whether by discrimination or otherwise, from distributing handbills in front of our
stores by demanding that they leave the property, having them issued citations, or, in any other
way, interfering with them.
WE WILL NOT, in any like or related manner, interfere with, restrain or coerce you in the
exercise of rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days of the Board’s order, notify the applicable law enforcement authorities,
in writing, that the citations issued to Steven Schreiber and Gerald Rintamaki were found to be
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unlawful by the Board and ask them to expunge any citations and other records dealing with the
citations. Copies of such notification and request will be sent to the above individuals and the
Council.
ROUNDY’S INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
310 West Wisconsin Avenue, Federal Plaza, Suite 700
Milwaukee, Wisconsin 53203-2211
Hours: 8 a.m. to 4:30 p.m.
414-297-3861.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 414-297-1819.