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Anti-Union Activities Will Cost Pick ‘n Saves

CHICAGO (CN) - Pick 'n Save stores in Wisconsin violated federal labor law by ejecting union representatives who were calling for a consumer boycott, the 7th Circuit ruled.

Roundy's Inc., which owns a number of Milwaukee-area Pick 'n Save stores, began remodeling several of its locations in 2005. Concerned that Roundy's was using nonunion contractors that failed to pay the prevailing area standard wage, the Milwaukee Building and Construction Trades Council soon approached.

Roundy's declined to act, however, claiming that contractor selection belonged to the landlords of each store. The union then attempted to organize a boycott of the stores, sending representatives to stand in front of Pick 'n Save locations and distribute literature against Roundy's from April to June.

The handbills accused Roundy's of failing to pass along the savings associated with cheaper construction labor on to consumers. They also claimed that other stores offered more competitively priced products and distributed coupons for their competitors.

"Needless to say, the handbills were extremely unflattering to Roundy's, some even pictured a rat to represent the company," a three-judge panel summarized. "In response, Roundy's ejected the handbillers from the property."

Eventually the National Labor Relations Board complained that Roundy's had illegally discriminated against legitimate union activities by preventing nondisruptive handbilling on its property while permitting nonunion solicitations and distributions.

An administrative law judge ruled in favor of the union, finding that the terms of Roundy's leases for 23 of the 26 stores in question only granted nonexclusive rights to the property's common areas, which was an insufficient property interest under Wisconsin law to oust union handbillers.

Roundy's appealed and the union filed a cross-petition for an enforcement order.

The 7th Circuit affirmed unanimously.

"An employer has no right ... to exclude union representatives engaged in [organizing activities and union-related speech] from areas where it lacks and exclusionary property interest," Judge John Tinder wrote for the court.

Because the leases in question did not grant Roundy's an exclusive easement over the common area, Wisconsin common law did not confer a property right on the stores.

The three-judge panel cited decisions by the 4th, 8th and D.C. Circuits in its decision. While the 8th and D.C. Circuits had ruled in favor of the unions, citing Missouri and Virginia law respectively, the 4th Circuit found that a nonexclusive easement was sufficient under Pennsylvania law to oust unwanted protestors.

"We find that Wisconsin case law is more aligned with Missouri and Virginia law in recognizing a distinction between a property owner's and nonexclusive easement owner's right to exclude unwanted visitors from the common areas," Tinder wrote.

The court also agreed that the ALJ properly barred Wisconsin lawyer Michael Ostermeyer from testifying about state property law on easements.

"Mr. Ostermeyer's opinion as to Wisconsin property law amounts to legal arguments that should be presented to the court in counsel's analysis, not expert opinion testimony," Tinder wrote. "The ALJ instructed Roundy's to include Mr. Ostermeyer's interpretation of Wisconsin state property law in its brief and Roundy's presumably heeded this instruction. As such, we find not only no abuse of discretion, but also no prejudice."

The March 9 decision did not address three Pick 'n Save stores on Roundy's-owned land.

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