Roundy's Inc. v. National Labor Relations Board

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 10-3921 & 11-1292

R OUNDY’S INC.,
Petitioner/Cross-Respondent,

v.

N ATIONAL L ABOR R ELATIONS B OARD ,

Respondent/Cross-Petitioner,

and

M ILWAUKEE B UILDING and C ONSTRUCTION
T RADES C OUNCIL, AFL-CIO,

Intervening Respondent.

Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board.
No. 30-CA-17185

A RGUED S EPTEMBER 28, 2011—D ECIDED M ARCH 9, 2012

Before B AUER, W OOD , and T INDER, Circuit Judges.
2 Nos. 10-3921 & 11-1292

T INDER, Circuit Judge. Roundy’s Inc. operates grocery
stores throughout southeastern Wisconsin under the
name Pick ‘N Save. Milwaukee Building and Construc-
tion Trades Council, AFL-CIO (the Union), a central
body of construction industry local unions in the Mil-
waukee area, met with Roundy’s to discuss its con-
cerns that Roundy’s was using nonunion contractors
who didn’t pay employees the prevailing area standard
wages in the construction and remodeling of its stores.
Unsatisfied with Roundy’s response (Roundy’s took the
position that the selection of contractors was up to its
landlords, but the administrative law judge (ALJ) found
that Roundy’s had some control over the selection pro-
cess), the Union protested and urged a consumer boy-
cott of Roundy’s stores. Union representatives stood
outside Roundy’s stores in the common areas to
distribute handbills accusing Roundy’s of saving money
by using cheap labor to build and remodel its stores and
not passing those savings on to its customers, asking
customers not to patronize Pick ‘N Save, informing cus-
tomers that they would achieve savings by shopping at
competitor stores, pointing out price differences in
Roundy’s products with competitors, and even handing
out coupons for competitors’ products. Needless to say,
the handbills were extremely unflattering to Roundy’s,
some even pictured a rat to represent the company. In
response, Roundy’s ejected the handbillers from the
property.
The General Counsel for the National Labor Relations
Board (Board) issued a complaint against Roundy’s
alleging that it violated Section 8(a)(1) of the National
Labor Relations Act (Act), 29 U.S.C. § 158(a)(1), for its
Nos. 10-3921 & 11-1292 3

discriminatory practice of prohibiting the Union from
handbilling while permitting nonunion solicitations
and distributions on the property. After an evidentiary
hearing before an ALJ on the discrimination theory,
the Board remanded for the ALJ to consider whether
Roundy’s, as a lessee with nonexclusive easements in
the common areas where the Union was handbilling,
held a sufficient property interest under Wisconsin law
to oust nonemployee handbillers. Upon rehearing, the
ALJ found that as a nonexclusive easement holder at
23 of the stores at issue, Roundy’s did not have a state
property right to exclude the handbillers, and thus,
Roundy’s violated the Act by preventing the Union from
engaging in protected Section 7 activities, 29 U.S.C. § 157,
at those locations. The Board affirmed, adopting the
ALJ findings and conclusions in this respect. We agree
with the Board’s interpretation of Wisconsin law and
find that the Board’s application of this law to Sec-
tion 8(a)(1) of the Act had a reasonable basis in law. Thus,
we deny Roundy’s petition for review and grant the
Board’s cross-petition for enforcement of its order.

I. Facts
From April to June 2005, Union representatives distrib-
uted informational handbills in front of 26 Roundy’s
stores around the Milwaukee metropolitan area. Some
of the stores are free standing and others are in
shopping malls. For reasons explained below, this appeal
only concerns 23 of those stores where Roundy’s had
entered into leases for the stores and held nonexclusive
4 Nos. 10-3921 & 11-1292

easements over the common areas, including the private
sidewalks in front of the stores and parking lots, where
the handbilling took place. The handbilling was
peaceful; the Union representatives didn’t picket and
the ALJ found no evidence that they obstructed or inter-
fered with customers’ access to or egress from the stores.
The Union urged a consumer boycott of Roundy’s
stores for its alleged use of contractors who did not
adhere to area wage standards. As we noted, the hand-
bills were extremely unflattering to Roundy’s, and as a
result, Roundy’s took efforts to expel the protestors,
in some instances, calling the police.
The parties stipulated to the relevant lease terms and
property interests at each of the store locations. The
nonexclusive easements generally permit use of the
common areas by Roundy’s and its customers,
employees, and invitees, as well as the landlord and
other tenants of the shopping centers, and their
customers, employees, and invitees. For example, a ma-
jority of the store leases contain the following provision:
Tenant is hereby granted a nonexclusive easement,
right and privilege for itself and its customers,
employees and invitees and the customers, em-
ployees and invitees of any subtenant, concession-
aire or licensee of Tenant to use the [common
areas] without charge with Landlord and other
tenants and occupants of the Shopping Center
and their customers, employees and invitees;
provided, however, no use of the [common areas]
shall be made which detracts from the first-class
Nos. 10-3921 & 11-1292 5

nature of the Shopping Center or obstructs access
to or parking provided for customers of the Shop-
ping Center.
(emphasis added). A few leases provide that the ease-
ment shall be used for all customary and proper pur-
poses. Numerous leases also state that “the landlord
may, with the prior consent of tenant, . . . promulgate
reasonable, nondiscriminatory rules and regulations
for the use of the common areas . . . .”
The leases also contain language setting forth either
Roundy’s or the landlord’s maintenance obligations
with respect to the common areas. A number of the
leases require the landlord to maintain the common
areas “in accordance with good shopping practice,” but
most also require Roundy’s to pay its proportionate
share of those expenses. Other leases require Roundy’s
to pay all costs and expenses for maintaining the
common areas; a few leases require Roundy’s to operate
and maintain the common areas “in accordance with
good real estate practice”; and another gives Roundy’s
the right to take over the landlord’s common area re-
sponsibilities, but there is no evidence that Roundy’s
agreed to take on those responsibilities. None of the
leases provide Roundy’s with explicit authority to eject
trespassers or other unwanted parties from the common
areas.1

1
The ALJ provided a detailed discussion of the Union’s
conduct at each store and the lease terms of the individual
(continued...)
6 Nos. 10-3921 & 11-1292

Brian Pikalek, Roundy’s loss prevention district
manager, supervises security issues for part of Roundy’s
operations. He testified that it’s Roundy’s practice to
exclude what he described as “undesirable” visitors, such
as panhandlers, drunks, skateboarders, handbillers, or
vagrants, from the common areas in front of Roundy’s
leased stores. Such “undesirables” are asked to leave
the property; if they do not leave, the police are called
to remove them. It has never been Roundy’s practice to
consult with the landlord either before or after ejecting
individuals from the common areas and no evidence
was presented that the landlords were aware of
Roundy’s practice of ejecting third parties from the com-
mon areas.

II. Procedural History
The Board’s General Counsel issued a complaint
against Roundy’s alleging that it violated Section 8(a)(1)
of the Act by prohibiting the Union representatives from
handbilling on property owned or leased by Roundy’s
while permitting nonunion solicitations and distribu-
tions on such property. Before the first administrative
hearing, the parties stipulated to the events that occurred
at each store. At the initial hearing, neither party pre-
sented evidence to show that Roundy’s possessed a
sufficient property interest to interfere with the Union’s

1
(...continued)
stores. Although we rely on these findings, we find it unneces-
sary to set them out in detail here.
Nos. 10-3921 & 11-1292 7

handbilling on the subject properties. The ALJ asked the
General Counsel whether the parties’ joint stipulation
meant that handbilling took place on property owned by
Roundy’s. He answered “yes.” At that time, the General
Counsel had not yet received the leases it had sub-
poenaed from Roundy’s and didn’t receive the leases
until after its case-in-chief.
As discovered later, Roundy’s only held nonexclusive
easements in the common areas of the 23 stores at issue
in this appeal. In his post-hearing brief, the General
Counsel argued that Roundy’s interference with the
Union’s handbilling violated the Act notwithstanding
its discriminatory intent because Roundy’s failed to
meet its burden of proving an exclusionary property
interest at the locations where handbilling took place.
The parties refer to this as the “property right” theory.
The ALJ rejected this argument because the General
Counsel had not raised the property right theory during
the hearing and instead, alleged in the complaint that
the Union handbilled “on [Roundy’s] property and/or
property leased by [Roundy’s].” The ALJ explained:
The gravamen of the complaint was that
[Roundy’s’] prohibition of the handbilling was
unlawful because it permitted similar activity by
nonunion entities on that same property. This is
essentially a disparate treatment theory, and the
theory upon which the case was tried. The parties
assumed at all stages of this litigation that
[Roundy’s] had a property interest sufficient to
oust the handbillers. Indeed, the General Coun-
8 Nos. 10-3921 & 11-1292

sel’s basic argument was that [Roundy’s], having
such property interest, permitted similar conduct
by nonunion entities. It is too late now—and a
potential due process problem—for the General
Counsel to change the theory of the case on brief.
The ALJ issued its decision finding that Roundy’s vio-
lated Section 8(a)(1) of the Act by discriminatorily pre-
venting union agents from distributing handbills.
The General Counsel filed an exception to the ALJ’s
refusal to find a violation on the property right theory.
The Board acknowledged that the issue of Roundy’s
property interest appeared to be uncontested during
the hearing but found that the existence of a sufficient
property interest to exclude is a threshold burden that
the employer must meet. Because Roundy’s reasonably
believed that it did not need to prove its property
interest during the hearing before the ALJ, the Board
remanded for further factual development.
On remand, the ALJ allowed the parties to present
evidence on the property right theory, and at the conclu-
sion of the hearing, the parties expressed satisfaction
that the record was complete. The ALJ issued a supple-
mental decision finding that Roundy’s lacked a
sufficient property interest at 23 of the 26 stores, and
thus, Roundy’s’ interference with the handbillers at those
locations violated Section 8(a)(1). The Board issued a
supplemental decision affirming the ALJ’s findings in
this respect. The ALJ dismissed the General Counsel’s
claims as to one store, which the General Counsel doesn’t
dispute. The ALJ found that Roundy’s had a sufficient
Nos. 10-3921 & 11-1292 9

property interest at the remaining two stores, but none-
theless found that Roundy’s violated Section 8(a)(1) at
those locations under the discrimination theory. The
Board severed those stores and they are not part of
this appeal.
Roundy’s also filed an exception with the Board
because of the ALJ’s refusal to hear expert testimony
from Michael Ostermeyer, a Wisconsin lawyer
specializing in real property matters, who sought to
opine about Wisconsin property law on easements. The
ALJ informed Roundy’s that it could simply incorporate
Mr. Ostermeyer’s legal analysis in its argument. The
Board found that the ALJ acted within his discretion to
exclude Mr. Ostermeyer’s testimony.

III. Analysis
We have jurisdiction to review the Board’s order pur-
suant to Section 10(e) and (f) of the Act, 29 U.S.C. § 160(e)
and (f). In reviewing the Board’s decision, we give sub-
stantial deference to both its findings of fact and its
interpretations of the Act. Naperville Ready Mix, Inc. v.
NLRB, 242 F.3d 744, 751 (7th Cir. 2001). When reviewing
the record, we defer to the Board’s inferences and con-
clusions drawn from facts, but we ensure that its
findings fairly and accurately represent the record. See
NLRB v. Clinton Elecs. Corp., 284 F.3d 731, 737 (7th Cir.
2002). “[W]e must determine whether the Board’s
decision is supported by substantial evidence and
whether its legal conclusions have a reasonable basis in
law.” Sears, Roebuck & Co. v. NLRB, 349 F.3d 493, 502 (7th
10 Nos. 10-3921 & 11-1292

Cir. 2003) (quotations omitted). “Substantial evidence
exists if a reasonable mind might accept relevant
evidence as adequate to support the Board’s conclusion.”
Nat’l Steel Corp. v. NLRB, 324 F.3d 928, 931 (7th Cir. 2003).
We defer to the Board’s interpretation of the Act
unless its legal conclusions are “irrational or inconsistent
with the Act.” United Steel, Paper & Forestry, Rubber, Mfg.,
Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO
v. NLRB, 544 F.3d 841, 848 (7th Cir. 2008). Where a
matter involves analysis of state law for which the
Board has no special expertise, however, our review is
de novo. See United Food & Commercial Workers Int’l
Union Local 400 v. NLRB, 222 F.3d 1030, 1035 (D.C. Cir.
2000) (reviewing de novo Board’s determination of
whether employer had sufficient property interest to
exclude union organizers because Board has no special
expertise in interpreting Virginia law); see also Bob Evans
Farms, Inc. v. NLRB, 163 F.3d 1012, 1019 (7th Cir. 1998)
(stating that extent to which subject matter invokes
special expertise of Board is significant when determining
applicable standard of review); NLRB v. Americare-New
Lexington Health Care, 124 F.3d 753, 757 (6th Cir. 1997)
(“[C]ourts do not defer to the Board when it decides a
legal question beyond its expertise.”); Jones Dairy Farm v.
NLRB, 909 F.2d 1021, 1028 (7th Cir. 1990) (“We owe
the Board no special deference in matters of contractual
interpretation.”).
Where the Board adopts the ALJ’s findings of fact
and conclusions of law, as it did in relevant part here,
we review the ALJ’s determinations. See SCA Tissue N. Am.
Nos. 10-3921 & 11-1292 11

LLC v. NLRB, 371 F.3d 983, 988 (7th Cir. 2004); see
also Spurlino Materials, LLC v. NLRB, 645 F.3d 870, 877-78
(7th Cir. 2011).

A. Remand for Further Proceedings
Roundy’s argues that the Board erred in remanding the
case for further evidence on the General Counsel’s prop-
erty right theory because this theory was not raised in
the complaint or during the hearing before the ALJ. In
fact, during the initial hearing, the General Counsel
informed the ALJ that Roundy’s owned the properties.
The Board, however, reasoned that Roundy’s had the
threshold burden of demonstrating a sufficient property
interest entitling it to exclude handbillers, so it remanded
the case to afford Roundy’s an opportunity to meet that
burden.2

2
The General Counsel argues that we cannot consider this
argument because Roundy’s failed to object to the Board’s
remand order. Although a party before the Board can, “because
of extraordinary circumstances,” file for reconsideration and
state “with particularity the material error claimed,” 29 C.F.R.
§ 102.48(d)(1), a motion for reconsideration need not be filed
to exhaust administrative remedies, see 29 C.F.R. § 102.48(d)(3).
The procedures in Section 102.48(d) are not mandatory;
they help to ensure that the Board has adequate notice of
objections. See NLRB v. Wayne Transp., a Div. of Wayne Corp., 776
F.2d 745, 749 n.5 (7th Cir. 1985). Roundy’s wasn’t required to
file a motion for reconsideration to assert its dissatisfaction
with the Board’s ruling. The Board was aware of Roundy’s
(continued...)
12 Nos. 10-3921 & 11-1292

We find that the Board acted within its discretion
in remanding the case for further development of the
property right theory. The Second Circuit recently ad-
dressed a similar issue in Service Employees International
Union, Local 32BJ v. NLRB, 647 F.3d 435 (2d Cir. 2011).
In that case, the Board had determined that it lacked
authority to consider an issue that was not raised by the
General Counsel before the ALJ. Id. at 446. The Second
Circuit disagreed, reasoning that the “Board may
identify a violation of the Act that was not specifically
alleged in the complaint or advanced by the General
Counsel if the parties had sufficient notice to satisfy
due process.” Id. at 447. The court remanded the case
because the Board misunderstood its discretion to
decide uncharged issues that are “closely connected to
the subject matter of the complaint and ha[ve] been
fully litigated.” Id. at 447-48 & n.7. The court stated that
the Board could consider whether reaching the issue
would comport with due process. Id. at 449. The court
concluded that “if the Board finds that due process con-
cerns do preclude it from reaching this issue, it should
determine whether remand is appropriate . . . to pro-
vide the Respondent with an opportunity to litigate a
potential violation of the Act so as to remedy any
prejudice the Respondent might have suffered by the

2
(...continued)
position that the General Counsel had waived the property
right theory; the Board disagreed. A motion to reconsider
this ruling would not have furthered the purpose of Section
102.48(d).
Nos. 10-3921 & 11-1292 13

Board identifying a violation on a theory not alleged in
the complaint or advanced by the General Counsel.” Id.
at 449 (citing Enloe Med. Cntr., 346 NLRB 854, 855-56
(2006)).
We follow the reasoning of the Second Circuit and
find that the Board acted within its discretion in remand-
ing the property right theory, which is closely connected
to the subject matter of the underlying complaint. The
Board concluded that “the existence of a sufficient
property interest is a threshold burden that the em-
ployer must carry in order to show that it is entitled to
exclude others from the property in question,” citing
Calkins d/b/a Indio Grocery Outlet, 323 NLRB 1138, 1141
(1997), enforced, NLRB v. Calkins, 187 F.3d 1080 (9th
Cir. 1999). As more fully discussed below, we find this
burden-shifting rule rational and consistent with the
Act, and therefore, entitled to deference. The Board
correctly recognized that Roundy’s reasonably believed
it did not have to prove its property interest because
the issue had gone uncontested during the hearing
before the ALJ. Accordingly, the Board remanded for a
full evidentiary hearing on the issue. Roundy’s was
given the opportunity to present evidence and argu-
ment, and as such, had adequate due process.
We emphasize that the Board had discretion to remand
and could have concluded that General Counsel was
barred from raising the issue. See Laborers Local 190 (VP
Builders, Inc.), 355 NLRB No. 90, 2010 WL 3279401, *4
(declining to remand case for ALJ to address an unliti-
gated theory because doing so would give “the General
14 Nos. 10-3921 & 11-1292

Counsel an unwarranted ‘second bite of the apple’ by
permitting litigation of an issue that he has effectively
chosen not to pursue”). This case would have warranted
such a conclusion considering that the General Counsel
alleged in the complaint that the handbilling occurred on
property owned or leased by Roundy’s and essentially
disavowed reliance on a property right theory before
the ALJ. See Paul Mueller Co., 332 NLRB 1350, 1350-51
(2000) (declining to give General Counsel a “second bite
of the apple” through remand that would have ef-
fectively permitted litigation of a theory General Counsel
had disclaimed).
We, however, uphold the Board’s decision to remand
given that Roundy’s had the burden to show it
possessed an exclusionary property interest as a
threshold matter (more on this later), this issue was
closely connected to the subject matter of the underlying
complaint, and Roundy’s was afforded a full and fair
opportunity to present argument on this issue on remand.

B. Exclusion of Expert Witness
Roundy’s asserts that it was prejudicial error to
exclude its expert, Mr. Ostermeyer, from testifying about
Wisconsin property law and the nature of Roundy’s’
property interests at each of its leased facilities. The
ALJ barred Mr. Ostermeyer’s testimony because he in-
tended to testify as to an ultimate legal opinion, citing
Rule 702 of the Federal Rules of Evidence. The ALJ in-
formed Roundy’s that it could submit Mr. Ostermeyer’s
legal analysis in its brief. The Board found that the ALJ
Nos. 10-3921 & 11-1292 15

acted within his discretion in excluding Mr. Ostermeyer’s
testimony in light of the ALJ’s obligation to make a com-
plete but nonvoluminous record, and further reasoned
that Mr. Ostermeyer merely sought to present legal
conclusions regarding Wisconsin law that the ALJ was
capable of interpreting without expert opinion.
We review the Board’s evidentiary rulings for abuse
of discretion. See NLRB v. Domsey Trading Corp., 636 F.3d
33, 37 (2d Cir. 2011). The Board is required to conduct
its evidentiary proceedings in accordance with the
Federal Rules of Evidence “so far as practicable.” See
29 U.S.C. § 160(b); see also NLRB v. Augusta Bakery Corp.,
957 F.2d 1467, 1479 (7th Cir. 1992). We find no abuse
of discretion in the ALJ’s decision to bar Mr. Ostermeyer
from testifying. Rule 704(a) of the Federal Rules of Evi-
dence states that “[a]n opinion is not objectionable just
because it embraces an ultimate issue.” The committee
notes to that Rule explain however that Rule 702, which
requires that opinion be helpful to the trier of fact,
and Rule 403, which provides for exclusion of evidence
that wastes time, “afford . . . assurance[ ] against the
admission of opinions which would merely tell the [trier
of fact] what result to reach . . . .” Fed. R. Evid. 704, 1972
advisory committee notes. Rules 702 and 704 “prohibit
experts from offering opinions about legal issues that
will determine the outcome of a case.” See United States
v. Sinclair, 74 F.3d 753, 757 n.1 (7th Cir. 1996); see also
Good Shepherd Manor Found. v. City of Momence, 323 F.3d
557, 564 (7th Cir. 2003) (affirming district court’s ruling
that law professor couldn’t testify to conclusions that
city’s actions violated Fair Housing Amendments Act).
For instance, we have explained:
16 Nos. 10-3921 & 11-1292

Legal arguments are costly enough without being
the subjects of “experts’ ” depositions and exten-
sive debates in discovery, in addition to presenta-
tions made directly to the judge. If specialized
knowledge about tax or demutualization would
assist the judge, the holders of that knowledge
can help counsel write the briefs and present oral
argument. In this court each side is represented
by two law firms, and a professor of law also
has signed plaintiffs’ briefs. Enough!
RLJCS Enters., Inc. v. Prof. Benefit Trust Multiple Emp’r
Welfare Benefit Plan & Trust, 487 F.3d 494, 498 (7th Cir. 2007)
(citations omitted); see also Sunstar, Inc. v. Alberto-Culver
Co., 586 F.3d 487, 495 (7th Cir. 2009) (explaining that
“judges are experts on law,” and so “when a federal
court applies state law, the court does not permit expert
testimony on the meaning of the ‘foreign’ law.”); Bodum
USA, Inc. v. La Cafetiere, Inc., 621 F.3d 624, 632 (7th Cir.
2010) (Posner, J.,concurring) (same).
The court’s reasoning in RLJCS is particularly instruc-
tive here. 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. 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. See NLRB v.
Midwestern Pers. Servs., Inc., 508 F.3d 418, 427 (7th Cir.
2007) (remand not necessary “unless there is reason to
Nos. 10-3921 & 11-1292 17

believe that the remand might lead to a different result,”
(citing Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989))).

C. Violations of Section 8(a)(1)
The General Counsel asserts that Roundy’s violated
Section 8(a)(1) of the Act by ousting the Union handbillers,
who were engaged in protected Section 7 activity, from
private property because Roundy’s didn’t have an
exclusionary right under its nonexclusive easements.
Section 8(a)(1) makes it an unfair labor practice for an
employer “to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in
[Section 7] . . . .” 29 U.S.C. § 158(a)(1). Section 7 of the Act
provides that “[e]mployees shall have the right to self-
organization, to form, join, or assist labor organizations . . .
and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.” 29 U.S.C. § 157.
Nonemployee organizers are subject to far greater
restrictions with respect to their right to access private
property than employee organizers. See generally NLRB
v. Babcock & Wilcox Co., 351 U.S. 105 (1956) and Lechmere,
Inc. v. NLRB, 502 U.S. 527 (1992). “Nonemployee” means
union representatives who are not employees of the
targeted employer. See O’Neil’s Markets v. NLRB, 95 F.3d
733, 736 n.4 (8th Cir. 1996). An employer may generally
“post his property against nonemployee distribution of
union literature if reasonable efforts by the union
through other available channels of communication
will enable it to reach the employees with its message.”
18 Nos. 10-3921 & 11-1292

Babcock, 351 U.S. at 112. It is only where such access is
infeasible that it is proper to balance the employees’ and
employers’ rights. Lechemere, 502 U.S. at 538; see also
O’Neil’s Markets, 95 F.3d at 736-37.
However, an employer has no right under the Bab-
cock/Lechmere framework to exclude union representa-
tives engaged in Section 7 activity from areas where it
lacks an exclusionary property interest. O’Neil’s Markets,
95 F.3d at 738-39 (citing Johnson & Hardin Co., 305 NLRB
690 (1991), enf’d, 49 F.3d 237 (6th Cir. 1995)); see also
Glendale Assoc. v. NLRB, 347 F.3d 1145, 1151 (9th Cir.
2003) (“Since Lechmere was decided, this Court, along with
other Circuits and the Board, have found Lechmere to
be inapplicable to cases where an employer excluded
nonemployee union representatives in the absence of a
state property right to do so.”). The Supreme Court has
explained that “[t]he right of employers to exclude
union organizers from their private property emanates
from state common law, and while this right is not super-
seded by the NLRA, nothing in the NLRA expressly
protects it.” Thunder Basin Coal Co. v. Reich, 510 U.S. 200,
217 n.21 (1994). Thus, “an employer’s exclusion of union
representatives from private property as to which the
employer lacks a property right entitling it to exclude
individuals . . . violates Section 8(a)(1), assuming the
union representatives are engaged in Section 7 activities.”
Calkins, 187 F.3d at 1088 (quotations omitted).
Courts have found, as consistent with Lechmere, that
an employer must have a property right to exclude
even nonemployee protestors that are engaged in
Nos. 10-3921 & 11-1292 19

nonorganizational activities directed at consumers. See,
e.g., O’Neil’s Markets, 95 F.3d at 737; see also Calkins, 187
F.3d at 1088-89. “Although Babcock and Lechmere in-
volved organizational rights, section 7 protects other, non-
organizational activities,” such as a union’s peaceful
area standards activity. O’Neil’s Markets, 95 F.3d at 737;
see also Calkins, 187 F.3d at 1089 (The “protection of con-
sumer boycott and area standards picketing falls within
the plain meaning of . . . Section 7.”).3 But area-standards
handbilling may warrant less protection than even
nonemployee organizational activity under Section 7.
See Sandusky Mall Co. v. NLRB, 242 F.3d 682, 691 (6th Cir.
2001); see also Salmon Run Shopping Ctr. LLC v. NLRB,
534 F.3d 108, 115 n.1 (2d Cir. 2008).
Roundy’s urges us to place the burden on the
General Counsel to show that Roundy’s did not have an
exclusionary property interest,4 stating that a careful

3
Roundy’s states in a conclusory manner that “General
Counsel did not carry its initial burden of showing that the
Council’s handbillers were engaged in activity protected by
Section 7.” Roundy’s argument, consisting of one sentence, is
undeveloped and not supported by pertinent authority, and
therefore waived. Argyropoulos v. City of Alton, 539 F.3d 724,
739 (7th Cir. 2008). The Board found that the handbilling
was protected concerted activity; we have no occasion to
review that finding.
4
Roundy’s points out that some former Board members
have taken the minority position that the respondent should
have the initial burden of merely showing a colorable
(continued...)
20 Nos. 10-3921 & 11-1292

reading of Lechmere reveals that it does not require
the employer to prove an exclusionary interest in cases
involving nonemployee union solicitors. The Board
however, since Lechmere, has consistently required the
employer to meet a threshold burden of establishing
“that it had at the time it expelled the union representa-
tives, an interest which entitled it to exclude individuals
from the property.” See Calkins, 323 NLRB at 1141-42,
enf’d 187 F.3d 1080; see also Research Found. of the State
Univ. of N.Y. at Buffalo, 355 NLRB No. 170, 2010 WL
3446127, *2. The Board has reasoned that if the employer
fails to meet this burden, “there is no actual conflict
between private property rights and Section 7 rights,
and the employer’s actions therefore will be found
violative of Section 8(a)(1).” NLRB v. A & E Food Co. 1, Inc.,
339 NLRB 860, 862 (2003) (quotations omitted).
Other circuit courts agree with this rationale, ex-
plaining that “when an employer lacks an interest
entitling it to exclude individuals engaged in Section 7
conduct, Lechmere’s accommodation analysis is not trig-
gered.” Calkins, 187 F.3d at 1088; see also Glendale Assoc., 347
F.3d at 1153 (explaining that employers’ property rights
must be respected, but employers need not be accorded

4
(...continued)
property right, with the burden then shifting back to General
Counsel to prove that the respondent lacked an exclusionary
interest. See Farm Fresh, Inc., 326 NLRB 997, 1002 n.26, 1003 n.1.
(1998) (Board Members Hurtgen and Gould); Victory Markets,
Inc. d/b/a Great Am., 322 NLRB 17, 23 n.21 (1996) (Board
Member Cohen).
Nos. 10-3921 & 11-1292 21

greater property rights than they actually possess);
United Food & Commercial Workers Int’l Union Local 400 v.
NLRB, 222 F.3d 1030, 1034 & n.5 (D.C. Cir. 2000) (“If the
employer is unable to meet the burden of demonstrating
the requisite property interest, its exclusion of union
agents from the area constitutes a violation of section
8(a)(1).”), and cases cited therein. The Court’s decision
in Lechmere reflects a concern for private property rights
and leaves undisturbed previous Board holdings in-
volving employers who lack a sufficient property right
to exclude. O’Neil’s Markets, 95 F.3d at 738-39.
The Board’s rule that the employer must meet a thresh-
old burden of showing a sufficient property interest to
invoke the Lechmere framework (even in cases involving
area standards handbilling targeted at an employer’s
customers) is not inconsistent with Lechmere and is a
rational interpretation of the Act, so we decline to
adopt the alternative burden-shifting rule proposed by
Roundy’s. We must, therefore, decide whether Roundy’s
met its burden of showing, under Wisconsin law, that
its nonexclusive easements gave it an exclusionary
interest to oust the peaceful handbillers from the
common areas. See Glendale Assocs., 347 F.3d at 1151. We
conclude that it has not.
Because the Board has no specialized expertise in inter-
preting state property law, we review this issue de novo.
See United Food, 222 F.3d at 1035; see also Borek Cranberry
Marsh, Inc. v. Jackson Cnty., 785 N.W.2d 615, 621 (Wis. 2010).
Wisconsin courts have not addressed the precise issue
before us, but have set forth general principles that
22 Nos. 10-3921 & 11-1292

guide our analysis. “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 privi-
leges.” Gallagher v. Grant-Lafayette Elec. Coop., 637 N.W.2d
80, 85 (Wis. Ct. App. 2001). “An easement creates a
nonpossessory right to enter and use land in the
possession of another and obligates the possessor not to
interfere with the uses authorized by the easement.” Borek
Cranberry Marsh, 785 N.W.2d at 621 (quoting Restatement
(Third) of Property: Servitude § 1.2(1) (2000)); see also
Richard R. Powell and Patrick J. Rohan, Powell on Real
Property § 34.01 (2011).
Roundy’s doesn’t dispute that the leases only gave
it nonexclusive easements in the common areas. Where
the easement grant doesn’t expressly make it exclusive,
the easement holder “does not acquire dominion over
the property affected, but is entitled ‘only to a reasonable
and usual enjoyment thereof.’ ” Linter v. Office Supply Co.,
219 N.W. 420, 425 (Wis. 1928). Nevertheless, Roundy’s
argues that it had an exclusionary right in the easements
because it had the obligation to maintain the common
areas (or pay the landlord for maintenance). But mainte-
nance obligations, alone, don’t establish a right to ex-
clude. See, e.g., Garrett v. O’Dowd, 775 N.W.2d 549, 553-54
(Wis. Ct. App. 2009) (even where agreement obligated
grantees to maintain and pay taxes on the easement,
the easement was nonexclusive where the agreement
didn’t state otherwise); see also O’Neil’s, 95 F.3d at 739
(applying Missouri law) (employer’s exercise of mainte-
Nos. 10-3921 & 11-1292 23

nance and control over property could not override the
unambiguous language in lease granting nonexclusive
easement); United Food, 222 F.3d at 1034-35 (applying
Virginia law) (nonexclusive easement didn’t provide
employer with right to oust nonemployee organizers
even though employer had obligations to clean and
maintain those areas). Further, numerous leases indicate
that the landlord, albeit with Roundy’s consent, may
“promulgate reasonable, nondiscriminatory rules and
regulations for the use of the common areas,” suggesting
that Roundy’s cannot promulgate such rules on its own.
Although Roundy’s had a practice of ejecting unwanted
third parties from the common areas surrounding its
stores, there was no evidence that its landlords were
aware (or otherwise approved) of this conduct.
Roundy’s also argues that Wisconsin statutory law
provides even nonexclusive easement owners with a
civil action to oust those that interfere with the use and
enjoyment of the easement, citing to Wis. Stat. §§ 840.01
et seq. and Wis. Stat. §§ 844.01 et seq.5 Section 844.01(1)

5
The ALJ found that Roundy’s, as easement holder, lacked
a possessory interest, precluding it from bringing a trespass
action under Wisconsin Statute § 943.13(1m)(b). Wisconsin
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.” Wis. Stat.
§ 943.13(1m)(b) (emphasis added). The statute does not define
“occupant” and we are not aware of any Wisconsin case
that addresses whether a grantee of a nonexclusive easement
(continued...)
24 Nos. 10-3921 & 11-1292

provides that “[a]ny person owning or claiming an
interest in real property may bring an action claiming
physical injury to, or interference with, the property or
the person’s interest therein . . . .” Section 840.01 defines
“interest in real property” to include easements, and
Section 844.01(3) defines “[i]nterference” as “any
activity . . . which lessens the possibility of use or enjoy-
ment of the interest.” The statute establishes remedies for
interfering with such property interests that include
damages and injunctive relief. See Wis. Stat. § 840.03(1)
(“Any person having an interest in real property may
bring an action relating to that interest . . . .”). 6 Roundy’s
asserts that under this statute, it has a right to bring
a civil action to enforce and protect its interests in
the easements.
Section 844.01(1), however, doesn’t create an independ-
ent cause of action; it is a remedial and procedural

5
(...continued)
is an “occupant” under the statute. We do not need to
resolve this issue because Roundy’s concedes (for the sake
of argument) that the ALJ correctly determined that
Roundy’s wasn’t an “occupant” under Wisconsin’s trespass
statute.
6
The statute states that no remedy shall be denied on the
ground that the plaintiff is not in possession unless a statute
requires possession. See Wis. Stat. § 840.04. However, a
person who does not have possession cannot bring an
action under that chapter without first notifying the person
with possession and alleging that the person with possession
refuses to bring the action. See Wis. Stat. § 844.15(2). The
person with possession must be joined as a defendant. See id.
Nos. 10-3921 & 11-1292 25

statute that sets forth the remedies available when a
cause of action exists. See Menick v. City of Menasha, 547
N.W.2d 778, 782 (Wis. Ct. App. 1995) (citing Shanak v. City
of Waupaca, 518 N.W.2d 310, 320 (Wis. Ct. App. 1994)
(stating that Section 844.01 “creates no rights or duties.
It does not purport to create a cause of action. It is a
remedial and procedural statute.”)). In other words,
Section 844.01 only provides remedies for persons who
are injured as a result of an interference with their
interests in real property. See Schultz v. Trascher, 640
N.W.2d 130, 139 (Wis. Ct. App. 2001).
Roundy’s’ reliance on Section 844.01 is therefore mis-
placed. Roundy’s must show under Wisconsin common
law that it had a sufficient property interest to oust the
handbillers. Wisconsin courts have maintained that “[a]
written easement holder has the right to use the ease-
ment in accordance with the express terms of the
easement grant.” Grygiel v. Monches Fish & Game Club, Inc.,
787 N.W.2d 6, 14 (Wis. 2010) (citing Hunter v. McDonald,
254 N.W.2d 282, 285 (Wis. 1977)). The language of the
easement grant determines the primary purposes of the
easement. See id.; see also Powell on Real Property § 34.12.
“[E]very easement carries with it by implication the
right to do what is reasonably necessary for the full
enjoyment of the easement in light of the purpose for
which it was granted.” Gallagher, 637 N.W.2d at 86. “An
obstruction or disturbance of an easement is anything
which wrongfully interferes with the privilege to which
the owner of the easement is entitled by making its use
less convenient and beneficial than before. Obstructions
or disturbances are unauthorized and constitute nui-
26 Nos. 10-3921 & 11-1292

sances.” McDonald, 254 N.W.2d at 285-86 (quoting 28 C.J.S.
Easements, § 96).
Because Roundy’s has rights to the extent of its nonex-
clusive use in the easements, it can enjoin third parties
when they unreasonably interfere with this use. See id.
at 285 (stating that owner of property may not unreason-
ably interfere with easement holder’s use); see also Linter
v. Augustine Furn. Co., 225 N.W. 193, 194 (Wis. 1929)
(allowing nonexclusive easement holder to seek injunc-
tive relief where blockage of alley by non-owner for
five minutes several times a day was material and unrea-
sonable); Restatement of Property § 511 (explaining that
an easement holder has the right to be free from interfer-
ence by third parties); Powell on Real Property § 34.17
(easement owner can bring action to enjoin interference
with easement by third parties). But as noted, the interfer-
ence must be unreasonable with the easement’s owner’s
intended use. See Linter, 225 N.W.2d at 194; see also
Vance v. Ford, 67 P.3d 412, 417-18, 422 (Or. Ct. App. 2003)
(requiring a showing of “substantial” or “unreasonable”
interference with easement). Physical encroachment of
the easement is not necessary to unreasonably interfere
with its intended use. See McDonald, 254 N.W.2d at 286.
A few leases indicate that the “the easement shall be
used for all customary and proper purposes” and others
state that “no use of the [common areas] shall be
made which detracts from the first-class nature of the
Shopping Center . . . .” Still others require the landlord
or tenant to maintain the common areas “in accordance
with good shopping practice.” The easements are
Nos. 10-3921 & 11-1292 27

clearly intended to provide Roundy’s, its employees,
customers, and invitees (and the other tenants’ employees,
customers, and invitees) with ingress and egress to the
stores, but are not so limited; rather, they are intended
for use in a manner conducive to the commercial busi-
nesses that share those areas. The ultimate question,
therefore, is whether the handbillers’ actions unrea-
sonably interfered with this purpose of the easements?
To answer this question, it is helpful to look at other
circuit court decisions addressing similar questions
under the laws of various states.
The Eighth Circuit in O’Neil’s found that the nonex-
clusive easement granted to O’Neil’s didn’t provide it
with direct authority to exclude persons from the
sidewalk in front of its store. 95 F.3d at 739. The nonex-
clusive easement in that case was for “ingress, egress,
and parking.” Id. at 734. O’Neil’s prohibited union repre-
sentatives from peacefully distributing handbills to its
customers while on the sidewalk. Id. at 735. The court
noted that under Missouri property law, an easement is
a nonpossessory interest in land that entitles the owner
to “a limited use or enjoyment of the land in which the
interest exists.” Id. at 739 (quotations omitted). “An
easement owner ‘is debarred from actions traditionally
established for the protection of a possession, such as
trespass, writ of entry, and ejectment, because the ease-
ment owner does not have the prerequisite possession.’ ”
Id. (quotations omitted). Interference with an easement
under Missouri law lies instead in a nuisance action.
Id. Because the record didn’t support an inference that
the union’s activities interfered with the right of
28 Nos. 10-3921 & 11-1292

O’Neil’s, its employees, or customers to use the easement
property, O’Neil’s couldn’t exclude the handbillers. Id.;
see also Johnson & Hardin, 49 F.3d at 240-41 (finding em-
ployer violated § 8(a)(1) by ousting peaceful handbillers
who weren’t interfering with the employer’s use of the
nonexclusive easement for ingress and egress to its pre-
mises); see also A & E Food Co., 339 NLRB at 863-64 (re-
spondent had no authority under nonexclusive ease-
ment to exclude union agents from the shopping center
property).
The D.C. Circuit similarly found that a nonexclusive
easement didn’t provide the employer with the right to
oust handbillers from outside its storefront. See United
Food, 222 F.3d at 1034-35. The court noted that under
Virginia law, the easement holder couldn’t bring a
trespass claim and only the owner or lessee of the side-
walks had the authority to exclude the organizers. Id. at
1036. Because there was no evidence in the leases that
Farm Fresh had control over the sidewalks and Farm
Fresh could only use the sidewalks in common with other
co-tenants, it lacked power to exclude those it disliked
from the area. Id. The court reasoned, “[w]e are unable
to see why the power to expel peaceful organizers from
an adjacent sidewalk is reasonably necessary for the use
of leased property.” Id. at 1037. Easements of access, the
court found, don’t entitle employers to exclude union
representatives from adjacent common areas. Id. Because
there was no evidence that the union representative
impeded access to the store or interfered in any way with
Farm Fresh’s obligation to clean and maintain the side-
Nos. 10-3921 & 11-1292 29

walks, the employer lacked the requisite property
interest to exclude the organizers. Id. at 1038.
The Fourth Circuit, analyzing Pennsylvania law, came
to a different conclusion in Weis Markets, Inc. v. NLRB, 265
F.3d 239, 246 (4th Cir. 2001). The court in Weis found
that a nonexclusive easement under Pennsylvania law
gave the employer sufficient property rights to oust
handbillers from the sidewalk. The court based its ruling
on a Pennsylvania Supreme Court case that found that
a nonexclusive easement holder and property owner
could oust union representatives from common areas
and in doing so, indicated that the easement holder had
rights comparable to the property owner. Id. at 247 (citing
Logan Valley Plaza, Inc. v. Amalgamated Food Emps. Union,
Local 590, AFL-CIO, 227 A.2d 874 (Pa. 1967), see Weis,
265 F.3d at 247-48 for subsequent procedural history).
The Pennsylvania Supreme Court in Logan Valley rea-
soned that the invitation to the public was limited to
those who might benefit the easement holder’s and
owner’s enterprises, including potential customers as
well as the employees of the shopping center. Id. (citing
Logan Valley Plaza, 227 A.2d at 877). Based on this
directive from the Pennsylvania Supreme Court, the
Fourth Circuit concluded that because the union
organizers were not “members of the public who might
benefit Weis’ enterprise, . . . their uninvited intrusion
on the private property, the easement of Weis, was unlaw-
ful under the real estate law of Pennsylvania, which
prevails here.” Id. at 248.
Even if Pennsylvania provides easement owners with
rights akin to property owners for purposes of excluding
30 Nos. 10-3921 & 11-1292

unwanted visitors, as found in Weis, see also Kao v.
Haldeman, 728 A.2d 345, 349 (Pa. 1999), we are called
upon to use our best judgment to estimate how the Wis-
consin Supreme Court would decide this issue. See Blood
v. VH-1 Music First, No. 10-3729, ___ F.3d ___, 2012 WL
402046, *2 (7th Cir. Feb. 9, 2012). 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. The Board
properly applied Wisconsin law when concluding
that peaceful union protestors, who do not obstruct pa-
trons’ ingress or egress or otherwise disrupt their
shopping at Roundy’s, are not unreasonably interfering
with Roundy’s use and enjoyment of its easement. We
recognize that an interference under Wisconsin law need
not be physical, see McDonald, 254 N.W.2d at 286, and
the easements at issue aren’t necessarily limited to
ingress and egress, but the ALJ specifically found that
the handbillers were engaged in peaceful conduct pro-
tected by Section 7, and there is nothing in the record to
show that they were disruptive or that customers were
inconvenienced or disconcerted by their presence.
Under these facts to which we limit our holding, we
do not find that Roundy’s had a right under Wisconsin
property law to exclude the Union representatives.
Because nonexclusive easement holders do not have
property rights comparable to owners or lessees under
Wisconsin law (they do not hold possessory interests),
the Babcock/Lechmere framework doesn’t apply, and the
Board had to determine how such intermediate property
Nos. 10-3921 & 11-1292 31

rights intersect with Section 7 rights. The Board’s finding
that Roundy’s’ property rights under Wisconsin law
were insufficient to override the nonemployees’ Section 7
rights was reasonable. The Board is entitled to a certain
degree of deference when engaging in such line drawing
in the context of labor relations under the Act. See Lineback
v. Irving Ready-Mix, Inc., 653 F.3d 566, 572 (7th Cir. 2011);
see also Johnson & Hardin, 49 F.3d at 242 (affording the
Board’s decision—that the employer lacked a property
right entitling it to exclude union organizers and there-
fore violated § 8(a)(1) of the Act—deference).
It was Roundy’s burden to prove that it had a state
property interest sufficient to oust the nonemployee
handbillers. We conclude that Roundy’s has not met that
burden, that the Board’s factual findings were sup-
ported by substantial evidence, and that the Board’s
legal conclusion—that a store owner who has only a
nonexclusive easement in the common areas violates
Section 8(a)(1) when excluding peaceful, nondisruptive
handbillers engaged in protected Section 7 activities—
is rational and consistent with the Act.

IV. Conclusion
For the foregoing reasons, Roundy’s petition for
review is D ENIED and the Board’s cross-petition for en-
forcement of its order is G RANTED .

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