Seventh Circuit Review


Has the Supreme Court's concern that employers can envelop themselves in a “cordon sanitaire” of parking lots, berms, and strip malls to insulate themselves from employees' lawful union organizing activities finally come true? In the seminal Lechmere, Inc. v. National Labor Relations Board, the Supreme Court interpreted workers' § 7 organizing rights as being inherently limited by state property laws. However, this ruling was effectively limited by the Court's policy concern of not suborning trespass through national labor policy. However, since Lechmere was decided, courts have expressed deference to state property rights, defining easements and related property interests to a degree that have begun to implicate two doctrines of federal labor law preemption, known as Garmon and Machinists preemption.

The Seventh Circuit in Roundy's v. National Labor Relations Board had an opportunity to correct this drift by explicitly rejecting the premise of the employer's defense to a charge of unlawful exclusion of union organizers from a shopping center easement. The Board won its case, but the employer's raised defense—reliance on a state statute defining the cause of action of those with injured property interests—is emblematic of the Lechmere drift and presented the court with an opportunity to definitively correct this expansion.

This Note explores the Seventh Circuit's decision in Roundy's v. NLRB in light of National Labor Relations Act preemption and state property laws defining the rights of property interest holders, particularly in easements. It suggests that, except for state laws defining trespass, any law that gives non-possessors an interest sufficient to exclude lawful § 7 union organizing activity is preempted under the Machinists doctrine.

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