"What do you want?" "Access!"

In class I spend a considerable amount of time on accessibility issues, including employers' restricting accessibility to their premises during union organization attempts. In that regard we discuss Lechmere's importance in establishing outside organizers have no Section 7 right to access an employers premises, Republic Aviation, which restricts employers from prohibiting employees from discussing and soliciting for unionization during non-working time, and Register Guard's denial of employees' access to company e-mail for union purposes. It now appears the Obama Board is willing to consider these issues, big time. More after the jump
Our previous blog posts are here, here and here. Now the NLRB has issues an Invitation to File Briefs in a case, Roundy's Inc. The issue is what standard applies to an employer who refuses to allow union access to its property when it permits other outside individuals, groups, and organizations to use its premises for various activities. The questions presented for briefing are:

1. In cases alleging unlawful employer discrimination in nonemployee access, should the Board continue to apply the standard articulated by the Board majority in Sandusky Mall Co., above?

2. If not, what standard should the Board adopt to define discrimination in this context?

3. What bearing, if any, does Register Guard, 351 NLRB 1110 (2007), enf. denied in part 571 F.3d 53 (D.C. Cir. 2009), have on the Board’s standard for finding unlawful discrimination in nonemployee access cases?