United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2020 Decided March 5, 2021

No. 20-1027

UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL

400,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

KROGER LIMITED PARTNERSHIP I,

INTERVENOR

On Petition for Review of an Order

of the National Labor Relations Board

Amanda M. Jaret argued the cause for petitioner. With her

on the briefs were Carey R. Butsavage, Peter J. Ford, and James

B. Coppess.

Milakshmi V. Rajapakse, Attorney, National Labor

Relations Board, argued the cause for respondent. With her on

the brief were Peter B. Robb, General Counsel, Ruth E. Burdick,

Acting Deputy Associate General Counsel, David Habenstreit,

Assistant General Counsel, and Julie Brock Broido, Supervisory

Attorney.
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King F. Tower and Frank Friedman were on the brief for

intervenor Kroger Limited Partnership I in support of

respondent.

Before: SRINIVASAN, Chief Judge, HENDERSON, Circuit

Judge, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

RANDOLPH, Senior Circuit Judge: United Food and

Commercial Workers, Local 400 petitions for review of a

National Labor Relations Board decision dismissing an unfair

labor practice complaint against Kroger Limited Partnership I.

368 N.L.R.B. No. 64 (2019). The Board contends that we lack

jurisdiction to consider Local 400’s objection to its decision.

Kroger operated grocery stores throughout the Mid-Atlantic

region, including Store 538 in Portsmouth, Virginia. The

company leased space for Store 538 in a multi-tenant shopping

plaza until April 11, 2015, when Kroger permanently closed the

store. Under the lease agreement, Kroger could invoke its

landlord’s “no[-]solicitation/no[-]loitering rule” prohibiting “all

soliciting, loitering, handbilling and picketing for any cause or

purpose whatsoever . . . within the Parking Areas and Common

Facilities.” 368 N.L.R.B. No. 64 at *2. A March 2014 letter

from the landlord to Kroger stated that the proscription applied

to “any protesting, demonstrating, picketing, hand billing, or

related disruptive activities on the premises . . . (whether or not

involving a labor union)[.]” Id. at *3.

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As to the reason for the landlord’s 2014 letter, the only evidence

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was the surmise of a former Store 538 manager, in testimony at the

hearing on the complaint, that he “believe[d the letter] was due to the

fact that the Union had come and wanted to do some solicitation at the
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Over the years, Kroger did not object to charitable and civic

groups who sought to raise funds or promote their organization

in front of Store 538. These groups included the Girl Scouts, the

Lions Club, the Salvation Army (which the company’s policy

supported), a breast-cancer awareness group, the American Red

Cross, and local firefighters. On one occasion, a Kroger

manager did ask a church group to leave, but the group returned

several times without incident.

When Kroger decided to close Store 538, tensions mounted.

Local 400 represented a unit of employees at the store. Kroger

gave the employees the option of transferring to other Kroger

stores, but not to two newly-opened stores nearby. The union

opposed Kroger’s decision. In the shopping center parking lot,

two union agents — who were not Kroger employees — began

soliciting Kroger customers to sign a boycott petition. The store

manager presented the landlord’s 2014 letter to the union agents

and asked them to leave. They refused and stated that “they

would only listen to the blue[.]” J.A. 42. A Kroger manager

called the police. After the police arrived, the union members

departed.

Local 400 charged Kroger with violating § 8(a)(1) of the

National Labor Relations Act. The Acting Regional Director

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issued a complaint, alleging that Kroger violated the Act by

“selectively and disparately” enforcing the policy set forth in the

lease and in the landlord’s letter. J.A. 124–25.

store.” J.A. 66.

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“It shall be an unfair labor practice for an employer —

(1) to interfere with, restrain, or coerce employees in the exercise

of rights guaranteed in section 157 of this title[.]” National Labor

Relations Act of 1935 § 8(a)(1), 29 U.S.C. § 158(a).
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NLRB v. Babcock &Wilcox Co., 351 U.S. 105, 112 (1956),

held that the Act does not give non-employee union agents a

right to enter an employer’s property and distribute literature

unless the employer “discriminate[s] against the union by

allowing other distribution.” Cf. Waremart Foods v. NLRB, 354

F.3d 870 (D.C.Cir. 2004). The Supreme Court did not elaborate

on this “discrimination” exception. A Board decision

interpreting Babcock stated that if the employer allows

“substantial civic, charitable, and promotional activities,” then

it cannot “prohibit the dissemination of messages protected by

the Act on its private property[.]” Sandusky Mall Co., 329

N.L.R.B. 618, 622 (1999), enf’t denied, Sandusky Mall Co. v.

NLRB, 242 F.3d 682 (6th Cir. 2001).

The Board’s General Counsel argued that given Sandusky

Mall, Kroger had violated § 8(a)(1). Kroger committed this

unfair labor practice because it had not enforced the policy in

the lease and in the 2014 letter against — for example — the

Girl Scouts or the Salvation Army, but had invoked it when

union members sought to convince customers to boycott Kroger

stores. The General Counsel presented no other basis, no other

argument, no other reason for finding a violation.

The administrative law judge, relying entirely on the

Sandusky Mall rationale, agreed with the General Counsel and

found that Kroger had violated § 8(a)(1). 

On Kroger’s administrative appeal, the Board set aside

Sandusky Mall and similar cases and adopted a rule from

another of its post-Babcock decisions : “an employer 3

discriminates within the meaning of the Babcock discrimination

exception when it treats non[-]employee activities that are

Jean Country, 291 N.L.R.B. 11, 12 n.3 (1988). 3
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similar in nature disparately[.]” 368 N.L.R.B. No. 64 at *15.

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The Board then dismissed the complaint because the activities

Kroger had allowed were not comparable to Local 400’s efforts

to dissuade customers from patronizing Kroger stores.

Member McFerran dissented. She argued, among other

things, that the Board could find a violation because the

landlord’s 2014 letter established that Kroger acted with union

“animus.” Id. at *22. The Board majority held that the

argument was not properly before it. The General Counsel had

not presented the argument and the evidence supporting it was

“slim at best.” Id. at *17 n.23. Local 400 did not seek

reconsideration and, instead, filed this petition for judicial

review.

Our jurisdiction is limited in the following respect: “No

objection that has not been urged before the Board, its member,

agent, or agency, shall be considered by the court, unless the

failure or neglect to urge such objection shall be excused

because of extraordinary circumstances.” 29 U.S.C. § 160(e);

see Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645,

665–66 (1982). “In each case, the critical inquiry is whether the

objections made before the Board were adequate to put the

Board on notice that the issue might be pursued on appeal.” 

Consol. Freightways v. NLRB, 669 F.2d 790, 794 (D.C. Cir.

1981). A dissenting member’s discussion of an issue is not

The Board noted that not only the Sixth Circuit but also other

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circuits disagreed with Sandusky Mall. 368 N.L.R.B. No. 64 at *8–9;

see, e.g., Salmon Run Shopping Ctr. LLC v. NLRB, 534 F.3d 108,

116–17 (2d Cir. 2008); Be-Lo Stores v. NLRB,126 F.3d 268, 284–85

(4th Cir. 1997).

Local 400 has not challenged the Board’s decision to set aside

Sandusky Mall’s interpretation of Babcock.
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enough. HTH Corp. v. NLRB, 823 F.3d 668, 673 (D.C. Cir.

2016); Enter. Leasing Co. of Fla. v. NLRB, 831 F.3d 534, 551

(D.C. Cir. 2016); Contractors’ Lab. Pool, Inc. v. NLRB, 323

F.3d 1051, 1061–62 (D.C. Cir. 2003).

The jurisdictional bar serves “[t]he dual themes of notice

and adjudicatory efficiency[.]” Local 900, Int’l Union of Elec.,

Radio & Mach. Workers v. NLRB, 727 F.2d 1184, 1191 (D.C.

Cir. 1984). “[W]e are bound by it.” HealthBridge Mgmt., LLC

v. NLRB, 798 F.3d 1059, 1069 (D.C. Cir. 2015).

As the Board pointed out, the complaint and the General

Counsel alleged only “discriminatory enforcement.” 368

N.L.R.B. No. 64 at *17. Thus, the complaint charged Kroger

with “selectively and disparately” enforcing the no-solicitation

policy. J.A. 124. The General Counsel’s opening statement at

the hearing reaffirmed that the case presented this “single issue.” 

J.A. 40. The General Counsel’s briefs also stated that “[t]his

case presents a singular issue: whether [Kroger] . . . disparately

and discriminatorily enforced a no[-]solicitation/no[-]loitering

rule against the Union[.]” J.A. 177, 148. The same is true of

Local 400. See J.A. 202–11. Even after the Board’s decision

and Member McFerran’s discussion of a different theory, Local

400 did not seek reconsideration. It raised the Board dissenter’s

theory for the first time in this court. That was not enough.

Local 400 presents two reasons for avoiding the bar in 29

U.S.C. § 160(e).

First, Local 400 alleges that its argument is consistent with

the General Counsel’s disparate enforcement argument. It

contends that the Board “rests on a faulty effort to draw

distinctions between categories of discrimination cases.” Pet’r’s

Reply Br. 7. It is true that the ultimate issue was discrimination.

But there were different paths to get there. Compare Four B
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Corp. v. NLRB, 163 F.3d 1177, 1184 (10th Cir. 1998) (antiunion animus), and Cannondale Corp., 310 N.L.R.B. 845, 849

(1993) (discriminatory promulgation) , with Sandusky Mall Co.,

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329 N.L.R.B. at 627–28 (disparate enforcement). The

proceedings below focused solely on disparate enforcement of

the policy, not on whether Kroger otherwise harbored animosity

toward the union. Moreover, the Board majority treated

Member McFerran’s argument as a separate theory intended to

“independently establish[] a violation of Section 8(a)(1).” 368

N.L.R.B. No. 64 at *22; see id. at *17 n.22. And the majority

viewed it as addressing a separate question: whether “[Kroger]

promulgated access restrictions in response to union activity[.]” 

Id. at *17.

Second, Local 400 argues that it raised its theory in the

administrative proceedings by referring to the landlord’s 2014

letter. It points to the administrative law judge’s statement that

the letter “clearly targeted unions and other groups[.]” J.A. 36.

No one disputes that Local 400 mentioned the letter. But merely

including evidence that could support an objection is not the

same as urging the objection itself. Oral Arg. 5:51–6:51.

Despite this failure, we could consider the objection under

extraordinary circumstances. 29 U.S.C. § 160(e). Yet Local

400 has forfeited that too. It never even alleged extraordinary

circumstances in its opening brief (or in its reply brief). See AlTamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019).

Cannondale points out that it “is settled law that an otherwise

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valid no-solicitation no-distribution rule violates the Act ‘when it is

promulgated to interfere with the employee right to self-organization

rather than to maintain production and discipline.’ Harry M. Stevens

Services, 277 NLRB 276 (1985), citing cases. See also Mack’s

Supermarkets, 288 NLRB 1082, 1096-1097 (1988).” 310 N.L.R.B. at

849.
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In sum, § 160(e) bars us from reviewing Local 400’s

objection. Accordingly, we dismiss the petition for judicial

review.

So ordered.