## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 18 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FOUR B CORP., doing business as Price Chopper, Petitioner/Cross-Respondent,

v. No. 97-9577 NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner,

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 576, affiliated with United Food and Commercial Workers International Union, AFL-CIO, CLC “Local 576",

Intervenor.

ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD (NOS. 17-CA-17232 and 17-CA-17299)

John D. Dunbar (Kelly S. May Moothart with him on the briefs), Daniels & Kaplan, P.C., Kansas City, Missouri, for petitioner/cross-respondent.Fred L. Cornnell (Frederick L. Feinstein, Acting Ge neral Counsel, Linda Sher,

Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, with him on the brief), National Labor Rel ations Board, Washington, D.C., for respondent/cross-petitioner. David M. Silberman, Bredhoff & Kaiser, Washington, D.C. (Laurence Gold, Bredhoff & Kaiser, Washington, D.C.; James Coppess, Lynn Rhinehart, Washington, D.C.; Peter J. Ford, Washington, D.C.; Robert J. Henry, Blake & Uhlig, Kansas City, Kansas, with him on the brief), for intervenor.

Before ANDERSON, HENRY, and MURPHY, Circuit Judges.

ANDERSON , Circuit Judge.

Four B Corp. d/b/a/ Price Chopper (“Price Chopper”) , an operator of retail grocery stores, petitions to set aside the decisionand order of the National Labor Relations Board, which reversed the decision of the administrative law judge (“ALJ”) and found that Price Chopper violated secti on 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1). The Bo ard found that Price Chopper discriminated against the intervenor in this case, United Food and Commercial Workers Union, Local 576 (“Union”), by prohibiting representatives of the Union from soliciting and distributing materials to off-d uty employees at two of Price Chopper’s stores while permitting non-union solicit ations and distributions at those stores. The Board cross-petitions for enforc ement of the order. Because we find that the Board’s conclusions and factual findi ngs are supported by substantial- 3 -

evidence, we deny Price Chopper’s petition for revi ew and grant the Board’s cross-petition for enforcement of the order.

BACKGROUND At the time relevant to this case, Price Chopper op erated 21 retail grocery stores in the greater Kansas City area. This case involves the Price Chopper stores in Roeland Park, Kansas, and in Grandview, M issouri. Price Chopper had a written no-solicitation policy effective December 1, 1993, which provided as follows:

In the interest of efficiency, convenience and the continuing good will of our customers, and for the protection of our team members, there must be no solicitation or distribut ion of literature of any kind by any team member during the actual worki ng time of the team member soliciting or the team member being sol icited. Persons who are not Company team members may not so licit or distribute literature for any purpose in any cus tomer service area, working area or any area restricted to Company team members. There must be no solicitation or distribution of li terature of any kind by persons in customer service areas or sh opping areas of the store during those hours when the store is openfor business. Joint Ex. 1, R. Vol. II. A copy of this policy was available in the office of both the Roeland Park and Grandview stores, and both sto res posted “No Solicitation” signs.- 4 -

On February 18, 1994, both stores were the target o f what Price Chopper describes as a “Union organizational blitz.” The A LJ found as follows:

On February 18, 1994 Union agents entered Price Cho pper’s Roeland Park and Grandview stores and began solicit ing employees and distributing union literature to employees whil e they were working and assisting customers. Management told the agents to leave, and after the agents left, management found the stores littered with union literature. At the Roeland Park store, Store Director [Andy] Staley and a security guard escorted Gerald Meszaros (a lay minister and a volunteer agent for the Union) from the store. Four B Corp. d/b/a Price Chopper , 1996 NLRB LEXIS 190, at *8-9 (April 1, 1996). Ms. Staley informed Mr. Meszaros that he wo uld have to distribute any Union literature off the store’s property and outsi de the parking lot. Approximately six weeks later, Grandview store dire ctor Robert C. Scott told the same thing to union representatives who came to the store wishing to speak to employees in front of the store or in the parking l ot. Thus, Union representatives were prohibited from soliciting and distributing to off-duty Price Chopper employees on the sidewalks and parking lots outside the Roeland Park and Grandview stores. Both stores had, however, permitted other groups to solicit on site. The Board described the prior solicitations as follows: [Price Chopper] allowed the Salvation Army to solic it at both its Roeland Park and Grandview stores on a daily basis between Thanksgiving and Christmas 1993. The Shriners were permitted to solicit contributions in support of their circus an d rodeo at both stores during 1993; the organization’s representati ves appeared at the- 5 -

Roeland Park store three to four times a week for aperiod of 3 to 4 months, and at the Grandview store one weekend per month for an equivalent period. Also in 1993, a community group sold tickets for a pancake supper at the Roeland Park store on one o ccasion, and a Cub Scout pack sold mugs or cups to raise money at the Grandview store on one occasion. Four B Corp. d/b/a Price Chopper , 325 N.L.R.B. No. 20, 1997 NLRB LEXIS 946 at *12-13 (Nov. 8, 1997). Additionally, there was evidence that on two prior occasions, non-Union groups attempting to solicit P rice Chopper employees at both stores were denied access. In late February o r early March of 1994, Price Chopper’s management informed the store directors that the no-solicitation policy would have to be strictly enforced. Since that tim e, no solicitation by anyone, including the Salvation Army and the Shriners, has been permitted.

I. Proceedings Before the ALJ The Board’s General Counsel filed a complaint, alle ging that Price Chopper selectively and disparately enforced its no-solicit ation policy to prohibit Union solicitations while permitting non-Union solicitati ons, thereby interfering with, restraining and coercing employees in the exercise of their rights under section 7 of the NLRA, 29 U.S.C. § 157, in violation of secti on 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1). Following a hearing, the ALJ d ismissed the complaint, finding no violation of section 8(a)(1). He reason ed that the prior solicitations Price Chopper had permitted were of its customers . By contrast, the Union was- 6 -

attempting to solicit the stores’ employees . He thus found no disparity between permitting non-Union solicitations of store custome rs and denying Union solicitation of employees.

II. Proceedings Before the Board The General Counsel and the Union filed exceptions to the ALJ’s decision. The Board, with one member dissenting, disagreed wi th the ALJ and held that Price Chopper “violated Section 8(a)(1) by discrimi natorily excluding the union representatives from soliciting and distributing to off-duty employees on the sidewalks and parking lots of its Roeland Park and Grandview facilities.” Price Chopper , 325 N.L.R.B. at ___, 1997 NLRB LEXIS 946 at *15. The Board began by rejecting the ALJ’s factual find ing that the non-Union solicitations permitted by Price Chopper were direc ted at customers only:

We note initially that the record does not support the judge’s finding that the nonunion solicitations [Price Chop per] had permitted on its premises were directed at its customers inst ead of its employees. No witness testified that the nonunion organizations limited their solicitations to customers. Indeed, most of the solicitation activity was engaged in by groups thatgenerally accept donations from anyone passing by. Moreover, much o f this solicitation took place at or near store entrances, where employees would normally be expected to enter and leave the s tores. Id. at *4 (footnote omitted).1 As the Board correctly noted, the policy forbids so licitations and

distributions between employees during working time , by non-employees in customer service areas, working areas or areas restricted to employees, and by anyone in customer service areas or shopping areas during business hours. It says nothing about non-employees like the Union representatives soliciting and distributing to off-duty employees on the parking l ots and sidewalks outside the stores. - 7 - The Board then held that, even if the Union and non -Union solicitations were directed at different groups, it would still f ind discrimination against the Union in violation of section 8(a)(1), because perm itting non-Union solicitation on site while denying all Union access to off-duty employees amounts to discrimination against Union solicitation, regardless of audience. The Board inferred the existence of a “discriminatory motive” from the fact that Price Chopper’s written no-solicitation policy does not e ven address the Union’s solicitation efforts in this case. 1 “[W]e think that when an employer, like [Price Chopper], has a published rule prohibiting solicitation under stated circumstances, and excludes a union from its property under materi ally different circumstances in which no other outside organization has been exclud ed, it is fair to infer, as we do here, that a discriminatory motive lies behind the exclusion.” Id. at *11. The Board rejected Price Chopper’s argument that th e non-Union solicitation it permitted was insignificant enough to qualify for the “beneficial acts” exception to the discrimination prohibition o f section 8(a)(1). It also rejected Price Chopper’s argument that it was justi fied in excluding Union- 8 -

representatives because of their disruptive behavio r during the “organizational blitz” on February 18, 1994, finding that “[n]o wit ness indicated that the asserted misconduct played any part in the decision to exclu de the union representatives from the sidewalks and parking lots.” Id. at *14. Finally, it rejected Price Chopper’s argument that it was justified in excludi ng the Union representatives because they failed to first ask permission, findin g that “[n]o witness testified that the Union’s representatives were told that they wer e being denied access to [Price Chopper’s] outside nonwork areas because they had n ot first asked permission.” Id. at *15. The Board accordingly entered an order directing Pr ice Chopper to cease and desist from discriminatorily prohibiting Union representatives from communicating with Price Chopper’s off-duty employe es on the sidewalks and parking lots adjacent to the Roeland Park and Grand view stores, and, affirmatively, to post a remedial notice and to all ow Union representatives to communicate with off-duty employees during the 60-d ay notice posting period. One Board member dissented, arguing that Price Chop per did not discriminate against employees “based on Section 7 considerations. . . . Where, as here, [Price Chopper] differentiated between app eals to customers and appeals to employees, it cannot be said that [Price Chopper ] unlawfully discriminated where, as here, all employees were treated alike (on and off duty).” Id. at *19, 22- 9 -

(dissenting opinion). In response to the majority’ s view that the customer/employee distinction was irrelevant, or me aningless, because the nonUnion groups solicited anyone who passed by, the di ssent observed: [T]here is no evidence that the nonunion groups sol icited any employees. As the prosecutor of a “discrimination” allegation, the General Counsel had the burden of proof to show dis parate treatment, and he did not meet that burden here. Further, eve n assuming arguendo that the evidence established that nonunio n groups solicited off-duty employees, the result would be the same. The nonunion groups were not soliciting employees qua employees. They were soliciting anyone who passed by. By contrast, the union agents here were soliciting employees qua employees. Id. at *23 (footnote omitted). Because Price Chopper’ s policy would permit Union solicitation of customers , and because the Union and the General Counsel failed to show that such Union solicitation of customers had ever been denied, the dissent opined that no discrimination existed.

III. This Petition In this petition, Price Chopper argues the Board erred in finding, contrary to the ALJ, that it violated section 8(a)(1) becaus e: 1) prior to the Union’s attempts to solicit, few other groups had been perm itted to solicit and “then for a limited solicitation purpose upon asking permissionwhich would not void [Price Chopper’s] no-solicitation policy;” 2) no other gro ups had been permitted to solicit Price Chopper employees; 3) Price Chopper h ad previously denied other- 10 -

groups requests to solicit; 4) the conduct of Unionrepresentatives on February 18 justified the subsequent denial of their solicitati on request; and 5) no solicitations at all have been permitted since late February or e arly March 1994. Pet’r’s Br. at
4. We resolve this case on its facts, not on legal dis tinctions. We hold that substantial evidence supports the Board’s finding that Price Chopper discriminated against the Union when it prohibited Union representatives from soliciting off-duty employees in the parking lots and sidewalks outside the two Price Chopper stores.

DISCUSSION We have stated before our standard of review for th e Board’s orders: “while we review legal determinations de novo, our standard for reviewing factual determinations is governed by 29 U.S.C. § 160(e), w hich states that ‘findings of the Board with respect to questions of fact if supp orted by substantial evidence on the record considered as a whole shall be conclusive.’” Medite of New Mexico,
Inc. v. NLRB , 72 F.3d 780, 785 (10th Cir. 1995). Substantial e vidence is “such relevant evidence as a reasonable mind might acceptas adequate to support a conclusion.” Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229 (1938); see also Medite of New Mexico , 72 F.3d at 785. Accordingly, if supported by- 11 -

substantial evidence, we must affirm the Board’s co nclusions “even though we might reach a different result were we reviewing the record de novo.” Medite of New Mexico , 72 F.3d at 785. Our standard of review does not change because the ALJ and the Board have reached different conclusions. Id. ; see also Nephi Rubber Prods. Corp. v. NLRB , 976 F.2d 1361, 1364 (10th Cir. 1992). The record nonetheless includes the ALJ’s findings, “‘whether they contradict or support the Board’s determination.’” Medite of New Mexico , 72 F.3d at 785 (quoting Harberson v. NLRB , 810 F.2d 977, 983 (10th Cir. 1987)). We review the Board’s legal judgments “to determine whether the Board ‘correctly interpreted and applied the law.’” Nephi Rubber Prods. , 976 F.2d at 1363-64 (quoting Le’Mon v. NLRB , 952 F.2d 1203, 1206 (10th Cir. 1991)). However, to the extent the Board is interpreting an d applying the NLRA, we must accord its interpretation some deference: “[f ]or the Board to prevail, it need not show that its construction is the best way to read the statute; rather, courts must respect the Board’s judgment so long as its re ading is a reasonable one.” Holly Farms Corp. v. NLRB , 517 U.S. 392, 409 (1996). Section 7 of the NLRA guarantees employees “the rig ht to selforganization, to form, join, or assist labor organi zations, . . . and to engage in other concerted activities for the purpose of colle ctive bargaining or other mutual aid or protection . . . .” 29 U.S.C. § 157. Secti on 8 makes it an unfair labor2 All parties seem to agree that the inaccessibility exception is not relevant

to this case. - 12 - practice “to interfere with, restrain, or coerce employees in the exercise of” their section 7 rights. 29 U.S.C. § 158(a)(1); see Albertson’s, Inc. v. NLRB , No. 97-9509, slip op. at 8-9 (10th Cir. Nov. 10, 1998). “As a rule, . . . an employer cannot be compelled t o allow distribution of union literature by nonemployee organizers on his property.” Lechmere, Inc. v.
NLRB , 502 U.S. 527, 533 (1992). There are two exceptio ns to this general rule. First, an employer violates section 8(a)(1) if it p rohibits union access to the employer’s property if the employees are otherwise “inaccessible” because they are “‘beyond the reach of reasonable union efforts to communicate with them.’” Id. at 534 (quoting NLRB v. Babcock & Wilcox Co. , 351 U.S. 105, 112 (1956)). 2 Second, an employer may not discriminate in violati on of section 8(a)(1) by denying “union access to its premises while allowin g similar distribution or solicitation by nonemployee entities other than the union.” Lucile Salter Packard Children’s Hosp. v. NLRB , 97 F.3d 583, 587 (D.C. Cir. 1996); see also Babcock , 351 U.S. at 112; Albertson’s, Inc. , slip op. at 9. This case involves this second non-discrimination exception. Under the non-discrimination exception, “[a]n emplo yer may not exercise its usual right to preclude union solicitation and distribution on its property if the- 13 -

employer permits similar activity by other nonemplo yee entities ‘in similar, relevant circumstances.’” Lucile Salter Packard , 97 F.3d at 587 (quoting Jean Country , 291 N.L.R.B. 11, 12 n.3 (1988)). The Board thus applies a “disparate treatment” analysis to discrimination claims. See Food Lion, Inc. , 304 N.L.R.B. 602, 604 (1991); see also Albertson’s, Inc. , slip op. at 9. Accordingly, disparate treatment of similarly situated would-be solicitors , one union and one non-union, will result in a finding of a section 8(a)(1) violation, unless the non-union solicitation falls within one of two exceptions to the non-discrimination rule. Under the first exception, “the employer’s decisionto permit nonunion solicitation does not violate the provision if the solicitations at issue consist only of ‘a small number of isolated “beneficent acts”’ t hat constitute narrow exceptions to the employer’s otherwise absolute pol icy against outsider solicitation.” Lucile Salter Packard , 97 F.3d at 587. Under the second exception, allowing non-union solicitations relating “to the e mployer’s business functions and purposes” may avoid violating section 8(a)(1). Id. at 588. Price Chopper relies in part on the “beneficent acts” exception t o the non-discrimination rule. As indicated, the Board first found that the record supported the inference that Price Chopper had a discriminatory motive whenit excluded the Union organizers from the sidewalks and parking lots surr ounding its two stores. We conclude that substantial evidence in the record supports that finding.3 Ms. Staley, the Roeland Park store director, testif ied that some people from another retail store, Pace, “came in and actua lly approached some of our teammates on the checkstands. At the time I was ma de aware of it, I asked them to leave. Then I went to their office and explaine d to their human resources director that we did not allow people to approach o ur teammates on company time.” Tr. of Hr’g at 83, R. Vol. I.

4 The fact that Price Chopper was not following a wri tten policy when it excluded the Union representatives is not, of cours e, determinative of whether a section 8(a)(1) violation occurred. An employer ne ed not necessarily act in accordance with a written policy. - 14 - As the Board observed, Price Chopper’s written no-s olicitation policy does not address the type of solicitation the Union organizers attempted to conduct in this case. The written policy bans solicitations o f employees in the store (in customer service areas or working areas or areas re stricted to employees) and during business hours. Prior attempts to solicit employees inside the store and during working hours were prohibited pursuant to that written policy. 3 However, because the written policy does not address the sol icitation of off-duty employees on the sidewalks and parking lots surrounding the s tores, Price Chopper’s decision to exclude such solicitation by the Union was not in accordance with its written no-solicitation policy. 4 The Board found as follows with respect to Price Ch opper’s no-solicitation policy and the decision to exclude the Union repres entatives: [Price Chopper] . . . had, in effect, two policies concerning solicitation. One, the written policy . . . , proh ibited all outside entities from soliciting on-duty employees in certa in defined areas during specified times. The other, unwritten polic y, hastily5 Courts have recognized that employers may make neutral, non-section 7- (continued...) - 15 - implemented in the face of the Union’s organizing e ffort, precluded unions from soliciting its employees, whether on duty or off duty, anywhere on its property at any time. . . . [W]hen an employer, like [Price Chopper], has a published rule prohibiting solicitation under stated circumst ances, and excludes a union from its property under materially differen t circumstances in which no other outside organization has been exclud ed, it is fair to infer, as we do here, that a discriminatory motive lies behind the exclusion. Price Chopper , 325 N.L.R.B. at ___, 1997 NLRB LEXIS 946 at *9-11

. “An employer’s antiunion motivation often may be pr oven only by circumstantial evidence.” Ready Mixed Concrete Co. v. NLRB , 81 F.3d 1546, 1550 (10th Cir. 1996). Given that “[o]ur review of the Board’s factfinding is quite narrow,” id. at 1551, we find that substantial evidence in the record supports the Board’s finding, based on circumstantial eviden ce, that Price Chopper had a discriminatory motive when it refused to permit Uni on representatives to solicit off-duty employees on sidewalks and in the parking lots outside its stores. Price Chopper argues that it legitimately distingui shed between solicitations of employees and solicitations of customers and that, while it permitted the latter, it had never permitted the former, and its refusal to permit the Union representatives to solicit its off-duty employees w as merely an implementation of that policy. 5 However, the evidence does not support the existe nce of any5 (...continued)

based distinctions between different kinds of solic itations. Thus, the Seventh Circuit has held that an employer could permit the posting of swap-and-shop notices on its bulletin boards, but no notices of a ny meetings, including union meetings. Guardian Industries Corp. v. NLRB , 49 F.3d 317 (7th Cir. 1995). The Fourth Circuit held that an employer could distingu ish between “charitable solicitations which encouraged [the employer’s] bus iness activity and the union’s do-not-patronize message” which was harmful to the employer’s business. Riesbeck Food Mkts, Inc. , Nos. 95-1766, 95-1917, 1996 WL 405224 at *4 (4th Cir. July 19, 1996) (unpublished decision). - 16 - coherent or consistent distinction along those line s. Price Chopper’s written policy does not itself differentiate among the targ et audiences of proposed solicitations; rather, it prohibits all solicitatio ns in certain areas and during certain hours. Moreover, the two store managers wh o excluded the Union representatives did not testify that their decision s were based upon an employee/customer distinction. Additionally, Price Chopper presented no evidence that there was any other neutral, non-discriminatory reason for adopting thi s new unwritten policy prohibiting solicitations of off-duty employees on the sidewalks and in the parking lots outside its stores. It presented no e vidence that it did so because of concern about disruptive conduct stemming from the behavior of Union representatives on February 18. Nor did it presentany evidence that the Union’s failure to ask permission caused the activation of this new policy.6 Price Chopper argues that, in any event, the numberof other non-union

groups permitted to solicit in its stores was so sm all as to fall within the “beneficent acts” exception to the non-discriminati on rule. Thus, Price Chopper argues, by permitting a few isolated solicitations, it has not prevented itself from rightfully excluding the Union representatives. Th e Board found that “the exceptions [Price Chopper] made to its no-solicitat ion policy were too extensive to enable [Price Chopper] to deny access to the Union on similar terms.” Price Chopper , 325 N.L.R.B. at ___, 1997 NLRB LEXIS at *12. We agree with the Board. Given the frequency and duration of the sol icitations permitted, Price Chopper cannot claim that they fall within the narr ow “beneficent acts” exception. See Lucile Packard Salter , 97 F.3d at 587; Guardian Indus. Corp. , 49 F.3d at 321; Hammary Mfg. Corp. , 265 N.L.R.B. No. 57 at __ n.4, 1982 WL 23979 at *1. - 17 - Rather, the evidence in this case suggests that, af ter permitting various charitable groups to solicit customers periodicallybut regularly, Price Chopper banned any solicitation by Union organizers followi ng the Union’s organizational efforts. Substantial evidence supports the Board’s finding that this ban was motivated by an anti-union animus. We need go no f urther to find that Price Chopper violated section 8(a)(1) by discriminating in its application of its nosolicitation policy. 6

CONCLUSION For the foregoing reasons, we DENY Price Chopper’s petition to set aside the Board’s order and we GRANT the Board’s cross-pe tition and ENFORCE the Board’s order.97-9577, Four B v. NLRB

Murphy, J., concurring I concur in the judgment and, with the exception of footnote 5, the opinion. Footnote 5 discusses the legal issues raised by an employer’s attempt to distinguish between solicitations on facially “neutral, non-section 7-based” grounds, such as Price Chopper’s asserted distincti on between solicitations of employees and of customers. In text, however, the majority correctly observes that in this case “the evidence does not support th e existence of any coherent or consistent distinction” between solicitations of employees and of customers and that “Price Chopper presented no evidence that ther e was any other neutral, nondiscriminatory reason for adopting [its] new unwritten policy prohibiting solicitations of off-duty employees . . . outside i ts stores.” Majority Op. at 16. As a consequence, this panel need not address the hypothetical question of whether that or any other purportedly neutral disti nction would violate the NLRA. Complex legal and policy issues inhere in that hypo thetical question, the resolution of which Congress and the Supreme Court have entrusted in the first instance to the Board. See, e.g., Hudgens v. NLRB , 424 U.S. 507, 522 (1976). This court, then, should only address the question when it becomes real and has first been addressed by the Board. At that point, this court would be bound to defer to any permissible construction of the NLRA by the Board. See Holly Farms Corp. v. NLRB, 517 U.S. 392, 398–99, 409 (1996).7 In the other case cited in footnote 5, the Seventh Circuit simply rejected

the Board’s inference of union animus from the specific facts presented. See Guardian Indus. v. NLRB , 49 F.3d 317, 319–22 (7th Cir. 1995). - 2 - Footnote 5, moreover, does not even discuss the purportedly neutral distinction asserted by Price Chopper in this case, i.e., a distinction between target audiences. Rather, i t analogizes to cases distinguishing between types of solicitations. See Guardian Indus. Corp. v. NLRB, 49 F.3d 317, 321–22 (7th Cir. 1995); Riesbeck Food Mkts., Inc. v. NLRB, Nos. 95-1766, -1917, 1996 WL 405224, at *3–*4 (4th Cir. July 19, 1996) (unpublis hed disposition). In so doing, footnote 5 cannot even be treated as obiter reflect ing favorably upon those cases. Certainly footnote 5 should not be read as an endor sement, albeit in dicta, of the unpublished Riesbeck decision. 7This panel has not had the benefit of a Board ruling or advocacy on the charitable solicitation issues there presented. Furthermore, Riesbeck involved informational solicitation, while this ca se involves organizational solicitation. Caselaw esta blishes a hierarchy of activities under section 7, and nonorganizational activity by nonemployees, like that in Riesbeck , merits the least protection. See, e.g., United Food & Commercial Workers v. NLRB , 74 F.3d 292, 298 (D.C.Cir. 1996); NLRB v. Great Scot, Inc. , 39 F.3d 678, 682 (6th Cir. 1994). This distinction ha s been critical to other courts. In a 1996 case involving nonorganizational solicitation, the Sixth Circuit published an opinion similar to Riesbeck

. See Cleveland Real Estate Partners v.- 3 -

NLRB , 95 F.3d 457, 464–65 (6th Cir. 1996). Both the Si xth Circuit, in a later holding, and the Fourth Circuit, in dicta, have since indicated that Cleveland Real
Estate Partners is limited to nonemployee, nonorganizational cases. See Meijer, Inc. v. NLRB, 130 F.3d 1209, 1212–13 & n.4 (6th Cir. 1997); Be-Lo Stores v. NLRB, 126 F.3d 268, 284 (4th Cir. 1997).