UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RIESBECK FOOD MARKETS, INCORPORATED, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,
No. 95-1766 Respondent,

LOCAL UNION 23, AFL-CIO, CLC,
United Food and Commercial Workers International Union,
Intervenor.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

LOCAL UNION 23, AFL-CIO, CLC,
United Food and Commercial Workers International Union,
No. 95-1917 Intervenor,

v.

RIESBECK FOOD MARKETS, INCORPORATED, Respondent.

On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board. (8-CA-21274, 8-CA-22322)

Argued: April 1, 1996

Decided: July 19, 1996Before MURNAGHAN and HAMILTON, Circuit Judges, and LAY, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

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Petition for review granted and enforcement denied by unpublishedper curiam opinion. Judge Hamilton wrote a separate opinion concurring in the judgment.

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COUNSEL

ARGUED: Don Alan Zimmerman, SCHMELTZER, APTAKER & SHEPARD, P.C., Washington, D.C., for Riesbeck. Richard A. Cohen, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for NLRB. James R. Reehl, UNITED FOOD AND COMMERCIALWORKERS INTERNATIONAL UNION, LOCAL UNION 23, AFLCIO, CLC, Pittsburgh, Pennsylvania, for Intervenor. ON BRIEF: Henry A. Platt, Daniel P. Greenbaum, SCHMELTZER, APTAKER & SHEPARD, P.C., Washington, D.C., for Riesbeck. Frederick L. Feinstein, General Counsel, Linda Sher, Acting Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for NLRB. Peter J. Ford, Assistant General Counsel, UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC, Washington, D.C., for Intervenor.

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Unpublished opinions are not binding pr ecedent in this circuit. See Local Rule 36(c).

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2OPINION

PER CURIAM:

Riesbeck Food Markets, Inc. ("Riesbeck") petitions to set aside the order of the National Labor Relations Board ("NLRB"). The NLRB found that Riesbeck, a non-union employer, committed an unfair labor practice in violation of § 8(a)(1) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a)(1), by prohibiting union pickets and handbillers who were not Riesbeck's employees from distributing do-not-patronize literature to Riesbeck's customers on Riesbeck's property. See Riesbeck Food Markets, Inc. , 315 N.L.R.B. 940 (No. 134) (Dec. 16, 1994). 1 The NLRB and the union, as intervenor, crosspetition for enforcement of the NLRB's order. We grant Riesbeck's petition and deny the cross-petitions.

Background

On September 7, 1988, Local 23 of the United Food and Commercial Workers International Union ("the union") commenced informational picketing and handbilling on Riesbeck's premises near thecustomer entrances of Riesbeck's food stores in Wheeling, West Virginia, and St. Clairsville, Ohio. The union, which represented employees at a number of Riesbeck's competitors, had previously disclaimed any interest in representing Riesbeck's employees. 2 The handbills and picket signs truthfully said Riesbeck did not employ union labor andasked customers to not patronize Riesbeck. The pickets and handbillers did not interfere with the flow of customers or goods. None ofthe union pickets or handbillers were employed by Riesbeck. Riesbeck asked the pickets and handbillers to leave its premises, but they refused. Riesbeck commenced trespass lawsuits in both West Virginiaand Ohio state courts against the union. The state courts issued preliminary injunctions prohibiting the union's activities on Riesbeck's premises. The union pickets and handbillers thereafter conducted their

_________________________________________________________________ 1 The NLRB also found Riesbeck violated § 8(a)(1) b ecause it failed todissolve state court injunctions against the union after the NLRB's General Counsel issued a complaint against Riesbeck.
2 In February 1988, Riesbeck gave the union access to its employees as part of an apparent union organizational effort.

3activities on public property outside the driveway entrances to Riesbeck's stores in accordance with the injunctions.

The union filed unfair labor practice charges and the NLRB's General Counsel issued a complaint against Riesbeck alleging unfair labor practices. The case was tried before an administrative law judge ("ALJ"), who found Riesbeck had committed an unfair labor practice and entered a cease and desist order. After the ALJ's decision, thestate courts ultimately vacated their injunctions and dismissed Riesbeck's lawsuits as preempted by the NLRA.

The ALJ found Riesbeck impermissibly discriminated againstunion solicitation by discriminatorily preventing the union's informational picketing and handbilling. According to the ALJ, Riesbeck "permitted all kinds of civic and charitable solicitation for a total of almost 2 months a year" at its stores, J.A. 37, including candy sales by volunteer fire departments, poppy sales by the Veterans of Foreign Wars, bell ringing by the Salvation Army, and other solicitations byyouth sport groups, a school band, and the Easter Seals, but discriminated against the union by not allowing its solicitation. 3

In a three-to-two decision, the NLRB affirmed the ALJ's determination that Riesbeck had committed an unfair labor practice by discriminating against the union's solicitation. In addition to the fact that Riesbeck allowed significant amounts of charitable solicitations butnot the union's solicitation, the NLRB also found Riesbeck's solicitation policy--which provided for limited access to customers by charitable organizations whenever Riesbeck, in its discretion, thought such access would enhance its business--to be inherently discriminatory against protected union solicitation. 4

_________________________________________________________________ 3 The ALJ further found Riesbeck did not independently violate the Act by maintaining its state lawsuits against the union because, under Bill Johnson's Restaurants, Inc. v. NLRB , 461 U.S. 731 (1983), the lawsuits did not lack a reasonable basis and did not reflect a retaliatory motive.
4 The NLRB further found that maintaining the state court actions against the union was an independent unfair labor practice under Makro, Inc. (Loehmann's Plaza I) , 305 N.L.R.B. 663 (No. 81) (Nov. 21, 1991), rev'd on other grounds on rehearing , Makro, Inc. (Loehmann's Plaza II)

,

4Section 7 Rights

Riesbeck first argues the union's do-not-patronize solicitation is not protected activity within the meaning of § 7 of the NLRA, 29 U.S.C. § 157, 5 and thus prohibiting such solicitations is not a violation of § 8(a)(1). 6 Riesbeck contends the union pickets and handbillers, who were not employed by Riesbeck, had no § 7 right to engage inconsumer boycott activities against Riesbeck on the basis of Riesbeck's non-union status. Unlike organizational campaigns conducted by union organizers who are not employed by the targeted employer, in which the organizers have rights derivative of employees, e.g.

, Lechmere, Inc. v. NLRB , 502 U.S. 527, 532 (1992); NLRB v. Babcock
& Wilcox Co. , 351 U.S. 105, 113 (1956), Riesbeck argues that union pickets, who are not employed by Riesbeck, have no§ 7 right to inform Riesbeck's customers that Riesbeck does not employ union labor because such communication is not derivative of the rights of Riesbeck's employees. The NLRB contends, however, that the union representatives who engaged in the consumer boycott activities were not asserting rights derivative of Riesbeck's employees, but rather were asserting their own rights under the "mutual aid or protection" clause of § 7. See Eastex, Inc. v. NLRB , 457 U.S. 556, 564 (1978).

Riesbeck further argues that whether there is a§ 7 right to engage in consumer boycott activities against a non-union employer outside

_________________________________________________________________ 316 N.L.R.B. 109 (No. 24) (Jan. 25, 1995), rev. denied sub nom. United
Food & Commercial Workers v. NLRB , 74 F.3d 292 (D.C. Cir. 1996).
Loehmann's Plaza Iimposed on employers an affirmative duty to stay state court proceedings within seven days after the General C ounsel issues a complaint against them. 305 N.L.R.B. at 671.

5 Section 7 of the NLRA provides:"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]" 29 U.S.C.§ 157.
6 Section 8(a)(1) of the NLRA provides: "It shall be an unfair laborpractice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title[.]" 29 U.S.C. § 158(a)(1).

5of the employer's premises, does not resolve the issue of whether that right extends to such activities on the employer's property. The Supreme Court has held that union organizers may come onto an employer's property under two limited circumstances to communicatewith employees: first, if there are no other reasonably available channels of communication ("the inaccessibility exception"); and sec ond, "if the employer's notice or order . . . discriminate[s] against theunion by allowing other distribution" ("the discrimination exception"). NLRB v. Babcock & Wilcox , 351 U.S. 105, 112 (1956). Accord
Lechmere , 502 U.S. at 535; Sears, Roebuck & Co. v. Carpenters , 436 U.S. 180, 205 (1978). In Lechmere , the Court found that the in accessibility exception was "a narrow one," 502 U.S. at 539, applicable only when "`the location of a plant and the living quarters of the employees place the employees bey ond the r each of reasonable union efforts to communicate with them,'" id. (quoting Babcock & Wilcox

, 351 U.S. at 113) (emphasis omitted). Riesbeck argues that any § 7 right to engage in consumer boycott activities is a right of such lesser value than the organizational rights at issue in Lechmerethat it can never trump the employer's paramount right to control its privateproperty even if the employer discriminates against union solicitations. In a pre-Lechmeredecision, however, the NLRB found the discrimination exception of Babcock & Wilcoxapplies to the exercise of a § 7 right to engage in consumer boycott activities against non-union employers. See D'Alessandro's, Inc. , 292 N.L.R.B. 81, 83-84 (No. 27) (Dec. 29, 1988). The NLRB contends that the emphasis on the "narrow" inaccessibility exception in Lechmerehas no effect on discrimination cases. See Jean Country , 291 N.L.R.B. 11, 12 n.3 (No. 4) (Sept. 27, 1988) (multi-factor balancing test in in accessibility cases,
overruled in Lechmere , 502 U.S. at 535-38, involves "distinct analytical view" from discrimination cases).

In view of our holding that Riesbeck did not discriminate in barring the union from its premises, we need not decide whether § 7 rights are involved in the consumer boycott picketing or whether the Babcock
& Wilcoxdiscrimination exception to an employer's right to controlits property applies to such § 7 rights. Thus, for purposes of our decision, we assume without deciding that the boycott activities were protected by § 7 rights and that the discrimination exception applies. Onthe facts and circumstances of this case, however, we find no discrimination.

6Discrimination

Babcock & Wilcoxestablished that "an employer may validly post his property against nonemployee distribution of union literature . . . if the employer's notice or order does not discriminate against the union by allowing other distribution." 351 U.S. at 112. Discrimination claims "inherently require a finding that the employer treated similar conduct differently[.]" NLRB v. Southern Md. Hosp. Ctr. , 916 F.2d 932, 937 (4th Cir. 1990) (per curiam). 7 In Southern Maryland Hospital Center , this court recognized "a difference between admitting employee relatives for meals and permitting outside entities to seekmoney or memberships" which defeated the NLRB's finding of discrimination by the hospital. Id. at 937.

Like Southern Maryland Hospital Center , we find legally significant differences between the charitable solicitation which Riesbeckallowed and the union's "do not patronize" solicitation which Riesbeck prohibited. Riesbeck could reasonably be seen to have allowed the civic and charitable solicitation out of feelings of altruism or civicduty; such motivations, however, would not allow for the union's donot-patronize distributions. 8

_________________________________________________________________ 7 See, e.g. , NLRB v. Stowe Spinning , 336 U.S. 226, 228-30 & n.7 (1949) (employer's denial of union organizer's right to use the only meeting hall in a company town because of anti-union bias was properly found to be discrimination); Davis Supermarkets, Inc. v. NLRB , 2 F.3d 1162, 1178 (D.C. Cir. 1993) (allowing outside union members to enter building to communicate with employees but not allowing employees who were members of another union to picket outside building was "egregious" discrimination in violation of the NLRA), cert. denied , 114 S. Ct. 1368 (1994). 8 Cf. Perry Educ. Ass'n v. Perry Local Educators' Ass'n , 460 U.S. 37, 48 (1983) ("[E]ven if we assume that by granting access to the Cub Scouts, YMCA's, and parochial schools, the School District has created a `limited' public forum, the constitutional right of access would in any event extend only to other entities of similar character. While the school mail facilities thus might be a forum generally open for use by the GirlScouts, the local boys' club, and other organizations that engage in activities of interest and educational relevance to students, they would not asa consequence be open to an organization such as PLEA, which is concerned with the terms and conditions of teacher employment.").

7The NLRB argues, however, that Riesbeck, under its solicitation policy, allowed consumer-oriented appeals by civic and charitablegroups solely for the purpose of enhancing its business, and thus discriminated when the other side of the story--the union's messageagainst Riesbeck's business--was prohibited from being told on Riesbeck's premises. Even if the civic and charitable groups thus b ecame the tools of the employer, however, an employer must have some degree of control over the messages it conveys to its customers on its private property. Cf. Sparks Nugget, Inc. v. NLRB , 968 F.2d 991, 998 (9th Cir. 1992) (finding no discrimination when employer sponsored anti-union speech oriented to customers but forbid nonemployees to distribute pro-union literature). As the Supreme Court stated in the free speech context:

Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matterand speaker identity. These distinctions may be impermissible in a public forum but are inherent and inescapable in theprocess of limiting a nonpublic forum to activities compatible with the intended purpose of the property. The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue

serves.

Perry , 460 U.S. at 49. In this case, Riesbeck has a strong interest inpreventing the use of its property for conduct which directly undermines its purposes, i.e., the sale of goods and services to Riesbeck's customers, which was implicated by the union's solicitations but notby the charitable solicitations. Thus, we find Riesbeck reasonably distinguished between charitable solicitations which encouraged its business activity and the union's do-not-patronize message which was not "compatible with the intended purpose of the property." See id.

Furthermore, on the facts of this case, there is no evidence suggesting that Riesbeck was attempting to target union literature for special adverse treatment. First, Riesbeck allowed the union to disseminate information directly to the employees about membership in the union in February 1988. Second, Riesbeck had consistently prohibited other non-charitable solicitation of its customers on the premises, including, for example, prohibiting a political candidate from campaigning at the

8store. Cf. D'Alessandro's, Inc. , 292 N.L.R.B. at 84 (fact that employer allowed noncharitable vendors to sell on the premises as well as two political candidates to make press conferences on the premises, at which candidates criticized union pickets and advocated right to work laws, is evidence of disparate treatment against unionpickets). Third, Riesbeck's policy states, without exception, that donot-patronize messages are not allowed on its premises and Riesbeck has represented to us that it would enforce this policy against other consumer boycotts sponsored by environmental and other groups.There is no evidence of even a single isolated incident in which commercial, political, or other controversial groups were permitted to
solicit at Riesbeck's stores. Cf. Be-Lo Stores , 318 N.L.R.B. ____ (No. 1), 151 L.R.R.M. (BNA) 1310, 1320-21, 1995 WL 457281, at *13(July 31, 1995) (allowing distribution of religious and political literature, and the sales of incense by religious group, but prohibiting union distribution is discriminatory). In sum, we find that neither Riesbeck's policy nor its practices expressly discriminate against the union. 9 Under these circumstances, Riesbeck did not discriminate againstunion distributions by prohibiting the union's do-not-patronize solicitations while allowing various other civic and charitable groups to
solicit its customers. 10

_________________________________________________________________ 9 The union argues that Riesbeck's solicitation policy, by favoring charitable organizations, facially discriminates against union activities, citing NLRB v. Beverage-Air Co. , 402 F.2d 411, 418-19 (4th Cir. 1968). In Beverage-Air , this court invalidated an employer's broad nosolicitation rule which the court found chilled its employees' § 7 rights.
Id. at 419. That case, however, did not involve an anti-discrimination principle. Here, Riesbeck's policy does not single out union activity for adverse treatment. Thus, to the extent the policy chills trespassory unionactivity, it does not do so in a discriminatory manner, which is the relevant inquiry under the Babcock & Wilcoxdiscrimination exception.
10 The NLRB found that Riesbeck independently committed an unfair labor practice by failing to take affirmative actions to dissolve its statecourt injunctions against the union after the General Counsel filed a complaint in this action, thereby preempting the state actions. The NLRB
concedes that

if the Court declines to enforce the Board's threshold unfair labor practice finding, we agree that there would no longer be a predicate for the Board's findings that the Company's mainte-

9For the foregoing reasons, we grant Riesbeck's petition for review and deny the cross-petitions for enforcement.

PETITION GRANTED AND ENFORCEMENT DENIED

HAMILTON, Circuit Judge, concurring in the judgment:

While I do not take issue with the majority's analysis regarding the discrimination issue, I find it unnecessary to reach that issue because I believe that the "mutual aid or protection" clause of § 7 of the NLRA does not protect the union's picketing of Riesbeck and its handbilling of Riesbeck's customers.

Riesbeck is appealing the NLRB's findings that it committed unfair labor practices when Riesbeck (1) refused to allow the union access to its property and (2) instituted state trespass actions against the
union. Before the NLRB can find that Riesbeck committed unfair labor practices, the union's activity must be protected by § 7. See29 U.S.C. § 158(a)(1).* Section 7 of the NLRA states, "Employees shall have the rightto self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ." 29

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nance of the state court trespass actions constituted an unfair labor practice. . . . Accordingly, in that eventuality, the Court should deny enforcement of this second unfair labor practice as
well.

NLRB Br. at 18 n.6. See Loehmann's Plaza II , 316 N.L.R.B. at 114 ("Absent a finding that the picketing and handbilling on private property is protected, a lawsuit to enjoin that activity is not unlawful."). In light of the NLRB's concession, and given our finding that prohibiting theunion's consumer boycott activities on Riesbeck's premises did not constitute an unfair labor practice on Riesbeck's part, we also deny enforcement of the NLRB's order finding Riesbeck committed an unfair labor practice by failing to dissolve its state court injunctions against the union. *The pertinent part of this statute states, "It shall be an unfair laborpractice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title[.]"

10U.S.C. § 157 (emphasis added). In the instant case, the Board and the union, as intervenor, both contend that the union's activity falls under the "mutual aid or protection" clause of § 7, and accordingly, they conclude that the NLRB did not err in finding that the union's activity was protected by § 7.

"The `mutual aid or protection' clause of Section 7 protects employees who `seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship.'" New River Indus.,
Inc. v. NLRB , 945 F.2d 1290, 1294 (4th Cir. 1991) (quoting Eastex,
Inc. v. NLRB , 437 U.S. 556, 565 (1978)); see also Office & Professional Employees Int'l Union v. NLRB , 981 F.2d 76, 82 (2d Cir. 1992) (stating that the NLRA "revolves around the protection of workers' efforts to better their working conditions through collective action"). Terms and conditions of employment that employees may seek toimprove include "wages, benefits, working hours, the physical environment, dress codes, assignments, responsibilities, and the like."
New River Indus. , 945 F.2d at 1294. But the"mutual aid or protection" clause does not protect employees who engage in concerted activity for purposes that do not relate to the improvement of the terms and conditions of their employment. See NLRB v. Washington
Aluminum Co. , 370 U.S. 9, 17 (1962) ("It is of course true that § 7 does not protect all concerted activities."); Office & Professional Employees Int'l Union , 981 F.2d at 82 ("[T]he Act does not protect any `union activity' engaged in by an employee if it is unrelated to the terms and conditions of employment."); New River Indus. , 945 F.2d at 1294-95 (finding that "a mocking letter about free ice cream supplied in appreciation for a new contract with a supplier" which did not relate to the employees' working conditions was not protected by the "mutual aid or protection" clause).

The fundamental flaw in the NLRB's and the union's contentionthat the union's activity was protected by the "mutual aid and protection" clause is that neither party has demonstrated, nor even asserted, how the union's activity would improve the terms and conditions of employment for the union employees of the grocery stores competing with Riesbeck. Especially significant is the absence of any claim that Riesbeck's nonunion status damaged or would damage the terms and conditions of employment for the employees of the grocery stores

11competing with Riesbeck, e.g. , Riesbeck paying its employees less than the prevailing area standards. Although the NLRB has previouslyfound union activity similar to the union's activity here as being protected by the "mutual aid or protection" clause of § 7, see D'Alessandro's, Inc. , 292 N.L.R.B. 81, 83 (1988); Jean Country , 291 N.L.R.B. 11, 17 (1988), overruled in part on other grounds

, Lechmere, Inc. v. NLRB , 112 S. Ct. 841, 847-48 (1992), the NLRB's
decisions in those cases suffer from the identical flaw that theNLRB's decision here suffers from: the failure to explain how "donot-patronize" messages will improve the terms and conditions of the employees of union stores.

In NLRB v. Great Scot, Inc. , 39 F.3d 678 (6th Cir. 1994), the Sixth Circuit dealt with a somewhat similar issue. In that case, the union activity at issue was area standards picketing and handbilling, id. at 679, which the NLRB contends is analogous to the union's activity
here. Brief for NLRB at 14 n.4. In Great Scot , the union's agents carried picket signs that stated the following: "`Notice to the Public

-- Don't Shop [at Great Scot]. The store pays its employees wages and fringe benefits which are far below those paid to Unionized Grocery Store Employees in the area. This Company is attempting to destroy our higher Union Standards.'" Great Scot , 39 F.3d at 680 (alteration added by court). In response to the union's activity, Great Scotrequested that the union agents stop distributing handbills on its property, contacted the police to aid in their removal, and filed a trespass action in state court seeking injunctive relief against the union. Id. The NLRB found that Great Scot's responses constituted unfair labor practices. Id. at 682.

On appeal, Great Scot argued that the union's activity was not protected by § 7 because the union did not show that the wages and benefits Great Scot gave its employees were below the area standards. The Sixth Circuit agreed, and it denied enforcement of the NLRB's order. The court stated: "Because it is `the duty of a union that seeks to engage in lawful area standards picketing' to investigate wages and conditions alleged to be substandard, the union has the burden of `coming forward with credible evidence' that establishes both the area standards and the claimed disparity." Id. at 684 (citations omitted) (emphasis added by court). Because "the union wholly failed to offer proof sufficient to permit the administrative law judge to determine

12that Great Scot was properly subject to area-standards picketing," the court found that the union's activity was unprotected by § 7. Id.

Like the union in Great Scot , the union here"wholly failed" tooffer any evidence showing how the union's "do-not-patronize" message would improve the terms and conditions of employment for theemployees of the unionized grocery stores that competed with Riesbeck. Absent such evidence, the "mutual aid or protection" clause could not protect the union's activity here. Accordingly, I would grant Riesbeck's petition for review and deny enforcement of the NLRB's order on this sole ground.

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