UNPUBLISHED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, 1996
Before MURNAGHAN and HAMILTON, Circuit Judges, and

LAY, Senior Circuit Judge of the United States Court of Appeals

for the Eighth Circuit, sitting by designation.

_________________________________________________________________

Petition for review granted and enforcement denied by unpublished

per 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 COMMERCIAL

WORKERS 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.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

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 the

customer 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 and

asked customers to not patronize Riesbeck. The pickets and handbillers did not interfere with the flow of customers or goods. None of

the 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 Virginia

and 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

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1 The NLRB also found Riesbeck violated § 8(a)(1) because it failed to

dissolve 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.

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activities 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, the

state courts ultimately vacated their injunctions and dismissed Riesbeck's lawsuits as preempted by the NLRA.

The ALJ found Riesbeck impermissibly discriminated against

union 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 by

youth 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 but

not 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 

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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),

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Section 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 in

consumer 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 I imposed on employers an affirmative duty to stay

state court proceedings within seven days after the General Counsel

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 labor

practice 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).

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of 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 communicate

with employees: first, if there are no other reasonably available channels of communication ("the inaccessibility exception"); and second,

"if the employer's notice or order . . . discriminate[s] against the

union 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 inaccessibility 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 beyond the reach 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 Lechmere that it can

never trump the employer's paramount right to control its private

property even if the employer discriminates against union solicitations. In a pre-Lechmere decision, however, the NLRB found the discrimination exception of Babcock & Wilcox applies 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 Lechmere has 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 inaccessibility 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

& Wilcox discrimination exception to an employer's right to control

its 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. On

the facts and circumstances of this case, however, we find no discrimination.

 6
Discrimination

Babcock & Wilcox established 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 seek

money 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 Riesbeck

allowed 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 civic

duty; such motivations, however, would not allow for the union's donot-patronize distributions.8

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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 Girl

Scouts, the local boys' club, and other organizations that engage in activities of interest and educational relevance to students, they would not as

a consequence be open to an organization such as PLEA, which is concerned with the terms and conditions of teacher employment.").

 7
The NLRB argues, however, that Riesbeck, under its solicitation

policy, allowed consumer-oriented appeals by civic and charitable

groups solely for the purpose of enhancing its business, and thus discriminated when the other side of the story--the union's message

against Riesbeck's business--was prohibited from being told on Riesbeck's premises. Even if the civic and charitable groups thus became

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 matter

and speaker identity. These distinctions may be impermissible in a public forum but are inherent and inescapable in the

process 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 in

preventing 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 not

by 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

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store. 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 union

pickets). 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 against

union distributions by prohibiting the union's do-not-patronize solicitations while allowing various other civic and charitable groups to

solicit its customers.10

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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 union

activity, it does not do so in a discriminatory manner, which is the relevant inquiry under the Babcock & Wilcox discrimination exception.

10 The NLRB found that Riesbeck independently committed an unfair

labor practice by failing to take affirmative actions to dissolve its state

court 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-

 9
For 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. See 29

U.S.C. § 158(a)(1).* Section 7 of the NLRA states, "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

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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 the

union'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 labor

practice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title[.]"

 10
U.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 to

improve 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 contention

that 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

 11
competing with Riesbeck, e.g., Riesbeck paying its employees less

than the prevailing area standards. Although the NLRB has previously

found 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 the

NLRB'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 Scot

requested 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

 12
that 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" to

offer any evidence showing how the union's "do-not-patronize" message would improve the terms and conditions of employment for the

employees 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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