Wal-Mart v. NLRB , 136 F. App'x 752 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0233n.06
Filed: March 30, 2005
Nos. 03-2558/04-1099
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WAL-MART STORES, INC. )
)
Petitioner/Cross Respondent, ) ON PETITION FOR REVIEW
) AND CROSS-APPLICATION FOR
v. ) ENFORCEMENT OF A FINAL
) ORDER OF THE NATIONAL
NATIONAL LABOR RELATIONS BOARD, ) LABOR RELATIONS BOARD
)
Respondent/Cross Petitioner ) OPINION
)
UNITED FOOD AND COMMERCIAL )
WORKERS UNION, LOCAL 880, AFL-CIO, )
)
Intervenor. )
)
)
)
)
BEFORE: NORRIS AND GIBBONS, Circuit Judges, TODD, District Judge.*
TODD, District Judge. Petitioner-appellant Wal-Mart Stores, Inc. seeks review of a
Decision and Order of the National Labor Relations Board (“NLRB” or “Board”). The NLRB
cross-appeals for enforcement of the Order. The NLRB determined that Wal-Mart violated section
8(a)(1) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(1), at its Noblesville,
*
The Honorable James D. Todd, Chief District Judge for the Western District of Tennessee, sitting by
designation.
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Wal-Mart Stores, Inc. v. NLRB
Indiana store by discriminatorily prohibiting union organizers from handbilling on the premises and
causing the local police to threaten the union organizers with arrest if they did not leave the
premises. The sole argument raised by Wal-Mart in this appeal is that, based on Sixth Circuit
precedent, it did not act discriminatorily toward the handbillers. Because we conclude that Wal-
Mart is precluded from raising this argument on appeal by section 10(e) of the NLRA, 29 U.S.C.
§ 160(e), we DENY Wal-Mart’s petition for review and GRANT the NLRB’s cross-petition for
enforcement of its Order.
I. Procedural History
This case came before the NLRB on charges filed January 10, 2001, by the United Food and
Commercial Workers International Union, Local 880, AFL-CIO (“Union”). The Union alleged that
Wal-Mart discriminatorily prohibited union organizers from handbilling at its Noblesville, Indiana,
store even though they were in compliance with Wal-Mart’s written policy on solicitation and
distribution activity and discriminatorily caused the local police to instruct the handbillers to leave
the premises and to threaten them with arrest if they refused. The Union also alleged that Wal-Mart
violated the NLRA at its Muncie, Indiana, store by engaging in surveillance of union activity.
Following a hearing, an administrative law judge (“ALJ”) issued a decision and
recommended order on December 14, 2001, finding that Wal-Mart violated the NLRA at the
Noblesville store, but dismissing the allegation related to the Muncie store. The ALJ recommended
that Wal-Mart be ordered to cease and desist discriminating against union organizers in connection
with its solicitation policy or “[i]n any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.” (JA 20.)
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The ALJ also recommended that Wal-Mart be ordered to post a notice to employees at the
Noblesville store informing them of their rights under section 7 of the NLRA. Exceptions to the
decision were filed by Wal-Mart, the Union, and the NLRB’s General Counsel. The NLRB affirmed
the ALJ’s findings on November 28, 2003.
II. Facts
On August 4, 2000, Wal-Mart sent a memo to its store managers setting forth its policy on
solicitation and distribution of literature on store premises. The policy prohibited all solicitation and
distribution inside the store but allowed it outside the store as long as individuals did not block the
entrances and exits of the store and remained at least fifteen feet away.
On August 15, 2000, union organizers Alberta Jordan-Rigsby and Jeffrey Kimbrough began
distributing union literature to Wal-Mart employees outside the two main entrances of a Wal-Mart
Supercenter in Noblesville, Indiana. Jordan-Rigsby and Kimbrough were ten to fifteen feet away
from the entrances and were not blocking the entrances or exits. After approximately ten minutes,
assistant manager Jeff Staton came outside and asked the union organizers to leave. Jordan-Rigsby
told Staton that attorneys for the Union and Wal-Mart had agreed that the handbilling could take
place as long as they did not block the entrances or interfere with customers, and continued to
distribute the union literature. A second assistant manager, Patty Budds, came outside and also told
the organizers to leave, stating that Wal-Mart did not support unions.
When Jordan-Rigsby and Kimbrough did not leave the premises, Staton called the police.
Patrol Officer Timothy Hendricks arrived and Staton advised him that the union organizers did not
have permission to handbill and asked Hendricks to give them a warning for trespassing. Hendricks
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did so and asked them to leave. Jordan-Rigsby and Kimbrough complied with Hendricks’ request
and left. No Wal-Mart employee ever informed the organizers that Wal-Mart’s policy would allow
them to continue to distribute literature as long as they remained fifteen feet away from the
entrances.
III. Standard of Review
The Board’s findings of fact will not be disturbed as long as they are supported by substantial
evidence in the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-91 (1951).
Substantial evidence has been defined as “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Dupont Dow Elastomers, L.L.C. v. NLRB, 296 F.3d 495, 500
(6th Cir. 2002) (citation omitted). We also review the NLRB’s application of law to the particular
facts of the case under the substantial evidence standard. See NLRB v. Talsol Corp., 155 F.3d 785,
793 (6th Cir. 1998). The Board’s conclusions of law are subject to de novo review, and its
reasonable interpretations of the NLRA are to be afforded deference. Lee v. NLRB, 325 F.3d 749,
754 (6th Cir. 2003).
IV. Analysis
The courts have recognized that as a general rule, “an employer cannot be compelled to
allow distribution of union literature by nonemployee organizers on his property.” Lechmere, Inc.
v. NLRB, 502 U.S. 527, 533 (1992). However, there is a “discrimination exception” to the general
rule which states that an employer violates section 8(a)(1) of the NLRA if it denies a union access
to its premises “while allowing 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);
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see also NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956) (“[A]n 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.”); 6 West Ltd. Corp.
v. NLRB, 237 F.3d 767, 779 (7th Cir. 2001); Four B Corp. v. NLRB, 163 F.3d 1177, 1183 (10th Cir.
1998).
Wal-Mart argues, however, that under Albertson’s, Inc. v. NLRB, 301 F.3d 441 (6th Cir.
2002), Sandusky Mall Co. v. NLRB, 242 F.3d 682 (6th Cir. 2001), and Cleveland Real Estate
Partners v. NLRB, 95 F.3d 457 (6th Cir. 1996), overruled on other grounds by NLRB v. Webcor
Packaging, Inc., 118 F.3d 115 (6th Cir. 1997), an employer’s no solicitation policy is not
discriminatory unless it “favors one union over another, or allows employer related information
while barring similar union-related information.” Cleveland Real Estate Partners, 95 F.3d at 465.
In each of these cases, union handbilling was prohibited while charities and/or civic organizations
were allowed to solicit, and in each case, the court held that the prohibition was not discriminatory.
See Albertson’s, 301 F.3d at 451-52; Sandusky Mall, 242 F.3d at 692; Cleveland Real Estate
Partners, 95 F.3d at 461-65. Therefore, Wal-Mart contends that it may treat union solicitation and
distribution of literature differently than comparable nonunion activity. Wal-Mart also contends
that there is no evidence that it favored one union over another or distributed employer information
while prohibiting union information.
The NLRB and the Union rely upon section 10(e) of the NLRA, 29 U.S.C. § 160(e), and
Woelke & Romero Framing v. NLRB, 456 U.S. 645 (1982) to argue that this court cannot consider
the argument made by Wal-Mart on appeal because it was never raised in the proceedings before
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the NLRB. Section 10(e) provides, in pertinent part: “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.” In Woelke,
the Supreme Court held that section 10(e) barred judicial review of an issue when it was raised by
neither the NLRB nor the employer during the proceedings before the Board. 456 U.S. at 665-66.
During the NLRB proceedings, it was Wal-Mart’s position that Jordan-Rigsby and
Kimbrough were handbilling inside the Noblesville store when they were asked to leave. Therefore,
Wal-Mart’s argument that it did not discriminate against the union organizers was based entirely on
the assertion that it treated the union organizers the same as nonunion individuals seeking to solicit
or distribute literature inside the store. The ALJ, however, credited the testimony of those witnesses
who testified that Jordan-Rigsby and Kimbrough were handbilling outside the store, rather than
inside. Thus, the ALJ found that Wal-Mart violated section 8(a)(1) of the NLRA when it asked the
handbillers to leave and called the police to threaten them with arrest for trespassing, rather than
following the policy that allowed their activity as long as it occurred at least fifteen feet from the
store entrances. Although Wal-Mart filed numerous exceptions to the ALJ’s decision, at no time
did it contend that it could legitimately treat union handbilling and nonunion handbilling differently.
The theory that Wal-Mart raises for the first time in this appeal was not raised at any time
during the NLRB proceedings. Furthermore, Wal-Mart does not claim that there are extraordinary
circumstances that would excuse its failure to do so. Therefore, judicial review of Wal-Mart’s
argument is barred pursuant to section 10(e) of the NLRA and Woelke.
V. Conclusion
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For the foregoing reasons, we DENY Wal-Mart’s petition for review of the NLRB’s
Decision and Order and we GRANT the NLRB’s cross-petition and enforce the Board’s Order in
full.
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