Four B Corp. v. N.L.R.B., AFL-CI
| Decision Date | 18 December 1998 |
| Docket Number | CLC,No. 97-9577,AFL-CI,97-9577 |
| Parties | 160 L.R.R.M. (BNA) 2015, 137 Lab.Cas. P 10,316, 1999 CJ C.A.R. 527 FOUR B CORP., doing business as Price Chopper, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, United Food and Commercial Workers Union, Local 576, affiliated with United Food and Commercial Workers International Union,"Local 576", Intervenor. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John D. Dunbar ( , Daniels & Kaplan, P.C., Kansas City, MO, for petitioner/cross-respondent.
Fred L. Cornnell (Frederick L. Feinstein, Acting General Counsel, Linda Sher, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, with him on the brief), National Labor Relations Board, Washington, DC, for respondent/cross-petitioner.
David M. Silberman, Bredhoff & Kaiser, Washington, DC (Laurence Gold, Bredhoff & Kaiser, Washington, DC; James Coppess, Lynn Rhinehart, Washington, DC; Peter J. Ford, Washington, DC; Robert J. Henry, Blake & Uhlig, Kansas City, KS, with him on the brief), for intervenor.
Before ANDERSON, HENRY, and MURPHY, Circuit Judges.
Four B Corp. d/b/a/ Price Chopper ("Price Chopper"), an operator of retail grocery stores, petitions to set aside the decision and order of the National Labor Relations Board, which reversed the decision of the administrative law judge ("ALJ") and found that Price Chopper violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1). The Board 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-duty employees at two of Price Chopper's stores while permitting non-union solicitations and distributions at those stores. The Board cross-petitions for enforcement of the order. Because we find that the Board's conclusions and factual findings are supported by substantial evidence, we deny Price Chopper's petition for review and grant the Board's cross-petition for enforcement of the order.
At the time relevant to this case, Price Chopper operated 21 retail grocery stores in the greater Kansas City area. This case involves the Price Chopper stores in Roeland Park, Kansas, and in Grandview, Missouri.
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 distribution of literature of any kind by any team member during the actual working time of the team member soliciting or the team member being solicited.
Persons who are not Company team members may not solicit or distribute literature for any purpose in any customer service area, working area or any area restricted to Company team members.
There must be no solicitation or distribution of literature of any kind by persons in customer service areas or shopping areas of the store during those hours when the store is open for 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 stores posted "No Solicitation" signs.
On February 18, 1994, both stores were the target of what Price Chopper describes as a "Union organizational blitz." The ALJ found as follows:
On February 18, 1994 Union agents entered Price Chopper's Roeland Park and Grandview stores and began soliciting employees and distributing union literature to employees while 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, 325 N.L.R.B. No. 20 (April 1, 1996). Ms. Staley informed Mr. Meszaros that he would have to distribute any Union literature off the store's property and outside the parking lot. Approximately six weeks later, Grandview store director 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 lot. 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 solicit 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 and rodeo at both stores during 1993; the organization's representatives appeared at the Roeland Park store three to four times a week for a period 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 occasion, 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 WL 733895, 1997 NLRB LEXIS 946 at * 12-13 (1997). Additionally, there was evidence that on two prior occasions, non-Union groups attempting to solicit Price Chopper employees at both stores were denied access. In late February or 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 time, no solicitation by anyone, including the Salvation Army and the Shriners, has been permitted.
The Board's General Counsel filed a complaint, alleging that Price Chopper selectively and disparately enforced its no-solicitation policy to prohibit Union solicitations while permitting non-Union solicitations, 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 section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1). Following a hearing, the ALJ dismissed the complaint, finding no violation of section 8(a)(1). He reasoned that the prior solicitations Price Chopper had permitted were of its customers. By contrast, the Union was attempting to solicit the stores' employees. He thus found no disparity between permitting non-Union solicitations of store customers and denying Union solicitation of employees.
The General Counsel and the Union filed exceptions to the ALJ's decision. The Board, with one member dissenting, disagreed with the ALJ and held that Price Chopper "violated Section 8(a)(1) by discriminatorily 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 WL 733895 at * 4, 1997 NLRB LEXIS 946 at * 15.
The Board began by rejecting the ALJ's factual finding that the non-Union solicitations permitted by Price Chopper were directed at customers only:
We note initially that the record does not support the judge's finding that the Id. 1997 WL 733895 at * 1, 1997 NLRB Lexis 946 at * 4 (footnote omitted).
nonunion solicitations [Price Chopper] had permitted on its premises were directed at its customers instead 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 that generally accept donations from anyone passing by. Moreover, much of this solicitation took place at or near store entrances, where employees would normally be expected to enter and leave the stores.
The Board then held that, even if the Union and non-Union solicitations were directed at different groups, it would still find discrimination against the Union in violation of section 8(a)(1), because permitting 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 even 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 materially different circumstances in which no other outside organization has been excluded, it is fair to infer, as we do here, that a discriminatory motive lies behind the exclusion." Id. 1997 WL 733895 at * 2, 1997 NLRB Lexis at * 11.
The Board rejected Price Chopper's argument that the non-Union solicitation it permitted was insignificant enough to qualify for the "beneficial acts" exception to the discrimination prohibition of section 8(a)(1). It also rejected Price Chopper's argument that it was justified in excluding Union representatives because of their disruptive behavior during the "organizational blitz" on February 18, 1994, finding that "[n]o witness indicated that the asserted misconduct played any part in the decision to exclude the union representatives from the sidewalks and parking lots." Id. 1997 WL 733895 at * 3, 1997 NLRB Lexis at * 14. Finally, it rejected Price Chopper's argument that it was justified in excluding the Union...
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