Albertson's Inc. v. N.L.R.B.
| Decision Date | 20 August 2002 |
| Docket Number | No. 01-1002.,No. 00-2359.,00-2359.,01-1002. |
| Citation | 301 F.3d 441 |
| Parties | ALBERTSON'S INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, United Food and Commercial Workers Union Local 555, Intervenor. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James E. Burke III (briefed), Rachael A. Rowe (briefed), Keating, Muething & Klekamp, Cincinnati, OH, Peter M. Anderson (argued and briefed), Patrick Michael Madden (briefed), Preston, Gates & Ellis, Seattle, WA, for Petitioner.
Aileen A. Armstrong (briefed), Charles P. Donnelly, Jr. (briefed), John Arbab (argued), NLRB, Appellate Court Branch, Meredith L. Jason, Julie Marcus (briefed), NLRB, Washington, DC, for Respondent.
Gene B. Mechanic (briefed), Giles H. Gibson (argued and briefed), Goldberg, Mechanic, Stuart & Gibson, Portland, OR, for Intervenor.
Wayne H. Hoecker (briefed), Lathrop & Gage L.C., Kansas City, MO, Michael G. Dolan (briefed), Cadwalader, Wickersham & Taft, New York, NY, Nelson D. Atkin, II (briefed), Barran Liebman LLP, Portland, OR, for Amici Curiae.
Before: CLAY and GILMAN, Circuit Judges; HAYNES, District Judge.*
Albertson's Inc. ("Albertson's"), a retail grocer, seeks review of a decision by the National Labor Relations Board ("Board"), in which the Board held that Albertson's committed an unfair labor practice against two unions when Albertson's allowed charitable groups to solicit on, in and around its property on various occasions, but denied non-employee union representatives the same right. The Board held that this practice violated Section 8(a)(1) of the National Labor Relations Act ("NLRA") in that Albertson's discriminated against the union solicitation. Albertson's contends that employers do not violate the NLRA by allowing charities to solicit on their property while denying the same right to unions under the circumstances present here. The Board, which cross petitions for enforcement of its order, contends on appeal that the authority relied on by Albertson's only applies in situations where the union is engaged in activity that would harm the employer, such as boycotting activity, and that one of the unions in the instant case was not engaged in such activity but rather in organizational activity. For the reasons that follow, we DENY enforcement of the Board's order and GRANT the petition for review by Albertson's.
On November 27, 1995, Driver Salesmen, Warehousemen, Food Handlers, Clerical and Industrial Production, Local 582, affiliated with International Brotherhood of Teamsters, AFL-CIO ("Local 582"), a union located in Spokane, Washington, filed an unfair labor practice charge against Albertson's in Case No. 19-CA-24232, alleging that Albertson's sought to remove representatives of the union from the front of its stores. Local 582 representatives had convened in front of Albertson's stores in order to distribute handbills asking customers not to purchase products of Broadview Dairy, a manufacturer with whom the union was on strike.
On December 4, 1995, a different union, United Food and Commercial Workers Union, Local 555, affiliated with United Food and Commercial Workers International Union, AFL-CIO ("Local 555") filed a charge against Albertson's in Case No. 36-CA-7702. The charge alleged that Albertson's had threatened Local 555 representatives with arrest and civil action for attempting to gain access to stores 580 and 581 in Clark County, Washington in order to obtain authorization cards from employees. The union alleged that access should have been allowed pursuant to a Collective Bargaining Agreement ("CBA") between Local 555 and Albertson's covering all present and future stores in Clark County, Washington. On April 22, 1994, the union amended the charge to allege that Local 555 had been treated differently than other organizations which were allowed access to Albertson's stores.
On March 7, 1996, Local 555 filed a second charge against Albertson's, (36-CA-7763), alleging that Albertson's had refused to allow union representatives access to Albertson's stores in Oregon, also in order to obtain authorization cards from employees, which the union claimed was allowed under the CBA. Local 555 amended this charge on April 22, 1996, alleging that Albertson's had refused it access to its stores' premises while allowing such access to other organizations.
The Regional Director consolidated Case Nos. 36-CA-7702 and 36-CA-7763 on May 16, 1996. Subsequently, Case No. 19-CA-24232 was consolidated with the other two cases. The parties moved to transfer the matter to the Board, waive argument before an administrative law judge ("ALJ") and stipulate to the facts. The Board considered the matter for almost four years, and in a sharply divided decision, the Board majority found that Albertson's committed an unfair labor practice and violated the NLRA by excluding representatives of Local 582 and 555 from its stores.
Albertson's filed this timely notice of appeal on November 13, 2000. Although none of the actions complained of occurred in this circuit, jurisdiction is proper pursuant to 29 U.S.C. § 160(f), which provides that a party may seek review of a Board decision in the court of appeals in a judicial circuit where the party transacts business. Albertson's contends that it has well over 1,000 employees in Tennessee and Michigan and thus review by this Court is proper. The Board has cross-petitioned and seeks enforcement of its order.
The facts are essentially undisputed inasmuch as the parties stipulated to them below. Albertson's has a formal written policy on access and solicitations, which applies to all stores, and which bans any and all solicitations.
Between November 1, 1995 and January 26, 1996, Local 582 engaged in an economic strike against Broadview Dairy, located in Spokane, Washington. Local 582 attempted to distribute handbills at six of Albertson's retail and grocery stores in the Spokane area. The handbills urged customers to refrain from buying Broadview Dairy products, which Albertson's sold, inasmuch as Broadview offered "wages and benefits far below the industry standards." The handbills also made clear that the union's dispute was not with Albertson's, but only with Broadview. None of the individuals who sought to disseminate the handbills were employees of Albertson's. Albertson's requested police assistance in order to remove handbillers from its property at several of the stores.
On various occasions while the handbillers attempted to pass out their handbills, Albertson's allowed other groups on its property to solicit donations. These included the Camp Fire Girls and Boys, Boy Scouts, Girl Scouts, and area schools. Further, the Salvation Army was allowed to ring bells during Thanksgiving and Christmas at the stores each year.
During May 1995 to February 1996, Albertson's also denied non-employee business representatives of Local 555 access to the interior and immediate exterior of five of its stores located in Clark County, Washington (stores 580 and 581), Bend, Oregon (stores 587 and 588), and Redmond, Oregon (store 589). Local 555 representatives sought access to these stores in order to solicit the company's employees to become members of and/or to request representation by Local 555.
In early July 1995, and on October 25, 1995, supervisors at stores 580 and/or 581 denied access to Local 555 representatives and told them to leave the premises.
Local 555 began its organizing campaign in April 1995, and as part of that campaign, representatives entered into stores to talk to employees and distribute literature, and placed literature on car windshields in the parking lot. On May 1, 1995, Albertson's notified Local 555 by letter that its conduct violated the store's no-solicitation policy. Local 555 representatives again attempted to distribute materials in July 1995 and were told to leave. In a July 13, 1995 letter, Albertson's again advised the union that its conduct violated the store's no-solicitation policy. Similar letters were sent to the union in November 1995 and February 1996 after Local 555 representatives had again attempted to distribute its materials and solicit members at some of the company's stores.
Local 555 already has a CBA with approximately 47 of the company's stores in Oregon and in two stores in Washington. At various times in the past, Albertson's apparently allowed Local 555 representatives or representatives of predecessor unions access to the interior or exterior of its new stores in order to inform employees about the union. According to the CBA, covering stores 587, 588, and 589, Local 555 was allowed store access to investigate the union standing of represented meat department employees. According to Local 555, the clauses in the CBA also provided that Albertson's agreed to recognize Local 555 as the representative of its non-exempt grocery employees in stores 587, 588, and 589 based upon a majority of the employees authorizing such representation without having an NLRB election.1
The Board points out that Albertson's has allowed charitable and/or civic/educational groups to solicit its customers in the areas immediately surrounding the entrance to the stores. For instance, during the Christmas season, all five stores allow Salvation Army bellringers to solicit the company's customers. Stores 580 and 581 have allowed the Girl Scouts, Boy Scouts, Brownies and youth and school groups to solicit its customers. Stores 587, 588 and 589 also have allowed the Girl Scouts, Campfire Groups, the Veterans of Foreign Wars, Disabled Veterans of America and youth and school groups to solicit.
Generally, these groups are allowed to set up in the area adjacent to the store entrances and exits. However, Albertson's admits that during inclement weather, it has permitted the Girl Scouts and Salvation Army...
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...v. Apfel , 209 F.3d 448, 455 (5th Cir. 2000); Scott v. Shalala, 30 F.3d 33, 35 (5th Cir. 1994). Sixth Circuit: Albertson’s Inc. v. NLRB , 301 F.3d 441, 453 (6th Cir. 2002). Seventh Circuit: Golembiewski v. Barnhart , 322 F.3d 912, 916 (7th Cir. 2003); Steele v. Barnhart , 290 F.3d 936, 941 ......
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Federal court review
...v. Apfel , 209 F.3d 448, 455 (5th Cir. 2000); Scott v. Shalala, 30 F.3d 33, 35 (5th Cir. 1994). Sixth Circuit: Albertson’s Inc. v. NLRB , 301 F.3d 441, 453 (6th Cir. 2002). Seventh Circuit: Golembiewski v. Barnhart , 322 F.3d 912, 916 (7th Cir. 2003); Steele v. Barnhart , 290 F.3d 936, 941 ......
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Federal Court Review
...v. Apfel , 209 F.3d 448, 455 (5th Cir. 2000); Scott v. Shalala, 30 F.3d 33, 35 (5th Cir. 1994). Sixth Circuit: Albertson’s Inc. v. NLRB , 301 F.3d 441, 453 (6th Cir. 2002). Seventh Circuit: Golembiewski v. Barnhart , 322 F.3d 912, 916 (7th Cir. 2003); Steele v. Barnhart , 290 F.3d 936, 941 ......
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Federal Court Review
...v. Apfel , 209 F.3d 448, 455 (5th Cir. 2000); Scott v. Shalala, 30 F.3d 33, 35 (5th Cir. 1994). Sixth Circuit: Albertson’s Inc. v. NLRB , 301 F.3d 441, 453 (6th Cir. 2002). Seventh Circuit: Golembiewski v. Barnhart , 322 F.3d 912, 916 (7th Cir. 2003); Steele v. Barnhart , 290 F.3d 936, 941 ......