The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 2001 Decided November 6, 2001
No. 00-1422
Mid-Mountain Foods, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
On Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board
Ronald I. Tisch argued the cause for petitioner. With him
on the briefs were Peter A. Susser and Mark M. Lawson.
Anna L. Francis, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Fred L. Cornnell, Jr.,
Supervisory Attorney.
Before: Sentelle, Randolph, and Garland, Circuit Judges.
Opinion for the Court filed Per Curiam.
Per Curiam: Mid-Mountain Foods, Inc., a Virginia whole-
sale grocer, petitions for review of an order of the National
Labor Relations Board. The Board cross-petitions for en-
forcement.
On August 1, 1996, the Board supervised an election to
determine whether Mid-Mountain's warehouse employees de-
sired to be represented by the United Food and Commercial
Workers International Union, Local 400. The union lost.
After reviewing the actions and statements of Mid-
Mountain's management, the Board found that the company
had committed several unfair labor practices. The Board
therefore ordered another election and ordered the company
to cease and desist from the unfair labor practices.
Mid-Mountain asks us to set aside the portion of the
Board's order requiring a new election. We cannot consider
this issue now. We have repeatedly held that the Board's
decision to hold another election is not a "final order."
Therefore, judicial review is not yet available under the
National Labor Relations Act. See Adtranz ABB Daimler-
Benz Transp. v. NLRB, 253 F.3d 19, 24-25 (D.C. Cir. 2001);
Gold Coast Rest. v. NLRB, 995 F.2d 257, 267 (D.C. Cir. 1993)
(citing American Fed'n of Labor v. NLRB, 308 U.S. 401, 409
(1940)); see also Hartz Mountain Corp. v. Dotson, 727 F.2d
1308, 1310-12 (D.C. Cir. 1984); International Union of Elec.,
Radio & Mach. Workers, Local 806 v. NLRB, 434 F.2d 473,
482 (D.C. Cir. 1970).
Mid-Mountain also claims that the Board's findings of
unfair labor practices were unsupported. The company rais-
es numerous evidentiary objections. There is no need to go
into these in detail. Substantial evidence sustains the
Board's decision that Mid-Mountain Foods committed unfair
labor practices when its supervisors interrogated employees
about their views on unionization, when company representa-
tives threatened harsher enforcement of company work rules
(if the union won the election), when a supervisor suggested
the company would fire union supporters, when the company
sanctioned an employee for missing work to testify before the
Board's Administrative Law Judge, and when the employer
disseminated a pamphlet threatening to close the facility if
the union won. See, e.g., Purdue Farms v. NLRB, 144 F.3d
830, 834-35 (D.C. Cir. 1998).
We also sustain the Board's conclusion that Mid-Mountain
violated s 8(a)(1), 29 U.S.C. s 158(a)(1), when it removed pro-
union material from the company's outdoor break area, while
permitting anti-union literature to remain. Once an employer
allows employee speech in a specific area of company proper-
ty, the employer may not selectively censor the employees'
union-related speech. See Container Corp. of Am., 244
N.L.R.B. 318, 318 n.2 (1979) (holding that once an employer
permits use of its bulletin boards for employee postings, it
may not discriminate against pro-union messages). Cf. Hel-
ton v. NLRB, 656 F.2d 883 (D.C. Cir. 1981) (finding incum-
bent union committed an unfair labor practice when it re-
moved employee speech critical of union from bulletin boards
where other employee speech was permitted). When the
employee break area is filled with literature of all sorts, an
employer's selective removal of pro-union pamphlets conveys
the unmistakable message of hostility toward unionization.
In regard to another incident, the Administrative Law
Judge concluded that Mid-Mountain did not selectively re-
move union literature from tables in a break area in mid-July
1996. See Mid-Mountain Foods, 332 N.L.R.B. No. 19, 2000
WL 1390484, at *30 (Sept. 21, 2000). The Board overturned
this factual conclusion, crediting--so counsel for the Board
explained at oral argument--the testimony of a Mid-
Mountain employee that a supervisor had done just that.
The company did not contest this particular finding of the
Board, and we therefore will uphold it.
It is unnecessary for us to consider the Board's alternative
ground that the National Labor Relations Act required the
company to allow pro-union literature to remain in break
areas indefinitely unless the papers were "strewn about in an
unsightly or hazardous manner," even if the company was
throwing away all literature and trash in the area. Mid-
Mountain Foods, 2000 WL 1390484, at *2. The Board did
not explain why an employee's "right to distribute" literature,
see NLRB v. Magnavox Co., 415 U.S. 322, 325-26 (1974);
Republic Aviation v. NLRB, 324 U.S. 793, 803 n.10 (1945),
includes the right to use a company's break room as an
extended distribution center, or why a company's practice of
regularly cleaning out such areas, without discriminating
between the type of material employees leave behind, should
give rise to a violation of the Act. Compare Mid-Mountain
Foods, 2000 WL 1390484, at *2, with Container Corp. of Am.,
244 N.L.R.B. 318, 318 n.2 (1979); The Heath Co., 196
N.L.R.B. 134, 134-35 (1972); Union Carbide Corp., 259
N.L.R.B. 974, 980 (1981); Mid-Mountain Foods, 2000 WL
1390484, at *2 to *4. We leave to another day the issues the
Board's alternative holding presents.
The petition for judicial review is denied. The Board's
cross-petition for enforcement is granted.