Amer Pstl Wrkr Un v. NLRB

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 2004 Decided June 4, 2004

No. 03-1322

AMERICAN POSTAL WORKERS UNION, AFL–CIO,

ATLANTA METRO AREA LOCAL,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

On Petition for Review of an Order of the

National Labor Relations Board

James B. Coppess argued the cause for petitioner. With

him on the briefs were Anton G. Hajjar, Lynn K. Rhinehart,

and Laurence S. Gold.

Linda Dreeben, Assistant General Counsel, 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. Arm-

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

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strong, Deputy Associate General Counsel, and Julie F. Mar-

cus, Attorney.

Before: GINSBURG, Chief Judge, and SENTELLE and ROBERTS,

Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: The American Postal Workers

Union petitions for review of an order of the National Labor

Relations Board holding the United States Postal Service did

not violate § 8(a)(1) of the National Labor Relations Act, 29

U.S.C. § 158(a)(1), by ejecting two nonemployee union orga-

nizers from its Bulk Mail Center in Atlanta, Georgia. Be-

cause the Board had a rational basis for its decision, we deny

the petition for review.

I. Background

One evening in June 2000 three agents of the APWU

entered the Postal Service’s Bulk Mail Center to solicit

drivers employed by Mail Contractors of America (MCOA), a

company that hauls mail by truck for the USPS. They were:

Hardy, an MCOA driver; Brown, the president of APWU

Local 32; and Grimes, an APWU organizer. These three,

none of whom was employed by the Postal Service, went to

the lounge used by MCOA drivers waiting for Postal Service

employees to load mail into their trucks. Brown left the

lounge around 10p.m., and at approximately 10:30p.m. John-

son, a Postal Service employee, joined Hardy and Grimes

there. Upon discovering the three men attempting to orga-

nize MCOA drivers, a Postal Service supervisor, after con-

sulting with a manager, instructed them to leave the Bulk

Mail Center, which they did. The supervisor and the manag-

er acted pursuant to the Postal Service’s Southeast Area

Office Policy. Jack Mitchell, the author of the Policy, testi-

fied that it states the intention of the Postal Service ‘‘to

remain neutral, that this was an effort by the Union to

organize a private company that we had no say in, and we

were not to aid them nor to hinder them.’’ The Postal

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Service also had a general policy predating the Southeast

Area Office Policy which prohibited solicitation for commer-

cial or charitable purposes.

The Union filed an unfair labor practice charge, and the

General Counsel of the NLRB issued a complaint alleging the

Postal Service violated § 8(a)(1) of the NLRA, 8 U.S.C.

§ 158(a)(1), by ‘‘den[ying] its employee Joe Johnson, Mail

Contractors of America employee Will Hardy, and Union

Organizer Lyle Grimes access to a break room for the

purpose of organizing.’’ Section 8(a)(1) of the NLRA makes

it ‘‘an unfair labor practice for an employer to interfere with,

restrain, or coerce employees in the exercise of the rights

guaranteed in section 7.’’ 29 U.S.C. § 158(a)(1). Section 7 of

the NLRA provides that ‘‘Employees shall have the right to

self-organization, to form, join, or assist labor organizations.’’

29 U.S.C. § 157. After a hearing, an Administrative Law

Judge held the Postal Service had violated § 8(a)(1), as

alleged.

On review the Board affirmed the decision of the ALJ with

respect to the employee, but held excluding union president

Grimes and MCOA driver Hardy from the contract drivers’

lounge did not violate § 8(a)(1). In the Board’s view, the

General Counsel had failed to prove the Southeast Area

Office Policy

prohibited union solicitation while TTT permitt[ing] other

solicitationTTTT Without evidence that the [Postal Ser-

vice] permitted other solicitation by nonemployees, we

cannot conclude that the [Postal Service’s] Southeast

Area Office Policy, or its denial of access to the Union

pursuant to that policy, was discriminatorily confined to

Section 7 activity.

The Union appeals, arguing the Southeast Area Office Policy

on its face discriminates against union solicitation.

II. Analysis

The applicable standard of review in this case is highly

deferential. A Board determination that there has been no

violation of the NLRA must be upheld ‘‘unless it has no

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rational basis in the record.’’ Laborers’ Local Union No. 204

v. NLRB, 904 F.2d 715, 717 (D.C. Cir. 1990); see Gen. Elec.

Co. v. NLRB, 117 F.3d 627, 638 (D.C. Cir. 1997).

A. Jurisdiction

Preliminarily the Board argues the court lacks jurisdiction

to entertain the Union’s petition for two reasons, both linked

to § 10(e) of the Act: ‘‘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.’’ 29 U.S.C. § 160(e). First, the Board argues

the Union is barred from arguing the Southeast Area Office

Policy was facially discriminatory because ‘‘that theory was

not the theory underlying the General Counsel’s complaint.’’

The complaint did not specify whether the alleged violation of

§ 8(a)(1) was the enforcement of a facially discriminatory rule

or the disparate application of a facially neutral rule and,

according to the Board, the brief the General Counsel submit-

ted to the ALJ ‘‘contained no allegation that the USPS

Southeast area office policy was facially discriminatory.’’ The

Union, consulting the same brief, says that the General

Counsel did in fact ‘‘challenge[ ] the Postal Service’s South-

east Area Office Policy as facially discriminatory.’’ We agree.

Established Board policy forbids a litigant from ‘‘ex-

pand[ing] the scope of the complaint without the consent of

the General Counsel.’’ West Virginia Baking Co., 299 NLRB

306, 306 n.2 (1990); see § 3(d), 29 U.S.C. § 153(d) (General

Counsel has ‘‘final authority’’ over ‘‘issuance of complaints’’).

Here, however, the General Counsel herself, not the Union,

expanded the scope of the argument beyond what was in her

rather terse complaint. Before the ALJ the General Counsel

argued in her brief that the Postal Service ‘‘violated Section

8(a)(1) of the Act by a blanket prohibition of any Union

solicitation and distribution directed to the contract drivers.’’

Therefore, far from barring the Union’s argument, the Gener-

al Counsel’s theory of the complaint supports it.

Alternatively, the Board argues the Union ‘‘failed to make

the facial discrimination argument to the Board, either in

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cross-exceptions to the [ALJ’s] decision or in a motion for

reconsideration.’’ The Union contends it squarely presented

the argument to the Board.

Section 10(e) does not deprive the court of jurisdiction if

the Union gave the Board ‘‘adequate notice’’ of the argument

it seeks to advance on review. Alwin Mfg. Co., Inc. v.

NLRB, 192 F.3d 133, 143 (D.C. Cir. 1999). That is just what

happened in this case. The Postal Service excepted to the

ALJ’s ‘‘conclusion that the credited evidence shows that [the

Postal Service] evicted the organizers because [it] had a

policy against the Union engaging in organizing activities in

that area.’’ In response, the Union argued the Postal Service

had a ‘‘blanket policy forbidding union organizing,’’ which

‘‘policy addressing only union organizing and forbidding it by

anyone in any place on the Postal Service’s property’’ violated

§ 8(a)(1). Of course, the Union also could have sought recon-

sideration of the Board’s decision, but it is not out of court for

want of having done so, because the Board had before it the

precise issue the union raises in its petition for review, see

International Union of Electric, Radio, & Machine Workers

v. NLRB, 727 F.2d 1184, 1192 (D.C. Cir. 1984) (motion for

reconsideration not required where motion ‘‘clearly would

have been an empty formality, serving the purposes of nei-

ther notice nor efficiency’’), to which issue we now turn.

B. Discrimination

The Union argues the Board’s decision is inconsistent with

NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), and with

the Board’s own prior decisions, because a facially discrimina-

tory no-solicitation rule is facially invalid—that is, without

regard to whether other nonemployees were granted access

to the employer’s premises to solicit for other causes. Ac-

cording to the Union, the Southeast Area Office Policy is

facially discriminatory because it ‘‘singles out’’ union solicita-

tion, and was ‘‘intended to have precisely’’ the effect of

singling out union solicitation, for prohibition.

According to the Board, the Southeast Area Office Policy,

which as described by its author directed employees neither

to ‘‘aid TTT nor to hinder’’ union organizing, was not discrimi-

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natory because it was part of a more general policy prohibit-

ing solicitation for any purpose. The Board argues, there-

fore, the Postal Service could lawfully deny Grimes and

Hardy access to the Bulk Mail Center unless the General

Counsel showed the Postal Service ‘‘disparately denied non-

employee union organizers access to solicit in the contract

drivers’ lounge.’’ There was no evidence to that effect.

We think it clear the Postal Service did not single out union

solicitation for prohibition. The starting point in our analysis,

as is the Union’s, is Babcock & Wilcox, in which the Supreme

Court held ‘‘an employer may validly post his property

against nonemployee distribution of union literature’’ so long

as ‘‘the employer’s notice or order does not discriminate

against the union by allowing other distribution.’’ 351 U.S. at

112; see Lechmere, Inc. v. NLRB, 502 U.S. 527, 535 (1992)

(union has burden of showing ‘‘employer’s access rules dis-

criminate against union solicitation’’) (quoting Sears, Roebuck

& Co. v. Carpenters, 436 U.S. 180, 205 (1978)). The employ-

er’s policies in this case—the Southeast Area Office Policy,

providing that the Postal Service will ‘‘remain neutral’’ with

regard to the Union’s efforts to organize MCOA drivers,

together with the employer’s preexisting rule against com-

mercial or charitable solicitation—meet this requirement.

Regardless whether the Southeast Policy extended or merely

particularized the employer’s more general ‘‘no solicitation’’

rule, the overall effect was to prohibit all solicitation in the

contract drivers’ lounge. Therefore, ‘‘[a]bsent evidence of

differential treatment of union and nonunion solicitors’’ in

practice, that is, notwithstanding the policy prohibiting all

solicitation, ‘‘there can be no finding of discrimination.’’

Stanford Hosp. & Clinics v. NLRB, 325 F.3d 334, 346 (D.C.

Cir. 2003).

The Board correctly found no record evidence that ‘‘man-

agement had ever been aware of, or permitted, solicitation of

any kind in the contract drivers’ lounge.’’ Because there was

no evidence the Postal Service ‘‘allow[ed] similar distribution

or solicitation by nonemployee entities other than the union,’’

Lucile Salter Packard Children’s Hospital at Stanford v.

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NLRB, 97 F.3d 583, 587 (D.C. Cir. 1996), there was no

violation of § 8(a)(1).

III. Conclusion

The Board had a rational basis for holding the Postal

Service did not violate § 8(a)(1) of the Act. The Union’s

petition for review is therefore

Denied.