United Food and Commercial Workers Union, Local 400 v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2020 Decided March 5, 2021
No. 20-1027
UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL
400,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
KROGER LIMITED PARTNERSHIP I,
INTERVENOR
On Petition for Review of an Order
of the National Labor Relations Board
Amanda M. Jaret argued the cause for petitioner. With her
on the briefs were Carey R. Butsavage, Peter J. Ford, and James
B. Coppess.
Milakshmi V. Rajapakse, Attorney, National Labor
Relations Board, argued the cause for respondent. With her on
the brief were Peter B. Robb, General Counsel, Ruth E. Burdick,
Acting Deputy Associate General Counsel, David Habenstreit,
Assistant General Counsel, and Julie Brock Broido, Supervisory
Attorney.

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King F. Tower and Frank Friedman were on the brief for
intervenor Kroger Limited Partnership I in support of
respondent.
Before: SRINIVASAN, Chief Judge, HENDERSON, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: United Food and
Commercial Workers, Local 400 petitions for review of a
National Labor Relations Board decision dismissing an unfair
labor practice complaint against Kroger Limited Partnership I.
368 N.L.R.B. No. 64 (2019). The Board contends that we lack
jurisdiction to consider Local 400’s objection to its decision.
Kroger operated grocery stores throughout the Mid-Atlantic
region, including Store 538 in Portsmouth, Virginia. The
company leased space for Store 538 in a multi-tenant shopping
plaza until April 11, 2015, when Kroger permanently closed the
store. Under the lease agreement, Kroger could invoke its
landlord’s “no[-]solicitation/no[-]loitering rule” prohibiting “all
soliciting, loitering, handbilling and picketing for any cause or
purpose whatsoever . . . within the Parking Areas and Common
Facilities.” 368 N.L.R.B. No. 64 at *2. A March 2014 letter
from the landlord to Kroger stated that the proscription applied
to “any protesting, demonstrating, picketing, hand billing, or
related disruptive activities on the premises . . . (whether or not
involving a labor union)[.]” Id. at *3.1
As to the reason for the landlord’s 2014 letter, the only evidence1
was the surmise of a former Store 538 manager, in testimony at the
hearing on the complaint, that he “believe[d the letter] was due to the
fact that the Union had come and wanted to do some solicitation at the

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Over the years, Kroger did not object to charitable and civic
groups who sought to raise funds or promote their organization
in front of Store 538. These groups included the Girl Scouts, the
Lions Club, the Salvation Army (which the company’s policy
supported), a breast-cancer awareness group, the American Red
Cross, and local firefighters. On one occasion, a Kroger
manager did ask a church group to leave, but the group returned
several times without incident.
When Kroger decided to close Store 538, tensions mounted.
Local 400 represented a unit of employees at the store. Kroger
gave the employees the option of transferring to other Kroger
stores, but not to two newly-opened stores nearby. The union
opposed Kroger’s decision. In the shopping center parking lot,
two union agents — who were not Kroger employees — began
soliciting Kroger customers to sign a boycott petition. The store
manager presented the landlord’s 2014 letter to the union agents
and asked them to leave. They refused and stated that “they
would only listen to the blue[.]” J.A. 42. A Kroger manager
called the police. After the police arrived, the union members
departed.
Local 400 charged Kroger with violating § 8(a)(1) of the
National Labor Relations Act. The Acting Regional Director2
issued a complaint, alleging that Kroger violated the Act by
“selectively and disparately” enforcing the policy set forth in the
lease and in the landlord’s letter. J.A. 124–25.
store.” J.A. 66.
“It shall be an unfair labor practice for an employer —2
(1) to interfere with, restrain, or coerce employees in the exercise
of rights guaranteed in section 157 of this title[.]” National Labor
Relations Act of 1935 § 8(a)(1), 29 U.S.C. § 158(a).

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NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956),
held that the Act does not give non-employee union agents a
right to enter an employer’s property and distribute literature
unless the employer “discriminate[s] against the union by
allowing other distribution.” Cf. Waremart Foods v. NLRB, 354
F.3d 870 (D.C. Cir. 2004). The Supreme Court did not elaborate
on this “discrimination” exception. A Board decision
interpreting Babcock stated that if the employer allows
“substantial civic, charitable, and promotional activities,” then
it cannot “prohibit the dissemination of messages protected by
the Act on its private property[.]” Sandusky Mall Co., 329
N.L.R.B. 618, 622 (1999), enf’t denied, Sandusky Mall Co. v.
NLRB, 242 F.3d 682 (6th Cir. 2001).
The Board’s General Counsel argued that given Sandusky
Mall, Kroger had violated § 8(a)(1). Kroger committed this
unfair labor practice because it had not enforced the policy in
the lease and in the 2014 letter against — for example — the
Girl Scouts or the Salvation Army, but had invoked it when
union members sought to convince customers to boycott Kroger
stores. The General Counsel presented no other basis, no other
argument, no other reason for finding a violation.
The administrative law judge, relying entirely on the
Sandusky Mall rationale, agreed with the General Counsel and
found that Kroger had violated § 8(a)(1).
On Kroger’s administrative appeal, the Board set aside
Sandusky Mall and similar cases and adopted a rule from
another of its post-Babcock decisions : “an employer3
discriminates within the meaning of the Babcock discrimination
exception when it treats non[-]employee activities that are
Jean Country, 291 N.L.R.B. 11, 12 n.3 (1988).3

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similar in nature disparately[.]” 368 N.L.R.B. No. 64 at *15.4
The Board then dismissed the complaint because the activities
Kroger had allowed were not comparable to Local 400’s efforts
to dissuade customers from patronizing Kroger stores.
Member McFerran dissented. She argued, among other
things, that the Board could find a violation because the
landlord’s 2014 letter established that Kroger acted with union
“animus.” Id. at *22. The Board majority held that the
argument was not properly before it. The General Counsel had
not presented the argument and the evidence supporting it was
“slim at best.” Id. at *17 n.23. Local 400 did not seek
reconsideration and, instead, filed this petition for judicial
review.
Our jurisdiction is limited in the following respect: “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);
see Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645,
665–66 (1982). “In each case, the critical inquiry is whether the
objections made before the Board were adequate to put the
Board on notice that the issue might be pursued on appeal.”
Consol. Freightways v. NLRB, 669 F.2d 790, 794 (D.C. Cir.
1981). A dissenting member’s discussion of an issue is not
The Board noted that not only the Sixth Circuit but also other4
circuits disagreed with Sandusky Mall. 368 N.L.R.B. No. 64 at *8–9;
see, e.g., Salmon Run Shopping Ctr. LLC v. NLRB, 534 F.3d 108,
116–17 (2d Cir. 2008); Be-Lo Stores v. NLRB,126 F.3d 268, 284–85
(4th Cir. 1997).
Local 400 has not challenged the Board’s decision to set aside
Sandusky Mall’s interpretation of Babcock.

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enough. HTH Corp. v. NLRB, 823 F.3d 668, 673 (D.C. Cir.
2016); Enter. Leasing Co. of Fla. v. NLRB, 831 F.3d 534, 551
(D.C. Cir. 2016); Contractors’ Lab. Pool, Inc. v. NLRB, 323
F.3d 1051, 1061–62 (D.C. Cir. 2003).
The jurisdictional bar serves “[t]he dual themes of notice
and adjudicatory efficiency[.]” Local 900, Int’l Union of Elec.,
Radio & Mach. Workers v. NLRB, 727 F.2d 1184, 1191 (D.C.
Cir. 1984). “[W]e are bound by it.” HealthBridge Mgmt., LLC
v. NLRB, 798 F.3d 1059, 1069 (D.C. Cir. 2015).
As the Board pointed out, the complaint and the General
Counsel alleged only “discriminatory enforcement.” 368
N.L.R.B. No. 64 at *17. Thus, the complaint charged Kroger
with “selectively and disparately” enforcing the no-solicitation
policy. J.A. 124. The General Counsel’s opening statement at
the hearing reaffirmed that the case presented this “single issue.”
J.A. 40. The General Counsel’s briefs also stated that “[t]his
case presents a singular issue: whether [Kroger] . . . disparately
and discriminatorily enforced a no[-]solicitation/no[-]loitering
rule against the Union[.]” J.A. 177, 148. The same is true of
Local 400. See J.A. 202–11. Even after the Board’s decision
and Member McFerran’s discussion of a different theory, Local
400 did not seek reconsideration. It raised the Board dissenter’s
theory for the first time in this court. That was not enough.
Local 400 presents two reasons for avoiding the bar in 29
U.S.C. § 160(e).
First, Local 400 alleges that its argument is consistent with
the General Counsel’s disparate enforcement argument. It
contends that the Board “rests on a faulty effort to draw
distinctions between categories of discrimination cases.” Pet’r’s
Reply Br. 7. It is true that the ultimate issue was discrimination.
But there were different paths to get there. Compare Four B

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Corp. v. NLRB, 163 F.3d 1177, 1184 (10th Cir. 1998) (anti-
union animus), and Cannondale Corp., 310 N.L.R.B. 845, 849
(1993) (discriminatory promulgation) , with Sandusky Mall Co.,5
329 N.L.R.B. at 627–28 (disparate enforcement). The
proceedings below focused solely on disparate enforcement of
the policy, not on whether Kroger otherwise harbored animosity
toward the union. Moreover, the Board majority treated
Member McFerran’s argument as a separate theory intended to
“independently establish[] a violation of Section 8(a)(1).” 368
N.L.R.B. No. 64 at *22; see id. at *17 n.22. And the majority
viewed it as addressing a separate question: whether “[Kroger]
promulgated access restrictions in response to union activity[.]”
Id. at *17.
Second, Local 400 argues that it raised its theory in the
administrative proceedings by referring to the landlord’s 2014
letter. It points to the administrative law judge’s statement that
the letter “clearly targeted unions and other groups[.]” J.A. 36.
No one disputes that Local 400 mentioned the letter. But merely
including evidence that could support an objection is not the
same as urging the objection itself. Oral Arg. 5:51–6:51.
Despite this failure, we could consider the objection under
extraordinary circumstances. 29 U.S.C. § 160(e). Yet Local
400 has forfeited that too. It never even alleged extraordinary
circumstances in its opening brief (or in its reply brief). See Al-
Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019).
Cannondale points out that it “is settled law that an otherwise5
valid no-solicitation no-distribution rule violates the Act ‘when it is
promulgated to interfere with the employee right to self-organization
rather than to maintain production and discipline.’ Harry M. Stevens
Services, 277 NLRB 276 (1985), citing cases. See also Mack’s
Supermarkets, 288 NLRB 1082, 1096-1097 (1988).” 310 N.L.R.B. at
849.

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In sum, § 160(e) bars us from reviewing Local 400’s
objection. Accordingly, we dismiss the petition for judicial
review.
So ordered.

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