UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RIESBECK FOOD MARKETS,
INCORPORATED,
Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,
                                               No. 95-1766
Respondent,

LOCAL UNION 23, AFL-CIO, CLC,
United Food and Commercial
Workers International Union,
Intervenor.

NATIONAL LABOR RELATIONS BOARD,
Petitioner,

LOCAL UNION 23, AFL-CIO, CLC,
United Food and Commercial
Workers International Union,
                                               No. 95-1917
Intervenor,

v.

RIESBECK FOOD MARKETS,
INCORPORATED,
Respondent.

On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board.
(8-CA-21274, 8-CA-22322)

Argued: April 1, 1996

Decided: July 19, 1996
Before MURNAGHAN and HAMILTON, Circuit Judges, and
LAY, Senior Circuit Judge of the United States Court of Appeals
for the Eighth Circuit, sitting by designation.

_________________________________________________________________

Petition for review granted and enforcement denied by unpublished
per curiam opinion. Judge Hamilton wrote a separate opinion concur-
ring in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: Don Alan Zimmerman, SCHMELTZER, APTAKER &
SHEPARD, P.C., Washington, D.C., for Riesbeck. Richard A. Cohen,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
NLRB. James R. Reehl, UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION, LOCAL UNION 23, AFL-
CIO, CLC, Pittsburgh, Pennsylvania, for Intervenor. ON BRIEF:
Henry A. Platt, Daniel P. Greenbaum, SCHMELTZER, APTAKER
& SHEPARD, P.C., Washington, D.C., for Riesbeck. Frederick L.
Feinstein, General Counsel, Linda Sher, Acting Associate General
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
NLRB. Peter J. Ford, Assistant General Counsel, UNITED FOOD
AND COMMERCIAL WORKERS INTERNATIONAL UNION,
AFL-CIO, CLC, Washington, D.C., for Intervenor.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

                    2
OPINION

PER CURIAM:

Riesbeck Food Markets, Inc. ("Riesbeck") petitions to set aside the
order of the National Labor Relations Board ("NLRB"). The NLRB
found that Riesbeck, a non-union employer, committed an unfair
labor practice in violation of § 8(a)(1) of the National Labor Relations
Act ("NLRA"), 29 U.S.C. § 158(a)(1), by prohibiting union pickets
and handbillers who were not Riesbeck's employees from distributing
do-not-patronize literature to Riesbeck's customers on Riesbeck's
property. See Riesbeck Food Markets, Inc., 

 (No.
134) (Dec. 16, 1994).1 The NLRB and the union, as intervenor, cross-
petition for enforcement of the NLRB's order. We grant Riesbeck's
petition and deny the cross-petitions.

Background

On September 7, 1988, Local 23 of the United Food and Commer-
cial Workers International Union ("the union") commenced informa-
tional picketing and handbilling on Riesbeck's premises near the
customer entrances of Riesbeck's food stores in Wheeling, West Vir-
ginia, and St. Clairsville, Ohio. The union, which represented employ-
ees at a number of Riesbeck's competitors, had previously disclaimed
any interest in representing Riesbeck's employees. 2 The handbills and
picket signs truthfully said Riesbeck did not employ union labor and
asked customers to not patronize Riesbeck. The pickets and handbil-
lers did not interfere with the flow of customers or goods. None of
the union pickets or handbillers were employed by Riesbeck. Ries-
beck asked the pickets and handbillers to leave its premises, but they
refused. Riesbeck commenced trespass lawsuits in both West Virginia
and Ohio state courts against the union. The state courts issued pre-
liminary injunctions prohibiting the union's activities on Riesbeck's
premises. The union pickets and handbillers thereafter conducted their
_________________________________________________________________
1 The NLRB also found Riesbeck violated § 8(a)(1) because it failed to
dissolve state court injunctions against the union after the NLRB's Gen-
eral Counsel issued a complaint against Riesbeck.
2 In February 1988, Riesbeck gave the union access to its employees as
part of an apparent union organizational effort.

                    3
activities on public property outside the driveway entrances to Ries-
beck's stores in accordance with the injunctions.

The union filed unfair labor practice charges and the NLRB's Gen-
eral Counsel issued a complaint against Riesbeck alleging unfair labor
practices. The case was tried before an administrative law judge
("ALJ"), who found Riesbeck had committed an unfair labor practice
and entered a cease and desist order. After the ALJ's decision, the
state courts ultimately vacated their injunctions and dismissed Ries-
beck's lawsuits as preempted by the NLRA.

The ALJ found Riesbeck impermissibly discriminated against
union solicitation by discriminatorily preventing the union's informa-
tional picketing and handbilling. According to the ALJ, Riesbeck
"permitted all kinds of civic and charitable solicitation for a total of
almost 2 months a year" at its stores, J.A. 37, including candy sales
by volunteer fire departments, poppy sales by the Veterans of Foreign
Wars, bell ringing by the Salvation Army, and other solicitations by
youth sport groups, a school band, and the Easter Seals, but discrimi-
nated against the union by not allowing its solicitation.3

In a three-to-two decision, the NLRB affirmed the ALJ's determi-
nation that Riesbeck had committed an unfair labor practice by dis-
criminating against the union's solicitation. In addition to the fact that
Riesbeck allowed significant amounts of charitable solicitations but
not the union's solicitation, the NLRB also found Riesbeck's solicita-
tion policy--which provided for limited access to customers by chari-
table organizations whenever Riesbeck, in its discretion, thought such
access would enhance its business--to be inherently discriminatory
against protected union solicitation.4
_________________________________________________________________
3 The ALJ further found Riesbeck did not independently violate the Act
by maintaining its state lawsuits against the union because, under Bill
Johnson's Restaurants, Inc. v. NLRB, 

 (1983), the lawsuits
did not lack a reasonable basis and did not reflect a retaliatory motive.
4 The NLRB further found that maintaining the state court actions
against the union was an independent unfair labor practice under Makro,
Inc. (Loehmann's Plaza I), 

 (No. 81) (Nov. 21, 1991),
rev'd on other grounds on rehearing, Makro, Inc. (Loehmann's Plaza II),

                    4
Section 7 Rights

Riesbeck first argues the union's do-not-patronize solicitation is
not protected activity within the meaning of § 7 of the NLRA, 29
U.S.C. § 157,5 and thus prohibiting such solicitations is not a violation
of § 8(a)(1).6 Riesbeck contends the union pickets and handbillers,
who were not employed by Riesbeck, had no § 7 right to engage in
consumer boycott activities against Riesbeck on the basis of Ries-
beck's non-union status. Unlike organizational campaigns conducted
by union organizers who are not employed by the targeted employer,
in which the organizers have rights derivative of employees, e.g.,
Lechmere, Inc. v. NLRB, 

, 532 (1992); NLRB v. Babcock
& Wilcox Co., 

, 113 (1956), Riesbeck argues that union
pickets, who are not employed by Riesbeck, have no§ 7 right to
inform Riesbeck's customers that Riesbeck does not employ union
labor because such communication is not derivative of the rights of
Riesbeck's employees. The NLRB contends, however, that the union
representatives who engaged in the consumer boycott activities were
not asserting rights derivative of Riesbeck's employees, but rather
were asserting their own rights under the "mutual aid or protection"
clause of § 7. See Eastex, Inc. v. NLRB , 

, 564 (1978).

Riesbeck further argues that whether there is a§ 7 right to engage
in consumer boycott activities against a non-union employer outside
_________________________________________________________________

 (No. 24) (Jan. 25, 1995), rev. denied sub nom. United
Food & Commercial Workers v. NLRB, 

 (D.C. Cir. 1996).
Loehmann's Plaza I imposed on employers an affirmative duty to stay
state court proceedings within seven days after the General Counsel
issues a complaint against them. 305 N.L.R.B. at 671.

5 Section 7 of the NLRA provides:"Employees shall have the right to
self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection[.]" 29 U.S.C.§ 157.
6 Section 8(a)(1) of the NLRA provides: "It shall be an unfair labor
practice for an employer . . . to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in section 157 of this title[.]"
29 U.S.C. § 158(a)(1).

                     5
of the employer's premises, does not resolve the issue of whether that
right extends to such activities on the employer's property. The
Supreme Court has held that union organizers may come onto an
employer's property under two limited circumstances to communicate
with employees: first, if there are no other reasonably available chan-
nels of communication ("the inaccessibility exception"); and second,
"if the employer's notice or order . . . discriminate[s] against the
union by allowing other distribution" ("the discrimination excep-
tion"). NLRB v. Babcock & Wilcox, 

, 112 (1956). Accord
Lechmere, 502 U.S. at 535; Sears, Roebuck & Co. v. Carpenters, 

, 205 (1978). In Lechmere, the Court found that the inacces-
sibility exception was "a narrow one," 502 U.S. at 539, applicable
only when "`the location of a plant and the living quarters of the
employees place the employees beyond the reach of reasonable union
efforts to communicate with them,'" id. (quoting Babcock & Wilcox,
351 U.S. at 113) (emphasis omitted). Riesbeck argues that any § 7
right to engage in consumer boycott activities is a right of such lesser
value than the organizational rights at issue in Lechmere that it can
never trump the employer's paramount right to control its private
property even if the employer discriminates against union solicita-
tions. In a pre-Lechmere decision, however, the NLRB found the dis-
crimination exception of Babcock & Wilcox applies to the exercise of
a § 7 right to engage in consumer boycott activities against non-union
employers. See D'Alessandro's, Inc., 

, 83-84 (No.
27) (Dec. 29, 1988). The NLRB contends that the emphasis on the
"narrow" inaccessibility exception in Lechmere has no effect on dis-
crimination cases. See Jean Country, 

, 12 n.3 (No. 4)
(Sept. 27, 1988) (multi-factor balancing test in inaccessibility cases,
overruled in Lechmere, 502 U.S. at 535-38, involves "distinct analyti-
cal view" from discrimination cases).

In view of our holding that Riesbeck did not discriminate in barring
the union from its premises, we need not decide whether § 7 rights are
involved in the consumer boycott picketing or whether the Babcock
& Wilcox discrimination exception to an employer's right to control
its property applies to such § 7 rights. Thus, for purposes of our deci-
sion, we assume without deciding that the boycott activities were pro-
tected by § 7 rights and that the discrimination exception applies. On
the facts and circumstances of this case, however, we find no discrim-
ination.

                    6
Discrimination

Babcock & Wilcox established that "an employer may validly post
his property against nonemployee distribution of union literature . . .
if the employer's notice or order does not discriminate against the
union by allowing other distribution." 351 U.S. at 112. Discrimination
claims "inherently require a finding that the employer treated similar
conduct differently[.]" NLRB v. Southern Md. Hosp. Ctr., 

, 937 (4th Cir. 1990) (per curiam).7 In Southern Maryland Hospi-
tal Center, this court recognized "a difference between admitting
employee relatives for meals and permitting outside entities to seek
money or memberships" which defeated the NLRB's finding of dis-
crimination by the hospital. Id. at 937.

Like Southern Maryland Hospital Center, we find legally signifi-
cant differences between the charitable solicitation which Riesbeck
allowed and the union's "do not patronize" solicitation which Ries-
beck prohibited. Riesbeck could reasonably be seen to have allowed
the civic and charitable solicitation out of feelings of altruism or civic
duty; such motivations, however, would not allow for the union's do-
not-patronize distributions.8
_________________________________________________________________
7 See, e.g., NLRB v. Stowe Spinning, 

, 228-30 & n.7
(1949) (employer's denial of union organizer's right to use the only
meeting hall in a company town because of anti-union bias was properly
found to be discrimination); Davis Supermarkets, Inc. v. NLRB, 

, 1178 (D.C. Cir. 1993) (allowing outside union members to enter
building to communicate with employees but not allowing employees
who were members of another union to picket outside building was
"egregious" discrimination in violation of the NLRA), cert. denied, 

 (1994).
8 Cf. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 

,
48 (1983) ("[E]ven if we assume that by granting access to the Cub
Scouts, YMCA's, and parochial schools, the School District has created
a `limited' public forum, the constitutional right of access would in any
event extend only to other entities of similar character. While the school
mail facilities thus might be a forum generally open for use by the Girl
Scouts, the local boys' club, and other organizations that engage in activ-
ities of interest and educational relevance to students, they would not as
a consequence be open to an organization such as PLEA, which is con-
cerned with the terms and conditions of teacher employment.").

                    7
The NLRB argues, however, that Riesbeck, under its solicitation
policy, allowed consumer-oriented appeals by civic and charitable
groups solely for the purpose of enhancing its business, and thus dis-
criminated when the other side of the story--the union's message
against Riesbeck's business--was prohibited from being told on Ries-
beck's premises. Even if the civic and charitable groups thus became
the tools of the employer, however, an employer must have some
degree of control over the messages it conveys to its customers on its
private property. Cf. Sparks Nugget, Inc. v. NLRB, 

, 998
(9th Cir. 1992) (finding no discrimination when employer sponsored
anti-union speech oriented to customers but forbid nonemployees to
distribute pro-union literature). As the Supreme Court stated in the
free speech context:

          Implicit in the concept of the nonpublic forum is the right
          to make distinctions in access on the basis of subject matter
          and speaker identity. These distinctions may be impermissi-
          ble in a public forum but are inherent and inescapable in the
          process of limiting a nonpublic forum to activities compati-
          ble with the intended purpose of the property. The touch-
          stone for evaluating these distinctions is whether they are
          reasonable in light of the purpose which the forum at issue
          serves.

Perry, 460 U.S. at 49. In this case, Riesbeck has a strong interest in
preventing the use of its property for conduct which directly under-
mines its purposes, i.e., the sale of goods and services to Riesbeck's
customers, which was implicated by the union's solicitations but not
by the charitable solicitations. Thus, we find Riesbeck reasonably dis-
tinguished between charitable solicitations which encouraged its busi-
ness activity and the union's do-not-patronize message which was not
"compatible with the intended purpose of the property." See id.

Furthermore, on the facts of this case, there is no evidence suggest-
ing that Riesbeck was attempting to target union literature for special
adverse treatment. First, Riesbeck allowed the union to disseminate
information directly to the employees about membership in the union
in February 1988. Second, Riesbeck had consistently prohibited other
non-charitable solicitation of its customers on the premises, including,
for example, prohibiting a political candidate from campaigning at the

                    8
store. Cf. D'Alessandro's, Inc., 292 N.L.R.B. at 84 (fact that
employer allowed noncharitable vendors to sell on the premises as
well as two political candidates to make press conferences on the
premises, at which candidates criticized union pickets and advocated
right to work laws, is evidence of disparate treatment against union
pickets). Third, Riesbeck's policy states, without exception, that do-
not-patronize messages are not allowed on its premises and Riesbeck
has represented to us that it would enforce this policy against other
consumer boycotts sponsored by environmental and other groups.
There is no evidence of even a single isolated incident in which com-
mercial, political, or other controversial groups were permitted to
solicit at Riesbeck's stores. Cf. Be-Lo Stores , 318 N.L.R.B. ____ (No.
1), 

, 1320-21, 

, at *13
(July 31, 1995) (allowing distribution of religious and political litera-
ture, and the sales of incense by religious group, but prohibiting union
distribution is discriminatory). In sum, we find that neither Riesbeck's
policy nor its practices expressly discriminate against the union.9
Under these circumstances, Riesbeck did not discriminate against
union distributions by prohibiting the union's do-not-patronize solici-
tations while allowing various other civic and charitable groups to
solicit its customers.10
_________________________________________________________________
9 The union argues that Riesbeck's solicitation policy, by favoring
charitable organizations, facially discriminates against union activities,
citing NLRB v. Beverage-Air Co., 

, 418-19 (4th Cir. 1968).
In Beverage-Air, this court invalidated an employer's broad no-
solicitation rule which the court found chilled its employees' § 7 rights.
Id. at 419. That case, however, did not involve an anti-discrimination
principle. Here, Riesbeck's policy does not single out union activity for
adverse treatment. Thus, to the extent the policy chills trespassory union
activity, it does not do so in a discriminatory manner, which is the rele-
vant inquiry under the Babcock & Wilcox discrimination exception.
10 The NLRB found that Riesbeck independently committed an unfair
labor practice by failing to take affirmative actions to dissolve its state
court injunctions against the union after the General Counsel filed a com-
plaint in this action, thereby preempting the state actions. The NLRB
concedes that

         if the Court declines to enforce the Board's threshold unfair
         labor practice finding, we agree that there would no longer be a
         predicate for the Board's findings that the Company's mainte-

                   9
For the foregoing reasons, we grant Riesbeck's petition for review
and deny the cross-petitions for enforcement.

PETITION GRANTED AND ENFORCEMENT DENIED

HAMILTON, Circuit Judge, concurring in the judgment:

While I do not take issue with the majority's analysis regarding the
discrimination issue, I find it unnecessary to reach that issue because
I believe that the "mutual aid or protection" clause of § 7 of the
NLRA does not protect the union's picketing of Riesbeck and its
handbilling of Riesbeck's customers.

Riesbeck is appealing the NLRB's findings that it committed unfair
labor practices when Riesbeck (1) refused to allow the union access
to its property and (2) instituted state trespass actions against the
union. Before the NLRB can find that Riesbeck committed unfair
labor practices, the union's activity must be protected by § 7. See 29
U.S.C. § 158(a)(1).* Section 7 of the NLRA states, "Employees shall
have the right to self-organization, to form, join, or assist labor orga-
nizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection. . . ." 29
_________________________________________________________________

          nance of the state court trespass actions constituted an unfair
          labor practice. . . . Accordingly, in that eventuality, the Court
          should deny enforcement of this second unfair labor practice as
          well.

NLRB Br. at 18 n.6. See Loehmann's Plaza II, 316 N.L.R.B. at 114
("Absent a finding that the picketing and handbilling on private property
is protected, a lawsuit to enjoin that activity is not unlawful."). In light
of the NLRB's concession, and given our finding that prohibiting the
union's consumer boycott activities on Riesbeck's premises did not con-
stitute an unfair labor practice on Riesbeck's part, we also deny enforce-
ment of the NLRB's order finding Riesbeck committed an unfair labor
practice by failing to dissolve its state court injunctions against the union.
*The pertinent part of this statute states, "It shall be an unfair labor
practice for an employer . . . to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in section 157 of this title[.]"

                     10
U.S.C. § 157 (emphasis added). In the instant case, the Board and the
union, as intervenor, both contend that the union's activity falls under
the "mutual aid or protection" clause of § 7, and accordingly, they
conclude that the NLRB did not err in finding that the union's activity
was protected by § 7.

"The `mutual aid or protection' clause of Section 7 protects
employees who `seek to improve terms and conditions of employment
or otherwise improve their lot as employees through channels outside
the immediate employee-employer relationship.'" New River Indus.,
Inc. v. NLRB, 

, 1294 (4th Cir. 1991) (quoting Eastex,
Inc. v. NLRB, 

, 565 (1978)); see also Office & Profes-
sional Employees Int'l Union v. NLRB, 

, 82 (2d Cir. 1992)
(stating that the NLRA "revolves around the protection of workers'
efforts to better their working conditions through collective action").
Terms and conditions of employment that employees may seek to
improve include "wages, benefits, working hours, the physical envi-
ronment, dress codes, assignments, responsibilities, and the like."
New River Indus., 945 F.2d at 1294. But the"mutual aid or protec-
tion" clause does not protect employees who engage in concerted
activity for purposes that do not relate to the improvement of the
terms and conditions of their employment. See NLRB v. Washington
Aluminum Co., 

, 17 (1962) ("It is of course true that § 7
does not protect all concerted activities."); Office & Professional
Employees Int'l Union, 981 F.2d at 82 ("[T]he Act does not protect
any `union activity' engaged in by an employee if it is unrelated to
the terms and conditions of employment."); New River Indus., 945
F.2d at 1294-95 (finding that "a mocking letter about free ice cream
supplied in appreciation for a new contract with a supplier" which did
not relate to the employees' working conditions was not protected by
the "mutual aid or protection" clause).

The fundamental flaw in the NLRB's and the union's contention
that the union's activity was protected by the "mutual aid and protec-
tion" clause is that neither party has demonstrated, nor even asserted,
how the union's activity would improve the terms and conditions of
employment for the union employees of the grocery stores competing
with Riesbeck. Especially significant is the absence of any claim that
Riesbeck's nonunion status damaged or would damage the terms and
conditions of employment for the employees of the grocery stores

                    11
competing with Riesbeck, e.g., Riesbeck paying its employees less
than the prevailing area standards. Although the NLRB has previously
found union activity similar to the union's activity here as being pro-
tected by the "mutual aid or protection" clause of § 7, see
D'Alessandro's, Inc., 

, 83 (1988); Jean Country, 

, 17 (1988), overruled in part on other grounds,
Lechmere, Inc. v. NLRB, 

, 847-48 (1992), the NLRB's
decisions in those cases suffer from the identical flaw that the
NLRB's decision here suffers from: the failure to explain how "do-
not-patronize" messages will improve the terms and conditions of the
employees of union stores.

In NLRB v. Great Scot, Inc., 

 (6th Cir. 1994), the Sixth
Circuit dealt with a somewhat similar issue. In that case, the union
activity at issue was area standards picketing and handbilling, id. at
679, which the NLRB contends is analogous to the union's activity
here. Brief for NLRB at 14 n.4. In Great Scot , the union's agents car-
ried picket signs that stated the following: "`Notice to the Public--
Don't Shop [at Great Scot]. The store pays its employees wages and
fringe benefits which are far below those paid to Unionized Grocery
Store Employees in the area. This Company is attempting to destroy
our higher Union Standards.'" Great Scot, 39 F.3d at 680 (alteration
added by court). In response to the union's activity, Great Scot
requested that the union agents stop distributing handbills on its prop-
erty, contacted the police to aid in their removal, and filed a trespass
action in state court seeking injunctive relief against the union. Id.
The NLRB found that Great Scot's responses constituted unfair labor
practices. Id. at 682.

On appeal, Great Scot argued that the union's activity was not pro-
tected by § 7 because the union did not show that the wages and bene-
fits Great Scot gave its employees were below the area standards. The
Sixth Circuit agreed, and it denied enforcement of the NLRB's order.
The court stated: "Because it is `the duty of a union that seeks to
engage in lawful area standards picketing' to investigate wages and
conditions alleged to be substandard, the union has the burden of
`coming forward with credible evidence' that establishes both the area
standards and the claimed disparity." Id. at 684 (citations omitted)
(emphasis added by court). Because "the union wholly failed to offer
proof sufficient to permit the administrative law judge to determine

                    12
that Great Scot was properly subject to area-standards picketing," the
court found that the union's activity was unprotected by § 7. Id.

Like the union in Great Scot, the union here"wholly failed" to
offer any evidence showing how the union's "do-not-patronize" mes-
sage would improve the terms and conditions of employment for the
employees of the unionized grocery stores that competed with Ries-
beck. Absent such evidence, the "mutual aid or protection" clause
could not protect the union's activity here. Accordingly, I would grant
Riesbeck's petition for review and deny enforcement of the NLRB's
order on this sole ground.

                    13