                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                  PUBLISH
                                                                     DEC 18 1998
                  UNITED STATES COURT OF APPEALS
                                                                   PATRICK FISHER
                                                                           Clerk
                              TENTH CIRCUIT



 FOUR B CORP., doing business as
 Price Chopper,

       Petitioner/Cross-Respondent,
       v.                                            No. 97-9577
 NATIONAL LABOR RELATIONS
 BOARD,

    Respondent/Cross-Petitioner,
 ___________________

 UNITED FOOD AND COMMERCIAL
 WORKERS UNION, LOCAL 576,
 affiliated with United Food and
 Commercial Workers International
 Union, AFL-CIO, CLC “Local 576",

             Intervenor.


        ON PETITION FOR REVIEW AND CROSS-APPLICATION
             FOR ENFORCEMENT OF AN ORDER OF THE
               NATIONAL LABOR RELATIONS BOARD
                 (NOS. 17-CA-17232 and 17-CA-17299)




John D. Dunbar (Kelly S. May Moothart with him on the briefs), Daniels &
Kaplan, P.C., Kansas City, Missouri, for petitioner/cross-respondent.
Fred L. Cornnell (Frederick L. Feinstein, Acting General Counsel, Linda Sher,
Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General
Counsel, with him on the brief), National Labor Relations Board, Washington,
D.C., for respondent/cross-petitioner.

David M. Silberman, Bredhoff & Kaiser, Washington, D.C. (Laurence Gold,
Bredhoff & Kaiser, Washington, D.C.; James Coppess, Lynn Rhinehart,
Washington, D.C.; Peter J. Ford, Washington, D.C.; Robert J. Henry, Blake &
Uhlig, Kansas City, Kansas, with him on the brief), for intervenor.


Before ANDERSON, HENRY, and MURPHY, Circuit Judges.


ANDERSON , Circuit Judge.




      Four B Corp. d/b/a/ Price Chopper (“Price Chopper”), an operator of retail

grocery stores, petitions to set aside the decision and order of the National Labor

Relations Board, which reversed the decision of the administrative law judge

(“ALJ”) and found that Price Chopper violated section 8(a)(1) of the National

Labor Relations Act, 29 U.S.C. § 158(a)(1). The Board found that Price Chopper

discriminated against the intervenor in this case, United Food and Commercial

Workers Union, Local 576 (“Union”), by prohibiting representatives of the Union

from soliciting and distributing materials to off-duty employees at two of Price

Chopper’s stores while permitting non-union solicitations and distributions at

those stores. The Board cross-petitions for enforcement of the order. Because we

find that the Board’s conclusions and factual findings are supported by substantial
evidence, we deny Price Chopper’s petition for review and grant the Board’s

cross-petition for enforcement of the order.



                                   BACKGROUND

         At the time relevant to this case, Price Chopper operated 21 retail grocery

stores in the greater Kansas City area. This case involves the Price Chopper

stores in Roeland Park, Kansas, and in Grandview, Missouri.

         Price Chopper had a written no-solicitation policy effective December 1,

1993, which provided as follows:

               In the interest of efficiency, convenience and the continuing
         good will of our customers, and for the protection of our team
         members, there must be no solicitation or distribution of literature of
         any kind by any team member during the actual working time of the
         team member soliciting or the team member being solicited.

                Persons who are not Company team members may not solicit
         or distribute literature for any purpose in any customer service area,
         working area or any area restricted to Company team members.

                There must be no solicitation or distribution of literature of
         any kind by persons in customer service areas or shopping areas of
         the store during those hours when the store is open for business.

Joint Ex. 1, R. Vol. II. A copy of this policy was available in the office of both

the Roeland Park and Grandview stores, and both stores posted “No Solicitation”

signs.




                                           -3-
      On February 18, 1994, both stores were the target of what Price Chopper

describes as a “Union organizational blitz.” The ALJ found as follows:

             On February 18, 1994 Union agents entered Price Chopper’s
      Roeland Park and Grandview stores and began soliciting employees
      and distributing union literature to employees while they were
      working and assisting customers. Management told the agents to
      leave, and after the agents left, management found the stores littered
      with union literature. At the Roeland Park store, Store Director
      [Andy] Staley and a security guard escorted Gerald Meszaros (a lay
      minister and a volunteer agent for the Union) from the store.

Four B Corp. d/b/a Price Chopper   , 1996 NLRB LEXIS 190, at *8-9 (April 1,

1996). Ms. Staley informed Mr. Meszaros that he would have to distribute any

Union literature off the store’s property and outside the parking lot.

Approximately six weeks later, Grandview store director Robert C. Scott told the

same thing to union representatives who came to the store wishing to speak to

employees in front of the store or in the parking lot. Thus, Union representatives

were prohibited from soliciting and distributing to off-duty Price Chopper

employees on the sidewalks and parking lots outside the Roeland Park and

Grandview stores.

      Both stores had, however, permitted other groups to solicit on site. The

Board described the prior solicitations as follows:

      [Price Chopper] allowed the Salvation Army to solicit at both its
      Roeland Park and Grandview stores on a daily basis between
      Thanksgiving and Christmas 1993. The Shriners were permitted to
      solicit contributions in support of their circus and rodeo at both
      stores during 1993; the organization’s representatives appeared at the

                                         -4-
      Roeland Park store three to four times a week for a period of 3 to 4
      months, and at the Grandview store one weekend per month for an
      equivalent period. Also in 1993, a community group sold tickets for
      a pancake supper at the Roeland Park store on one occasion, and a
      Cub Scout pack sold mugs or cups to raise money at the Grandview
      store on one occasion.

Four B Corp. d/b/a Price Chopper   , 325 N.L.R.B. No. 20, 1997 NLRB LEXIS 946

at *12-13 (Nov. 8, 1997). Additionally, there was evidence that on two prior

occasions, non-Union groups attempting to solicit Price Chopper employees at

both stores were denied access. In late February or early March of 1994, Price

Chopper’s management informed the store directors that the no-solicitation policy

would have to be strictly enforced. Since that time, no solicitation by anyone,

including the Salvation Army and the Shriners, has been permitted.



      I. Proceedings Before the ALJ

      The Board’s General Counsel filed a complaint, alleging that Price Chopper

selectively and disparately enforced its no-solicitation policy to prohibit Union

solicitations while permitting non-Union solicitations, thereby interfering with,

restraining and coercing employees in the exercise of their rights under section 7

of the NLRA, 29 U.S.C. § 157, in violation of section 8(a)(1) of the Act, 29

U.S.C. § 158(a)(1). Following a hearing, the ALJ dismissed the complaint,

finding no violation of section 8(a)(1). He reasoned that the prior solicitations

Price Chopper had permitted were of its    customers . By contrast, the Union was

                                          -5-
attempting to solicit the stores’   employees . He thus found no disparity between

permitting non-Union solicitations of store customers and denying Union

solicitation of employees.



       II. Proceedings Before the Board

       The General Counsel and the Union filed exceptions to the ALJ’s decision.

The Board, with one member dissenting, disagreed with the ALJ and held that

Price Chopper “violated Section 8(a)(1) by discriminatorily excluding the union

representatives from soliciting and distributing to off-duty employees on the

sidewalks and parking lots of its Roeland Park and Grandview facilities.”     Price

Chopper , 325 N.L.R.B. at ___, 1997 NLRB LEXIS 946 at *15.

       The Board began by rejecting the ALJ’s factual finding that the non-Union

solicitations permitted by Price Chopper were directed at customers only:

              We note initially that the record does not support the judge’s
       finding that the nonunion solicitations [Price Chopper] had permitted
       on its premises were directed at its customers instead of its
       employees. No witness testified that the nonunion organizations
       limited their solicitations to customers. Indeed, most of the
       solicitation activity was engaged in by groups that generally accept
       donations from anyone passing by. Moreover, much of this
       solicitation took place at or near store entrances, where employees
       would normally be expected to enter and leave the stores.

Id. at *4 (footnote omitted).




                                           -6-
       The Board then held that, even if the Union and non-Union solicitations

were directed at different groups, it would still find discrimination against the

Union in violation of section 8(a)(1), because permitting non-Union solicitation

on site while denying all Union access to off-duty employees amounts to

discrimination against     Union solicitation, regardless of audience. The Board

inferred the existence of a “discriminatory motive” from the fact that Price

Chopper’s written no-solicitation policy does not even address the Union’s

solicitation efforts in this case.   1
                                         “[W]e think that when an employer, like [Price

Chopper], has a published rule prohibiting solicitation under stated circumstances,

and excludes a union from its property under materially different circumstances in

which no other outside organization has been excluded, it is fair to infer, as we do

here, that a discriminatory motive lies behind the exclusion.”        Id. at *11.

       The Board rejected Price Chopper’s argument that the non-Union

solicitation it permitted was insignificant enough to qualify for the “beneficial

acts” exception to the discrimination prohibition of section 8(a)(1). It also

rejected Price Chopper’s argument that it was justified in excluding Union


       1
        As the Board correctly noted, the policy forbids solicitations and
distributions between employees during working time, by non-employees in
customer service areas, working areas or areas restricted to employees, and by
anyone in customer service areas or shopping areas during business hours. It says
nothing about non-employees like the Union representatives soliciting and
distributing to off-duty employees on the parking lots and sidewalks outside the
stores.

                                               -7-
representatives because of their disruptive behavior during the “organizational

blitz” on February 18, 1994, finding that “[n]o witness indicated that the asserted

misconduct played any part in the decision to exclude the union representatives

from the sidewalks and parking lots.”     Id. at *14. Finally, it rejected Price

Chopper’s argument that it was justified in excluding the Union representatives

because they failed to first ask permission, finding that “[n]o witness testified that

the Union’s representatives were told that they were being denied access to [Price

Chopper’s] outside nonwork areas because they had not first asked permission.”

Id. at *15.

       The Board accordingly entered an order directing Price Chopper to cease

and desist from discriminatorily prohibiting Union representatives from

communicating with Price Chopper’s off-duty employees on the sidewalks and

parking lots adjacent to the Roeland Park and Grandview stores, and,

affirmatively, to post a remedial notice and to allow Union representatives to

communicate with off-duty employees during the 60-day notice posting period.

       One Board member dissented, arguing that Price Chopper did not

discriminate against employees “based on Section 7 considerations. . . . Where,

as here, [Price Chopper] differentiated between appeals to customers and appeals

to employees, it cannot be said that [Price Chopper] unlawfully discriminated

where, as here, all employees were treated alike (on and off duty).”     Id. at *19, 22


                                           -8-
(dissenting opinion). In response to the majority’s view that the

customer/employee distinction was irrelevant, or meaningless, because the non-

Union groups solicited anyone who passed by, the dissent observed:

       [T]here is no evidence that the nonunion groups solicited any
       employees. As the prosecutor of a “discrimination” allegation, the
       General Counsel had the burden of proof to show disparate treatment,
       and he did not meet that burden here. Further, even assuming
       arguendo that the evidence established that nonunion groups solicited
       off-duty employees, the result would be the same. The nonunion
       groups were not soliciting employees qua employees. They were
       soliciting anyone who passed by. By contrast, the union agents here
       were soliciting employees qua employees.

Id. at *23 (footnote omitted). Because Price Chopper’s policy would permit

Union solicitation of customers , and because the Union and the General Counsel

failed to show that such Union solicitation of   customers had ever been denied, the

dissent opined that no discrimination existed.



       III. This Petition

       In this petition, Price Chopper argues the Board erred in finding, contrary

to the ALJ, that it violated section 8(a)(1) because: 1) prior to the Union’s

attempts to solicit, few other groups had been permitted to solicit and “then for a

limited solicitation purpose upon asking permission which would not void [Price

Chopper’s] no-solicitation policy;” 2) no other groups had been permitted to

solicit Price Chopper employees; 3) Price Chopper had previously denied other


                                           -9-
groups requests to solicit; 4) the conduct of Union representatives on February 18

justified the subsequent denial of their solicitation request; and 5) no solicitations

at all have been permitted since late February or early March 1994. Pet’r’s Br. at

4.

      We resolve this case on its facts, not on legal distinctions. We hold that

substantial evidence supports the Board’s finding that Price Chopper

discriminated against the Union when it prohibited Union representatives from

soliciting off-duty employees in the parking lots and sidewalks outside the two

Price Chopper stores.



                                    DISCUSSION

      We have stated before our standard of review for the Board’s orders:

“while we review legal determinations de novo, our standard for reviewing factual

determinations is governed by 29 U.S.C. § 160(e), which states that ‘findings of

the Board with respect to questions of fact if supported by substantial evidence on

the record considered as a whole shall be conclusive.’”     Medite of New Mexico,

Inc. v. NLRB , 72 F.3d 780, 785 (10th Cir. 1995). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.”   Consolidated Edison Co. v. NLRB      , 305 U.S. 197, 229 (1938);   see

also Medite of New Mexico , 72 F.3d at 785. Accordingly, if supported by


                                          - 10 -
substantial evidence, we must affirm the Board’s conclusions “even though we

might reach a different result were we reviewing the record de novo.”        Medite of

New Mexico , 72 F.3d at 785. Our standard of review does not change because

the ALJ and the Board have reached different conclusions.         Id. ; see also Nephi

Rubber Prods. Corp. v. NLRB , 976 F.2d 1361, 1364 (10th Cir. 1992). The record

nonetheless includes the ALJ’s findings, “‘whether they contradict or support the

Board’s determination.’”     Medite of New Mexico , 72 F.3d at 785 (quoting

Harberson v. NLRB , 810 F.2d 977, 983 (10th Cir. 1987)).

       We review the Board’s legal judgments “to determine whether the Board

‘correctly interpreted and applied the law.’”       Nephi Rubber Prods. , 976 F.2d at

1363-64 (quoting Le’Mon v. NLRB , 952 F.2d 1203, 1206 (10th Cir. 1991)).

However, to the extent the Board is interpreting and applying the NLRA, we

must accord its interpretation some deference: “[f]or the Board to prevail, it need

not show that its construction is the   best way to read the statute; rather, courts

must respect the Board’s judgment so long as its reading is a reasonable one.”

Holly Farms Corp. v. NLRB , 517 U.S. 392, 409 (1996).

       Section 7 of the NLRA guarantees employees “the right to self-

organization, to form, join, or assist labor organizations, . . . and to engage in

other concerted activities for the purpose of collective bargaining or other mutual

aid or protection . . . .” 29 U.S.C. § 157. Section 8 makes it an unfair labor


                                           - 11 -
practice “to interfere with, restrain, or coerce employees in the exercise of” their

section 7 rights. 29 U.S.C. § 158(a)(1);    see Albertson’s, Inc. v. NLRB , No.

97-9509, slip op. at 8-9 (10th Cir. Nov. 10, 1998).

       “As a rule, . . . an employer cannot be compelled to allow distribution of

union literature by nonemployee organizers on his property.”     Lechmere, Inc. v.

NLRB , 502 U.S. 527, 533 (1992). There are two exceptions to this general rule.

First, an employer violates section 8(a)(1) if it prohibits union access to the

employer’s property if the employees are otherwise “inaccessible” because they

are “‘beyond the reach of reasonable union efforts to communicate with them.’”

Id. at 534 (quoting NLRB v. Babcock & Wilcox Co. , 351 U.S. 105, 112 (1956)).        2



Second, an employer may not discriminate in violation of section 8(a)(1) by

denying “union access to its premises while allowing similar distribution or

solicitation by nonemployee entities other than the union.”     Lucile Salter Packard

Children’s Hosp. v. NLRB , 97 F.3d 583, 587 (D.C. Cir. 1996);      see also Babcock ,

351 U.S. at 112; Albertson’s, Inc. , slip op. at 9. This case involves this second

non-discrimination exception.

       Under the non-discrimination exception, “[a]n employer may not exercise

its usual right to preclude union solicitation and distribution on its property if the



       2
        All parties seem to agree that the inaccessibility exception is not relevant
to this case.

                                           - 12 -
employer permits similar activity by other nonemployee entities ‘in similar,

relevant circumstances.’”    Lucile Salter Packard , 97 F.3d at 587 (quoting   Jean

Country , 291 N.L.R.B. 11, 12 n.3 (1988)). The Board thus applies a “disparate

treatment” analysis to discrimination claims.      See Food Lion, Inc. , 304 N.L.R.B.

602, 604 (1991); see also Albertson’s, Inc. , slip op. at 9. Accordingly, disparate

treatment of similarly situated would-be solicitors, one union and one non-union,

will result in a finding of a section 8(a)(1) violation, unless the non-union

solicitation falls within one of two exceptions to the non-discrimination rule.

Under the first exception, “the employer’s decision to permit nonunion

solicitation does not violate the provision if the solicitations at issue consist only

of ‘a small number of isolated “beneficent acts”’ that constitute narrow

exceptions to the employer’s otherwise absolute policy against outsider

solicitation.”   Lucile Salter Packard , 97 F.3d at 587. Under the second exception,

allowing non-union solicitations relating “to the employer’s business functions

and purposes” may avoid violating section 8(a)(1).      Id. at 588. Price Chopper

relies in part on the “beneficent acts” exception to the non-discrimination rule.

       As indicated, the Board first found that the record supported the inference

that Price Chopper had a discriminatory motive when it excluded the Union

organizers from the sidewalks and parking lots surrounding its two stores. We

conclude that substantial evidence in the record supports that finding.


                                          - 13 -
       As the Board observed, Price Chopper’s written no-solicitation policy does

not address the type of solicitation the Union organizers attempted to conduct in

this case. The written policy bans solicitations of employees in the store (in

customer service areas or working areas or areas restricted to employees) and

during business hours. Prior attempts to solicit employees   inside the store and

during working hours were prohibited pursuant to that written policy.   3
                                                                            However,

because the written policy does not address the solicitation of off-duty employees

on the sidewalks and parking lots surrounding the stores, Price Chopper’s

decision to exclude such solicitation by the Union was not in accordance with its

written no-solicitation policy.   4



       The Board found as follows with respect to Price Chopper’s no-solicitation

policy and the decision to exclude the Union representatives:

       [Price Chopper] . . . had, in effect, two policies concerning
       solicitation. One, the written policy . . . , prohibited all outside
       entities from soliciting on-duty employees in certain defined areas
       during specified times. The other, unwritten policy, hastily


       Ms. Staley, the Roeland Park store director, testified that some people
       3

from another retail store, Pace, “came in and actually approached some of our
teammates on the checkstands. At the time I was made aware of it, I asked them
to leave. Then I went to their office and explained to their human resources
director that we did not allow people to approach our teammates on company
time.” Tr. of Hr’g at 83, R. Vol. I.

       The fact that Price Chopper was not following a written policy when it
       4

excluded the Union representatives is not, of course, determinative of whether a
section 8(a)(1) violation occurred. An employer need not necessarily act in
accordance with a written policy.

                                          - 14 -
       implemented in the face of the Union’s organizing effort, precluded
       unions from soliciting its employees, whether on duty or off duty,
       anywhere on its property at any time.

              . . . [W]hen an employer, like [Price Chopper], has a published
       rule prohibiting solicitation under stated circumstances, and excludes
       a union from its property under materially different circumstances in
       which no other outside organization has been excluded, it is fair to
       infer, as we do here, that a discriminatory motive lies behind the
       exclusion.

Price Chopper , 325 N.L.R.B. at ___, 1997 NLRB LEXIS 946 at *9-11.

       “An employer’s antiunion motivation often may be proven only by

circumstantial evidence.”      Ready Mixed Concrete Co. v. NLRB    , 81 F.3d 1546,

1550 (10th Cir. 1996). Given that “[o]ur review of the Board’s factfinding is

quite narrow,” id. at 1551, we find that substantial evidence in the record supports

the Board’s finding, based on circumstantial evidence, that Price Chopper had a

discriminatory motive when it refused to permit Union representatives to solicit

off-duty employees on sidewalks and in the parking lots outside its stores.

       Price Chopper argues that it legitimately distinguished between solicitations

of employees and solicitations of customers and that, while it permitted the latter,

it had never permitted the former, and its refusal to permit the Union

representatives to solicit its off-duty employees was merely an implementation of

that policy.   5
                   However, the evidence does not support the existence of any


       5
           Courts have recognized that employers may make neutral, non-section 7-
                                                                      (continued...)

                                           - 15 -
coherent or consistent distinction along those lines. Price Chopper’s written

policy does not itself differentiate among the target audiences of proposed

solicitations; rather, it prohibits all solicitations in certain areas and during

certain hours. Moreover, the two store managers who excluded the Union

representatives did not testify that their decisions were based upon an

employee/customer distinction.

      Additionally, Price Chopper presented no evidence that there was any other

neutral, non-discriminatory reason for adopting this new unwritten policy

prohibiting solicitations of off-duty employees on the sidewalks and in the

parking lots outside its stores. It presented no evidence that it did so because of

concern about disruptive conduct stemming from the behavior of Union

representatives on February 18. Nor did it present any evidence that the Union’s

failure to ask permission caused the activation of this new policy.




      5
        (...continued)
based distinctions between different kinds of solicitations. Thus, the Seventh
Circuit has held that an employer could permit the posting of swap-and-shop
notices on its bulletin boards, but no notices of any meetings, including union
meetings. Guardian Industries Corp. v. NLRB , 49 F.3d 317 (7th Cir. 1995). The
Fourth Circuit held that an employer could distinguish between “charitable
solicitations which encouraged [the employer’s] business activity and the union’s
do-not-patronize message” which was harmful to the employer’s business.
Riesbeck Food Mkts, Inc. , Nos. 95-1766, 95-1917, 1996 WL 405224 at *4 (4th
Cir. July 19, 1996) (unpublished decision).

                                          - 16 -
       Rather, the evidence in this case suggests that, after permitting various

charitable groups to solicit customers periodically but regularly, Price Chopper

banned any solicitation by Union organizers following the Union’s organizational

efforts. Substantial evidence supports the Board’s finding that this ban was

motivated by an anti-union animus. We need go no further to find that Price

Chopper violated section 8(a)(1) by discriminating in its application of its no-

solicitation policy.   6




                                  CONCLUSION

       For the foregoing reasons, we DENY Price Chopper’s petition to set aside

the Board’s order and we GRANT the Board’s cross-petition and ENFORCE the

Board’s order.




       6
        Price Chopper argues that, in any event, the number of other non-union
groups permitted to solicit in its stores was so small as to fall within the
“beneficent acts” exception to the non-discrimination rule. Thus, Price Chopper
argues, by permitting a few isolated solicitations, it has not prevented itself from
rightfully excluding the Union representatives. The Board found that “the
exceptions [Price Chopper] made to its no-solicitation policy were too extensive
to enable [Price Chopper] to deny access to the Union on similar terms.”     Price
Chopper , 325 N.L.R.B. at ___, 1997 NLRB LEXIS at *12. We agree with the
Board. Given the frequency and duration of the solicitations permitted, Price
Chopper cannot claim that they fall within the narrow “beneficent acts”
exception. See Lucile Packard Salter , 97 F.3d at 587; Guardian Indus. Corp. , 49
F.3d at 321; Hammary Mfg. Corp. , 265 N.L.R.B. No. 57 at __ n.4, 1982 WL
23979 at *1.

                                        - 17 -
97-9577, Four B v. NLRB

Murphy, J., concurring

       I concur in the judgment and, with the exception of footnote 5, the opinion.

       Footnote 5 discusses the legal issues raised by an employer’s attempt to

distinguish between solicitations on facially “neutral, non-section 7-based”

grounds, such as Price Chopper’s asserted distinction between solicitations of

employees and of customers. In text, however, the majority correctly observes

that in this case “the evidence does not support the existence of any coherent or

consistent distinction” between solicitations of employees and of customers and

that “Price Chopper presented no evidence that there was any other neutral, non-

discriminatory reason for adopting [its] new unwritten policy prohibiting

solicitations of off-duty employees . . . outside its stores.” Majority Op. at 16.

As a consequence, this panel need not address the hypothetical question of

whether that or any other purportedly neutral distinction would violate the NLRA.

Complex legal and policy issues inhere in that hypothetical question, the

resolution of which Congress and the Supreme Court have entrusted in the first

instance to the Board.   See, e.g., Hudgens v. NLRB   , 424 U.S. 507, 522 (1976).

This court, then, should only address the question when it becomes real and has

first been addressed by the Board. At that point, this court would be bound to

defer to any permissible construction of the NLRA by the Board.      See Holly

Farms Corp. v. NLRB,     517 U.S. 392, 398–99, 409 (1996).
       Footnote 5, moreover, does not even discuss the purportedly neutral

distinction asserted by Price Chopper in this case, i.e., a distinction between

target audiences. Rather, i t analogizes to cases distinguishing between types of

solicitations.   See Guardian Indus. Corp. v. NLRB,       49 F.3d 317, 321–22 (7th Cir.

1995); Riesbeck Food Mkts., Inc. v. NLRB,         Nos. 95-1766, -1917, 1996 WL

405224, at *3–*4 (4th Cir. July 19, 1996) (unpublished disposition). In so doing,

footnote 5 cannot even be treated as obiter reflecting favorably upon those cases.

       Certainly footnote 5 should not be read as an endorsement, albeit in dicta,

of the unpublished Riesbeck decision.     7
                                               This panel has not had the benefit of a

Board ruling or advocacy on the charitable solicitation issues there presented.

Furthermore, Riesbeck involved informational solicitation, while this case

involves organizational solicitation. Caselaw establishes a hierarchy of activities

under section 7, and nonorganizational activity by nonemployees, like that in

Riesbeck , merits the least protection.       See, e.g., United Food & Commercial

Workers v. NLRB , 74 F.3d 292, 298 (D.C.Cir. 1996);          NLRB v. Great Scot, Inc. , 39

F.3d 678, 682 (6th Cir. 1994). This distinction has been critical to other courts.

In a 1996 case involving nonorganizational solicitation, the Sixth Circuit

published an opinion similar to     Riesbeck . See Cleveland Real Estate Partners v.



       In the other case cited in footnote 5, the Seventh Circuit simply rejected
       7

the Board’s inference of union animus from the specific facts presented.    See
Guardian Indus. v. NLRB , 49 F.3d 317, 319–22 (7th Cir. 1995).

                                               -2-
NLRB , 95 F.3d 457, 464–65 (6th Cir. 1996). Both the Sixth Circuit, in a later

holding, and the Fourth Circuit, in dicta, have since indicated that       Cleveland Real

Estate Partners is limited to nonemployee, nonorganizational cases.           See Meijer,

Inc. v. NLRB, 130 F.3d 1209, 1212–13 & n.4 (6th Cir. 1997);            Be-Lo Stores v.

NLRB, 126 F.3d 268, 284 (4th Cir. 1997).




                                            -3-
