                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0233n.06
                             Filed: March 30, 2005

                                         Nos. 03-2558/04-1099

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


WAL-MART STORES, INC.                                    )
                                                         )
        Petitioner/Cross Respondent,                     )         ON PETITION FOR REVIEW
                                                         )         AND CROSS-APPLICATION FOR
v.                                                       )         ENFORCEMENT OF A FINAL
                                                         )         ORDER OF THE NATIONAL
NATIONAL LABOR RELATIONS BOARD,                          )         LABOR RELATIONS BOARD
                                                         )
        Respondent/Cross Petitioner                      )                     OPINION
                                                         )
UNITED FOOD    AND COMMERCIAL                            )
WORKERS UNION, LOCAL 880, AFL-CIO,                       )
                                                         )
        Intervenor.                                      )
                                                         )
                                                         )
                                                         )
                                                         )




BEFORE: NORRIS AND GIBBONS, Circuit Judges, TODD, District Judge.*

        TODD, District Judge. Petitioner-appellant Wal-Mart Stores, Inc. seeks review of a

Decision and Order of the National Labor Relations Board (“NLRB” or “Board”). The NLRB

cross-appeals for enforcement of the Order. The NLRB determined that Wal-Mart violated section

8(a)(1) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(1), at its Noblesville,



        *
          The Honorable James D. Todd, Chief District Judge for the Western District of Tennessee, sitting by
designation.
Nos. 03-2558/04-1099
Wal-Mart Stores, Inc. v. NLRB

Indiana store by discriminatorily prohibiting union organizers from handbilling on the premises and

causing the local police to threaten the union organizers with arrest if they did not leave the

premises. The sole argument raised by Wal-Mart in this appeal is that, based on Sixth Circuit

precedent, it did not act discriminatorily toward the handbillers. Because we conclude that Wal-

Mart is precluded from raising this argument on appeal by section 10(e) of the NLRA, 29 U.S.C.

§ 160(e), we DENY Wal-Mart’s petition for review and GRANT the NLRB’s cross-petition for

enforcement of its Order.

                                       I. Procedural History

       This case came before the NLRB on charges filed January 10, 2001, by the United Food and

Commercial Workers International Union, Local 880, AFL-CIO (“Union”). The Union alleged that

Wal-Mart discriminatorily prohibited union organizers from handbilling at its Noblesville, Indiana,

store even though they were in compliance with Wal-Mart’s written policy on solicitation and

distribution activity and discriminatorily caused the local police to instruct the handbillers to leave

the premises and to threaten them with arrest if they refused. The Union also alleged that Wal-Mart

violated the NLRA at its Muncie, Indiana, store by engaging in surveillance of union activity.

       Following a hearing, an administrative law judge (“ALJ”) issued a decision and

recommended order on December 14, 2001, finding that Wal-Mart violated the NLRA at the

Noblesville store, but dismissing the allegation related to the Muncie store. The ALJ recommended

that Wal-Mart be ordered to cease and desist discriminating against union organizers in connection

with its solicitation policy or “[i]n any like or related manner interfering with, restraining, or

coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.” (JA 20.)

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Wal-Mart Stores, Inc. v. NLRB

The ALJ also recommended that Wal-Mart be ordered to post a notice to employees at the

Noblesville store informing them of their rights under section 7 of the NLRA. Exceptions to the

decision were filed by Wal-Mart, the Union, and the NLRB’s General Counsel. The NLRB affirmed

the ALJ’s findings on November 28, 2003.

                                               II. Facts

        On August 4, 2000, Wal-Mart sent a memo to its store managers setting forth its policy on

solicitation and distribution of literature on store premises. The policy prohibited all solicitation and

distribution inside the store but allowed it outside the store as long as individuals did not block the

entrances and exits of the store and remained at least fifteen feet away.

        On August 15, 2000, union organizers Alberta Jordan-Rigsby and Jeffrey Kimbrough began

distributing union literature to Wal-Mart employees outside the two main entrances of a Wal-Mart

Supercenter in Noblesville, Indiana. Jordan-Rigsby and Kimbrough were ten to fifteen feet away

from the entrances and were not blocking the entrances or exits. After approximately ten minutes,

assistant manager Jeff Staton came outside and asked the union organizers to leave. Jordan-Rigsby

told Staton that attorneys for the Union and Wal-Mart had agreed that the handbilling could take

place as long as they did not block the entrances or interfere with customers, and continued to

distribute the union literature. A second assistant manager, Patty Budds, came outside and also told

the organizers to leave, stating that Wal-Mart did not support unions.

        When Jordan-Rigsby and Kimbrough did not leave the premises, Staton called the police.

Patrol Officer Timothy Hendricks arrived and Staton advised him that the union organizers did not

have permission to handbill and asked Hendricks to give them a warning for trespassing. Hendricks

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Wal-Mart Stores, Inc. v. NLRB

did so and asked them to leave. Jordan-Rigsby and Kimbrough complied with Hendricks’ request

and left. No Wal-Mart employee ever informed the organizers that Wal-Mart’s policy would allow

them to continue to distribute literature as long as they remained fifteen feet away from the

entrances.

                                     III. Standard of Review

       The Board’s findings of fact will not be disturbed as long as they are supported by substantial

evidence in the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-91 (1951).

Substantial evidence has been defined as “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Dupont Dow Elastomers, L.L.C. v. NLRB, 296 F.3d 495, 500

(6th Cir. 2002) (citation omitted). We also review the NLRB’s application of law to the particular

facts of the case under the substantial evidence standard. See NLRB v. Talsol Corp., 155 F.3d 785,

793 (6th Cir. 1998). The Board’s conclusions of law are subject to de novo review, and its

reasonable interpretations of the NLRA are to be afforded deference. Lee v. NLRB, 325 F.3d 749,

754 (6th Cir. 2003).

                                            IV. Analysis

       The courts have recognized that as a general 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). However, there is a “discrimination exception” to the general

rule which states that an employer violates section 8(a)(1) of the NLRA if it denies a 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);

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Wal-Mart Stores, Inc. v. NLRB

see also NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956) (“[A]n 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.”); 6 West Ltd. Corp.

v. NLRB, 237 F.3d 767, 779 (7th Cir. 2001); Four B Corp. v. NLRB, 163 F.3d 1177, 1183 (10th Cir.

1998).

         Wal-Mart argues, however, that under Albertson’s, Inc. v. NLRB, 301 F.3d 441 (6th Cir.

2002), Sandusky Mall Co. v. NLRB, 242 F.3d 682 (6th Cir. 2001), and Cleveland Real Estate

Partners v. NLRB, 95 F.3d 457 (6th Cir. 1996), overruled on other grounds by NLRB v. Webcor

Packaging, Inc., 118 F.3d 115 (6th Cir. 1997), an employer’s no solicitation policy is not

discriminatory unless it “favors one union over another, or allows employer related information

while barring similar union-related information.” Cleveland Real Estate Partners, 95 F.3d at 465.

In each of these cases, union handbilling was prohibited while charities and/or civic organizations

were allowed to solicit, and in each case, the court held that the prohibition was not discriminatory.

See Albertson’s, 301 F.3d at 451-52; Sandusky Mall, 242 F.3d at 692; Cleveland Real Estate

Partners, 95 F.3d at 461-65. Therefore, Wal-Mart contends that it may treat union solicitation and

distribution of literature differently than comparable nonunion activity. Wal-Mart also contends

that there is no evidence that it favored one union over another or distributed employer information

while prohibiting union information.

         The NLRB and the Union rely upon section 10(e) of the NLRA, 29 U.S.C. § 160(e), and

Woelke & Romero Framing v. NLRB, 456 U.S. 645 (1982) to argue that this court cannot consider

the argument made by Wal-Mart on appeal because it was never raised in the proceedings before

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Wal-Mart Stores, Inc. v. NLRB

the NLRB. Section 10(e) provides, in pertinent part: “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.” In Woelke,

the Supreme Court held that section 10(e) barred judicial review of an issue when it was raised by

neither the NLRB nor the employer during the proceedings before the Board. 456 U.S. at 665-66.

       During the NLRB proceedings, it was Wal-Mart’s position that Jordan-Rigsby and

Kimbrough were handbilling inside the Noblesville store when they were asked to leave. Therefore,

Wal-Mart’s argument that it did not discriminate against the union organizers was based entirely on

the assertion that it treated the union organizers the same as nonunion individuals seeking to solicit

or distribute literature inside the store. The ALJ, however, credited the testimony of those witnesses

who testified that Jordan-Rigsby and Kimbrough were handbilling outside the store, rather than

inside. Thus, the ALJ found that Wal-Mart violated section 8(a)(1) of the NLRA when it asked the

handbillers to leave and called the police to threaten them with arrest for trespassing, rather than

following the policy that allowed their activity as long as it occurred at least fifteen feet from the

store entrances. Although Wal-Mart filed numerous exceptions to the ALJ’s decision, at no time

did it contend that it could legitimately treat union handbilling and nonunion handbilling differently.

       The theory that Wal-Mart raises for the first time in this appeal was not raised at any time

during the NLRB proceedings. Furthermore, Wal-Mart does not claim that there are extraordinary

circumstances that would excuse its failure to do so. Therefore, judicial review of Wal-Mart’s

argument is barred pursuant to section 10(e) of the NLRA and Woelke.

                                           V. Conclusion

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Wal-Mart Stores, Inc. v. NLRB

        For the foregoing reasons, we DENY Wal-Mart’s petition for review of the NLRB’s

Decision and Order and we GRANT the NLRB’s cross-petition and enforce the Board’s Order in

full.




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