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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.
2
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
3
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
5
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-
6
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.
7
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.