On Petition for Review of an Order of the National Labor Relations Board
Before: Ginsburg, Chief Judge, and Sentelle and Roberts,
The opinion of the court was delivered by: Ginsburg, Chief Judge
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.
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 non-employee union organizers from its Bulk Mail Center in Atlanta, Georgia. Because the Board had a rational basis for its decision, we deny the petition for review.
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. Johnson, a Postal Service employee, joined Hardy and Grimes there. Upon discovering the three men attempting to organize MCOA drivers, a Postal Service supervisor, after consulting with a manager, instructed them to leave the Bulk Mail Center, which they did. The supervisor and the manager acted pursuant to the Postal Service's Southeast Area Office Policy. Jack Mitchell, the author of the Policy, testified 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 Service also had a general policy predating the Southeast Area Office Policy which prohibited solicitation for commercial 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 ... permitt[ing] other solicitation.... Without evidence that the [Postal Service] 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.
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 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).
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 submitted to the ALJ "contained no allegation that the USPS ...