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Appellate court clobbers labor board in union arrest case
FRANK J. SAIBERT
Law Bulletin columnist
Published: August 24, 2017
Disagreeing with a pro-union National Labor Relations Board decision as “more disingenuous than dispositive,” the U.S. Court of Appeals for the District of Columbia Circuit early this month sided with a big-box store in its dispute with the United Food and Commercial Workers Union where multiple union agents were arrested by local law enforcement for trespassing at the store.
The case is Fred Meyer Stores Inc. v. National Labor Relations Board, No. 15-1167 (D.C. Cir., Aug. 1, 2017). Fred Meyer Stores runs a store in Hillsboro, Ore., just outside Portland. The Hillsboro store employees were represented by the UFCW.
Fred Meyer and the UFCW had both written agreements and past practices limiting UFCW access to the Hillsboro employees during work time.
Nonemployee UFCW officials had to report to the store manager on store visits, could not bother store customers, could have only brief (i.e., two-minute) conversations on the store floor with workers and could not hand out flyers or other written materials to the employees in front of customers.
The union also, for many years, essentially had limited itself to two union representatives on any store visit.
In November 2008, while Fred Meyer and the UFCW were bargaining for a successor labor contract, the UFCW’s leadership changed to a more militant faction, advertising itself as a “fighting union.”
On Oct. 14, 2009, the new UFCW representatives got into a heated discussion with the on-duty store manager at Hillsboro.
The union representatives thereafter threatened to return to the store the next day with “reinforcements.”
Both sides girded for the anticipated showdown.
The UFCW even went so far as to designate ahead of time who on its staff would “take the arrest,” should that become necessary.
The outside union agitators showed up the next day, Oct. 15, not with the usual two organizers, but with eight people.
Most of the union agents failed or refused to check in with Fred Meyer management, as required by the parties’ written agreement.
Instead, they invaded the store and verbally provoked the various management employees who were on hand, arguing with them and calling them, among other things, “liar.”
Store security demanded that the union representatives vacate the building, which they unsurprisingly refused to do.
Fred Meyer management then summoned the local police, who instructed the union folks to leave.
The union representatives refused this instruction, with one of them holding up her hands to be cuffed.
Several union representatives ultimately were arrested.
The UFCW then went running to the NLRB, which subsequently held a hearing before an administrative law judge.
The ALJ found that Fred Meyer, in treating the union representatives as it had, interfered with employee rights and violated the National Labor Relations Act.
The pro-union NLRB affirmed.
Fred Meyer appealed the board’s decision to the D.C. Circuit, which in unusually sharp language reversed and remanded.
“[T]he board’s actions in this matter are more consistent with the role of an advocate than an adjudicator,” the court stated.
The court first noted that private employers like Fred Meyer generally have a right to bar non-employee labor organizers from its business properties and that the UFCW, to lawfully be on Fred Meyer’s property, had to abide by the parties’ agreements and past practices regarding access.
The UFCW organizers, by not first checking in with store management for the Oct. 15 store visit, forfeited their right to even be there, the court stated.
The D.C. Circuit also admonished the NLRB for finding that “the parties did not have a clearly defined practice with regard to the number of union agents permitted to be in a store at any one time.”
The ALJ made no such factual finding, the court wrote, and specifically stated in his opinion that he made no such finding.
The board’s mischaracterization, the court scolded, was “pernicious” because it was so central to the case.
Based on this and other board mischaracterizations of the evidence, the D.C. Circuit remanded the matter to the board “to determine whether the union representatives are entitled to the protection of the act.”
The D.C. Circuit also reversed outright the board’s conclusion that Fred Meyer management’s involvement in the arrests was unlawful.
From the court’s viewpoint, the arrests were caused primarily by the union representative’s failure or refusal to obey the directive by police to stand down, not anything the store managers did.
Indeed, according to the court, “the evidence demonstrates the union representatives’ own behavior led to their arrests.”
Board decisions like Fred Meyer Stores will likely be less frequent once the new administration’s NLRB members are installed.
Frank J. Saibert is a partner in the labor and employment practice at Nixon, Peabody LLP. He represents public- and private-sector employers nationwide in labor relations and employment matters. He is past president of the Chicago chapter of the National Human Resources Association and a former Lyons Township committeeman. He can be reached at fjsaibert@nixonpeabody.com.