Nonemployee union representatives who entered an employer’s store to meet with employees in contravention to the parties’ access agreement and who were arrested when they refused to leave were engaged in in protected activities, but only to the extent that they complied with the contractual access clause, the D.C. Circuit ruled, refusing to enforce a ruling by the NLRB that the employer acted unlawfully during the encounter. Finding that the union’s right to enter the store was limited by the parties’ access agreement and past practice, the D.C. Circuit concluded that the employer did not unlawfully have three union representatives arrested after they refused to leave its premises (Fred Meyer Stores, Inc. v. NLRB, August 1, 2017, Brown, J.).
Access agreement. The collective bargaining agreement between the union and employer set the conditions upon which nonemployee union representatives may visit the employer’s store. When contacting employees at the store during their working hours, the union representative was to first contact the store manager or person in charge of the store. The parties had also developed an agreed-upon practice for representative visits. Under that agreement, union business agents had the right to talk briefly with employees on the floor, to tell employees they were in the store, to introduce themselves, and to conduct brief conversations, as long as the employees were not unreasonably interrupted. Conversations were not to occur in the presence of customers. Business representatives also had the right to distribute flyers to employees on the floor, and distribute materials in the break room.
Over the course of their 20-year history, the parties agreed that conversations up to two minutes may occur on the sales floor. The union also limited itself to two representatives in the store at any given time. When prior visitations had escalated into disputes, the employer called police, and the representative left of their own accord.
Confrontation. However, things changed when the parties began bargaining on successor contracts in July 2008. In November, leadership shifted in the local, and the new union president called in reinforcements from the parent union. Union representatives began visiting the stores more frequently, with three or four representatives.
On October 14, 2009, a store manager engaged in a heated discussion with union representatives in the store. The exchange ended with a threat from the union representatives to return the following day with reinforcements. The store manager discussed the matter with his superior who developed a protocol to follow if multiple representatives visited the store, including reiterating the visitation practice, asking the representatives to leave the store, and call the police.
The showdown occurred the next day, when a team of eight individuals arrived at the store. The NLRB found that one of the store’s department managers told two union representatives to limit their contact with employees on the floor to identification and introductions, and any additional communications were to take place in the breakroom. However, according to the employer, the department manager explained the union representatives had a “right to walk the floor, engage with associates for a minute or two, hand out cards, and anything lengthier would need to go to the break room.
A union representative asserted that they had a right under “federal law” to “talk to employees as long as they wanted to.” The employer reiterated the parties’ longstanding practice. A union vice president rebuffed a management official’s offer to talk about union concerns with the current policy. Union representatives spread out and approached a number of working employees. Still, the union refused to comply with the policy or depart. At that point, the department manager became angry and began disparaging the union. He subsequently called security, but the confrontation continued. Ultimately, the police were called.
When the police arrived, they explained to the union representatives the Oregon trespass law. They were advised to leave or be taken into custody. Two union reps were arrested for refusing to leave. Thereafter, the others left the store. The union president arrived and he too was arrested after arguing with the police.
Policy change. The NLRB affirmed an administrative law judge’s finding that the employer had changed “long-standing and contractually-based practice” and committed unfair labor practices by limiting the union agents’ right to contact store employees, telling employees not to speak with union representatives, disparaging the union, threatening to have union reps arrested, and causing the arrest of three union representatives. The company was required to make the union representatives whole for any costs arising from their arrests and post a remedial notice.
Nonemployee representatives on company property. It is well-established that employers can generally prohibit labor organizing activities by nonemployee union representatives conducted on business property. Any right of the union representatives to enter the employer’s store must derive from the parties’ access agreement and past practice, not federal law. In order to establish a NLRA violation, the NLRB General Counsel had the burden to show the union representatives were in compliance with the access agreement.
The D.C. Circuit found that the record clearly reflected a violation of the access agreement. The union representatives entered the store without checking in as required by the agreement. Thus, the representatives had become trespassers before they were confronted by a department manager and long before anyone was arrested. At that time, the employer could lawfully expel them from its store. However, the court did not rely on that straightforward analysis to dispose of the case.
Inconsistencies. Rather, it found that inconsistencies in the Board’s opinion required remand of the matter to determine whether the union representatives lost the protection of the Act. Here, the appeals court found that the Board behaved in an arbitrary and capricious manner by failing to engage in reasoned decisionmaking. It concluded that the Board’s opinion evidenced a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence.
Most egregiously, the Board stated that the ALJ had found “the parties did not have a clearly defined practice with regard to the number of union agents permitted in a store at one time.” From this premise, the Board concluded the visitation policy did not limit the number of representatives that may visit a store at one time. The ALJ made no such finding, noted the appeals court. Next, the Board found that the department manager disregarded a representative’s attempt to show him a copy of the access agreement. However, the ALJ expressly declined to determine precisely what occurred at each step of the discussion and leading up to the arrests. Thus, the Board misrepresented several findings of the ALJ and failed to respond to key points raised by the dissent. Consequently, the court declined to defer to a Board that had not adequately considered the issues raised by the parties.
Arrests. The court next considered the arrests of the three union representatives. Here, it concluded that since the arrests were caused primarily by the representatives’ refusal to obey the orders of the police officers, it reversed the Board’s findings on this matter. The intervening illegal acts of the representatives broke the chain of causation between the department manager’s actions in calling the police and the arrests. Accordingly, the employer’s petition for review was granted, and the Board’s cross application for enforcement was denied.
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