Fred Meyer Stores, Inc. v. National Labor Relations Board
2017 U.S. App. LEXIS 13910
| D.C. Cir. | 2017Background
- Fred Meyer and the United Food and Commercial Workers operated under an Access Agreement and a long-standing practice allowing brief (≈2-minute) floor contacts by up to two union representatives and distribution of materials subject to restrictions (e.g., not in presence of customers); check‑in with management was required.
- On October 15, 2009, eight union-affiliated individuals entered a Hillsboro Fred Meyer without all checking in; a heated exchange with manager James Dostert ensued after two reps asked to speak with management and disputed the store’s visitation limitations.
- Store management reiterated the contractual visitation rule, summoned Loss Prevention, and called police after the union reps refused to comply; Officers arrested Reed, Marshall, and Local president Clay after they refused police orders to leave or continued to argue.
- An ALJ found disputed factual accounts and issued a decision; the NLRB reversed and found Fred Meyer committed unfair labor practices by limiting access, ordering employees not to speak with reps, disparaging the union, threatening arrests, and causing the arrests; it ordered make-whole relief for the arrested reps and remedial posting.
- The D.C. Circuit held the Board’s opinion was arbitrary in places and remanded for reconsideration whether the union reps retained NLRA protection (noting they failed to check in), reversed the Board’s findings as to the arrests (concluding the arrests resulted from the reps’ refusal to obey police), and found Dostert’s anti‑union comments—though intemperate—did not, as a matter of law, have a coercive tendency sufficient to establish an §8(a)(1) violation.
Issues
| Issue | Plaintiff's Argument (Fred Meyer) | Defendant's Argument (Board/Union) | Held |
|---|---|---|---|
| Did union reps comply with Access Agreement (check‑in requirement) and thus retain NLRA protection? | Reps breached the contract by not checking in and so were trespassers; Fred Meyer could lawfully expel/call police. | Rights to access derived from Access Agreement and past practice; reps acted within permitted conduct. | Remanded to Board to decide in first instance whether failure to check in deprived reps of Act protection (Court faulted Board for failing to address this dispositive omission). |
| Did the Board engage in reasoned decisionmaking in finding no limit on number of reps and other factual determinations? | Board mischaracterized ALJ findings, ignored record, and acted arbitrarily. | Board defended its reading of the record and conclusions. | Court held Board’s decision was not adequately reasoned on key points and remanded for further consideration. |
| Was Fred Meyer liable for unfair labor practices based on the arrests it caused? | Arrests were caused by union reps’ refusal to obey police; intervening illegal conduct broke causation; Fred Meyer’s calling police was lawful. | Employer’s decision to call police and its prior conduct foreseeably interfered with Section 7 rights, making it liable. | Court reversed Board on arrests: evidence showed arrests resulted from reps’ refusal to comply with police orders, breaking causation from employer’s conduct. |
| Did Dostert’s anti‑union statements to employees violate §8(a)(1)? | Statements were reactionary, noncoercive, and did not reasonably tend to interfere with §7 rights. | Statements, coupled with threats to remove reps, unlawfully coerced employees. | Court held statements, while intemperate, lacked the requisite coercive tendency as a matter of law and thus did not establish §8(a)(1) liability. |
Key Cases Cited
- Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) (nonemployee organizers have no access right to private property absent special circumstances)
- Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (1988) (court must draw all inferences that the evidence fairly demands when reviewing Board factfindings)
- Motor Vehicle Mfgs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (administrative agencies must engage in reasoned decisionmaking; review requires rational connection between facts and action)
- Monroe v. Pape, 365 U.S. 167 (1961) (federal statutes read against background of common‑law tort concepts; actors responsible for natural consequences of their actions)
- Titanium Metals Corp. v. NLRB, 392 F.3d 439 (D.C. Cir. 2004) (discussing purposes of NLRA and review standards for NLRB unfair labor practice determinations)
- NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) (Supreme Court decision affecting Board composition and necessitating Board rehearing in many cases)