Fred Meyer Stores, Inc. v. Nat'l Labor Relations Bd.

• Decision Date: 01 August 2017
• Docket Number: No. 15-1135,C/w 15-1167,15-1135
• Citation: 865 F.3d 630
• Parties: FRED MEYER STORES, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

865 F.3d 630

FRED MEYER STORES, INC., Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent

No. 15-1135

C/w 15-1167

United States Court of Appeals, District of Columbia Circuit.

Argued February 14, 2017

Decided August 1, 2017

Mitchell J. Cogen, Portland, OR argued the cause and filed the briefs for petitioner.

Eric Weitz, Attorney, National Labor Relations Board, Washington, DC argued the cause for respondent. With him on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney.

Before: Brown, Circuit Judge, and Sentelle and Randolph, Senior Circuit Judges.

Brown, Circuit Judge

Petitioner Fred Meyer Stores, Inc. ("Fred Meyer") operates big-box stores—selling both grocery and non-food goods—in the northwest United States. It operates several stores in the Portland, Oregon area, including the Fred Meyer Hillsboro Store (the "Store") at issue here. On October 15, 2009, an encounter between Fred Meyer employees and representatives of the United Food and Commercial Workers Union (the "Union")¹ escalated and resulted in the arrests of three individuals. Affirming the prior decision of an Administrative Law Judge ("ALJ"), the National Labor Relations Board ("Board" or "NLRB") held Fred Meyer had committed various unfair labor practices in its interaction with the Union.² Fred Meyer now petitions for review of the Board's decision.

I.

The Collective Bargaining Agreement ("Access Agreement") between the Union and Fred Meyer set the conditions upon which non-employee Union representatives may visit the Store. The relevant provision states:

It is the desire of both the Employer and the Union to avoid wherever possible the loss of working time by employees covered by this Agreement. Therefore, representatives of the Union when visiting the store or contacting employees on Union business during their working hours shall first contact the store manager or person in charge of the store. All contact will be handled so as to not interfere with service to customers nor unreasonably interrupt employees with the performance of their duties.

JA 578; see also JA 29 (ALJ Opinion misquoting the Access Agreement). The parties had also developed an agreed-upon practice, memorialized in a memorandum, for Union representative visits:

Business agents have the right to talk BRIEFLY with employees on the floor, to tell those employees they are in the store, to introduce themselves, and to conduct BRIEF conversations, as long as the employees are not unreasonably interrupted. Such conversations should not occur in the presence of customers.

Business Representatives have the right to distribute fliers to employees on the floor AS LONG AS IT IS DONE QUICKLY, THE EMPLOYEES ARE NOT URGED TO STOP WHAT THEY ARE DOING TO READ THE MATERIALS AT THAT TIME, AND FURTHER, THAT THE MATERIALS ARE NOT PASSED OUT IN THE PRESENCE OF CUSTOMERS.

Business agents have the right to distribute materials in the break room. Lengthy conversations and discussions should always take place in the break room....

See 2015 Board Opinion , 362 N.L.R.B. No. 82 at *1 n.3 (quoting the written procedures). Over the course of their twenty-year history, the parties had agreed conversations of up to two minutes may occur on the sales floor. While not discussed in the memorandum, the Union also limited itself to two Union representatives in the Store at any given time—often a single Union representative, and occasionally, an accompanying trainee. Where prior visitations had escalated into disputes, Fred Meyer called the police, and the Union representatives left of their own accord.

But then things changed. Bargaining for successor Union contracts began in July 2008,³ and in November of that year, the leadership of Local 555 shifted. The new Union President called in reinforcements from the International, and Jenny Reed ("Reed") arrived to energize the Union's efforts. During August and September of 2009, the two months immediately prior to the incident at issue here, representatives visited the Local 555 stores more frequently and twice arrived at Fred Meyer stores (but not the Hillsboro Store) with three or four representatives. By September 25, 2009, Local 555 leadership declared itself a "FIGHTING UNION" and promised it would do whatever was necessary to further its interests. JA 56 (ALJ Opinion), 767–71; see also JA 252–53.

On October 14, 2009, Store manager Gary Catalano ("Catalano") engaged in a heated discussion with Union representatives at the Store. The exchange ended with a threat from the Union representative to return the following day with reinforcements. See JA 34 (ALJ Opinion quoting Catalano's recollection of the Union representative's statement: "[W]ell what if I just bring in 15 or 20 more people tomorrow and we just do our thing tomorrow ...?"). Catalano discussed the interaction with his superior Cindy Thornton ("Thornton"), who generated a protocol to follow if multiple representatives descended upon the Store: (1) Catalano would reiterate the visitation practice; (2) Catalano would ask representatives to leave the Store; (3) Loss Prevention, the Store's security team, would ask the representatives to leave the Store; and (4) Catalano would telephone Thornton again and, with her permission, call the police. Catalano held a meeting with his managers, including Home Department Manager James Dostert ("Dostert"), to train them on the policy.

The Union also prepared for confrontation. Members of Local 555 and the International convened and devised a plan to send several representatives into the Store the following day. The Union anticipated its actions would prompt a response from Fred Meyer, and its members conducted a training session in order to "be able to deal" with events at the Store the next day. JA 35 (ALJ Opinion), 361–63. For example, they decided Reed would "take [the] arrest" if matters escalated. JA 35 (ALJ Opinion).

The showdown occurred on October 15, 2009. A team of eight individuals arrived at the Store around 9:30 a.m. The Union contingent included Reed and Joe Price from the International along with Brad Witt ("Witt"), Kevin Billman, Mike Marshall ("Marshall"), Kathy MacInnis ("MacInnis"), and Jeff Anderson from Local 555. Witt, an Oregon State Representative at the time, also asked his campaign manager, a local freelance photographer, to join them in hopes of "get [ting] a story." JA 36 (ALJ Opinion).⁴ The group carpooled to the site and entered the Store simultaneously, fanning out in pairs to different entrances. Only Reed and Witt went to the Customer Service Desk to check in. They also took the unusual step of asking to speak face-to-face with the Manager on Duty. Since Catalano was off that day, Dostert met with Reed and Witt.

Here, the stories diverge. The NLRB asserts Dostert told the two representatives "their contact with employees on the store floor would be limited to identification and introductions and that any additional communications would need to take place in the breakroom." 2015 Board Opinion , 362 N.L.R.B. No. 82 at *2. Fred Meyer, on the other hand, argues Dostert explained the Union representatives had a "right to walk the floor, engage with associates for a minute or two, hand out your card; anything lengthier than that needs to go to the break room." JA 472.

Thereafter, Reed held up a piece of paper and said she and Witt had a right under "federal law" to "talk to [employees] as long as [they] wanted to." JA 41 (ALJ Opinion). After further discussion, Reed told Dostert he was violating federal law, and he could be arrested. Dostert then called Thornton, who reiterated the long-standing policy—which had been re-confirmed the prior day—and instructed Dostert to again explain the Union representatives may conduct brief conversations on the sales floor and longer conversations would need to occur in the breakroom. The conversation between Dostert, Reed, and Witt continued, growing ever more heated, and Dostert attempted to move the discussion away from customers. During this period, Local 555 vice-president Shaun Barkeley ("Barkeley") phoned Thornton and rebuffed an offer from her to sit down and talk about the Union's concerns with the current policy, stating "you do what you have to do and I'll do what I have to do." JA 44 (ALJ Opinion quoting Thornton's recollection of Barkeley's response).

Reed then approached Store cashier Alicia England ("England") and abruptly handed her a piece of paper; England moved away. By then, Dostert had received a number of calls informing him that multiple Union representatives were present in the Store. He phoned Thornton a second time to relay the news; she again stated the policy and asked Dostert to repeat it once again to the Union representatives, informing them that if they did not comply, they would need to leave the Store. Reed and Witt again refused to comply or depart. At some point in this interaction, while still near England, Dostert began angrily disparaging the Union, stating among other things: union representatives are "jerks," unions are "outdated and ridiculous," and union dues are "ridiculous." JA 39–40 (ALJ Opinion), 42 (same), 75–79, 827–29.

Dostert subsequently called the Store's Loss Prevention Manager, Mike Kline ("Kline"), who explained the Store's trespass rules and asked Reed and Witt to leave. Shortly after Kline arrived, Dostert received a call; while Dostert was speaking on the phone, Witt got in Dostert's face and repeatedly yelled "liar!"⁵ JA 432, 483. After the call ended—and Kline had instructed Witt to back off—the other five Union representatives joined the group around Dostert. Following a phone conversation with Thornton, Dostert asked Kline to call the police.

Hillsboro Police Officers Daniel Mace ("Officer Mace") and Victor Kamenir ("Officer Kamenir") arrived around 10:10 a.m. After Dostert again asked Reed to leave the Store,...