Meijer, Inc. v. N.L.R.B.

Decision Date21 August 2006
Docket NumberNo. 05-1951-05-2025.,05-1951-05-2025.
Citation463 F.3d 534
PartiesMEIJER, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
CourtU.S. Court of Appeals — Sixth Circuit

Cynthia W. Warren, Meijer, Incorporated, Legal Department, Grand Rapids, Michigan, for Petitioner. Philip Hostak, National Labor Relations Board, Appellate Court Branch, Washington, D.C., for Respondent.

ON BRIEF:

Cynthia W. Warren, Jeffrey Scott Rueble, Meijer, Incorporated, Legal Department, Grand Rapids, Michigan, for Petitioner. Philip Hostak, Aileen A. Armstrong, Howard E. Perlstein, National Labor Relations Board, Appellate Court Branch, Washington, D.C., for Respondent.

Before: BOGGS, Chief Judge; and KEITH and SUTTON, Circuit Judges.

OPINION

BOGGS, Chief Judge.

Meijer, Inc. petitions for review of an order by the National Labor Relations Board (NLRB or the Board) that it cease and desist from enforcing its policies against union solicitation by employees, found by the Board to constitute unfair labor practices. The Board petitions for enforcement of the order. We grant in part Meijer's petition for review and reverse a portion of the Board's opinion. We also grant in part the Board's cross-application for enforcement and affirm its final order, vacating only that portion of the order that sanctions Meijer for punishing an employee for conducting union solicitation when it had no knowledge of the protected nature of the conduct.

I

Meijer operates "hypermarkets." Each of their single stores includes a supermarket, a general merchandise store, a pharmacy, and a restaurant, open twenty-four hours a day, seven days a week. In 2003, Robert Caldwell was a warehouse clerk for Meijer at its Tipp City, Ohio location. That facility includes a hypermarket in addition to warehouses supporting Meijer's other locations. It has several parking areas, one near the retail center (the retail lot), primarily for customers and retail employees, and another, gated, lot for employees of the non-retail distribution center (the distribution lot). The retail lot occupies about ten acres and has approximately 1000 parking spaces. Clerks from the retail operation collect shopping carts from the retail lot, do some landscaping work, and shovel snow in limited areas. Occasionally, outside vendors or organizations, such as NASCAR or Coca-Cola, use the retail lot for promotional events. Meijer also uses some of the retail lot to sell seasonal or bulky products like lawnmowers and above-ground pools.

Caldwell drove a "standup reach fork" in the general merchandise warehouse. Workers at the facility, as a condition of employment, are members of the United Food and Commercial Workers Local 1099 (the Union). Caldwell was unsatisfied with his union representation1 and endeavored to replace the current union with a new one, an organization he called "Real Union." To promote this effort, Caldwell talked to his coworkers and distributed literature urging that they join.

On October 17, 2003, Caldwell finished his shift early and parked in the distribution lot in time for a shift change. As employees of the warehouses arrived and departed, Caldwell distributed membership cards for Real Union. This activity was interrupted when Chris Cullen, a Union steward in the warehouse, became agitated with Caldwell, complaining loudly and with vulgarity that the employees were already represented by a labor union. Cullen told Caldwell to leave because he "didn't belong there." When he would not, Cullen said, "I'll take care of this," and placed a call to Jack Evans of Meijer security on his mobile phone. Cullen told Evans that someone was bothering people in the distribution lot. By the time Evans arrived, Caldwell had started to leave, stopping only to distribute a Real Union card to employee Lisa Patton on his way out. This last stop was impromptu, and therefore Caldwell's truck was not parked in a marked space.

When Evans arrived he did not see any disturbance. However, he noticed Caldwell's truck, recognized Caldwell, and approached him. Evans asked whether he was on the clock and what he was doing. Caldwell testified that he told Evans that he was soliciting for Real Union, but the Administrative Law Judge (ALJ) credited Evans's conflicting testimony that Caldwell never answered his question concerning "what he was doing." Evans told Caldwell to leave the parking lot. Caldwell said "We'll see about that," and left. It was only after Caldwell had left that Evans asked Patton to see the literature she had received from Caldwell and learned that he had been soliciting for Real Union.

On October 20, Evans reported the incident to Matthew Jamrog, a Meijer executive with labor relations responsibility. As a result of that conversation, Evans distributed a memo to the security staff informing them that union solicitation was allowed during nonworktime in nonwork areas. This definition included Caldwell's activity in the distribution lot. Jamrog also sent a letter that day to Caldwell informing him that, according to published company policy, the retail lot was considered to be a working area, where he could not solicit for Real Union. According to Jamrog: "The company considers our store parking lots to be a `work area' since we have team members that work in this outside area of the store." Meijer, Inc., Nos. 9-CA-40631; 9-CA-40778, 2005 WL 1551221, 344 NLRB No. 115, slip op. at 5 (June 29, 2005) [hereinafter Meijer]. Soon after receiving the October 20 letter, Caldwell asked Evans to clarify the company's policy. He was referred to Mike Sullivan, Meijer's building manager. Sullivan explained to Caldwell that he could distribute literature in the distribution lot during nonworktime to nonworking employees, but that he could not do the same in the retail lot.

Meijer's company policy on solicitation is included in a "team member handbook," a publication distributed to all employees. It states that no solicitation is allowed on worktime and that no solicitation is allowed in any work area. In contravention to this policy, and pursuant to its collective bargaining agreement with the Union, Meijer does allow solicitation on worktime to raise money for the Union's political fund—the Active Ballot Club.

On October 21, 2003, and again on January 5, 2004, Caldwell filed charges against Meijer with the NLRB. Caldwell alleged that Meijer had prevented him from distributing union literature and that it maintained a rule prohibiting distribution in its retail lot. This interference, alleged Caldwell, violated his rights under the National Labor Relations Act. 29 U.S.C. §§ 151-169 [hereinafter the Act]. The case was tried before the ALJ on May 24, 2004. The court heard testimony from Caldwell, Evans, Patton, Sullivan, Jamrog, and a Meijer building manager, Ken Barclay. A three-hour videotape of activity in the retail lot was also submitted.

In an August 31, 2004, opinion, the ALJ held that Meijer had not violated the Act when it stopped Caldwell from soliciting in the distribution lot because the NLRB's General Counsel had "failed to meet his burden of proving that Evans knew Caldwell was engaged in concerted protected activity when he asked him to leave the parking lot on October 17." Meijer, at 8 (emphasis added). Alternately, the ALJ held that even if Evans's conduct had violated the Act, Jamrog's letter of October 20 repudiated that illegal conduct because it "assured Caldwell that, in the future, he would be permitted to distribute literature in the distribution facility parking lot." Ibid.

After viewing a videotape that depicted two and one-half hours of activity in the retail lot, the ALJ found that work in the retail lot was "periodic" or "sporadic," and that the functions performed in the retail lot were "incidental" to Meijer's core business, "selling merchandise inside its stores." Id. at 6. Accordingly, the ALJ held that Meijer's policy of prohibiting union solicitation in its retail lot was an unfair labor practice. Additionally, the ALJ held that Meijer had engaged in an unfair labor practice by allowing fundraising on working time for the Union's Active Ballot Club, "prohibiting employees from soliciting during working time, while simultaneously permitting employees to engage in a specific type of solicitation on behalf of the Union during working time." Id. at 9. The ALJ ordered that Meijer cease and desist from prohibiting union activity by off-duty employees in its retail lot and promulgating an inconsistent rule of solicitation as evidenced by the Active Ballot Club. Id. at 9-10.

The Board's General Counsel and Meijer both filed exceptions to the decision of the ALJ and the case was considered by a panel of three Board members who issued their decision and order on June 29, 2005. Id. at 1. The Board reversed two of the ALJ's holdings. First, it found that the ALJ "erred in imposing a burden upon the General Counsel to show that Evans had knowledge of Caldwell's protected activity when he directed Caldwell to leave." Id. at 2. The Board held that the correct test was an objective one: "whether the Respondent's conduct would reasonably tend to interfere with, threaten, or coerce employees in the exercise of their [] rights." Ibid. Second, the Board held that Jamrog's October 20 letter to Caldwell did not repudiate any illegal conduct because it "contained an unlawful prohibition on solicitation and distribution" in the retail lot. Ibid. The Board held that, since there was insufficient evidence that the retail lot was a work area, the prohibition contained in the letter constituted independent unlawful conduct and could not serve as a repudiation. Ibid. The Board upheld the other portions of the ALJ's decision and issued an order consistent with its findings. Id. at 3.

II

The Board has jurisdiction "to prevent any person from engaging in any unfair labor...

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