Fred Meyer Stores, Inc. v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 14, 2017 Decided August 1, 2017
No. 15-1135
FRED MEYER STORES, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 15-1167
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Mitchell J. Cogen argued the cause and filed the briefs for
petitioner.
Eric Weitz, Attorney, National Labor Relations Board,
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.
2
Before: BROWN, Circuit Judge, and SENTELLE and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by BROWN, Circuit Judge.
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.
1
The Union, as relevant to this case, is comprised of the “Local 555,”
the smallest entity covering the Store, and its “International,” a larger
division of the same Union.
2
The ALJ issued his decision in this matter on December 8, 2010.
Fred Meyer Stores, No. 36-CA-10555, 2010 WL 5101099 (Dec. 8,
2010). The Board issued its initial Decision and Order in this matter
on December 13, 2012. Fred Meyer Stores, Inc., 359 N.L.R.B. 316
(2012) (“2012 Board Opinion”). The 2012 Order was set aside after
the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct.
2550 (2014). On April 30, 2015, a properly-constituted Board panel
considered the record de novo and issued the Decision and Order
now before the Court. Fred Meyer Stores, Inc., 362 N.L.R.B. No. 82
(2015) (“2015 Board Opinion”).
3
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
4
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.
3
New contracts were finalized in 2010.
5
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
6
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
4
There is some dispute regarding whether the freelance
photographer—the eighth individual—is properly considered a
member of the Union team. We do not decide this issue here, but
both the ALJ and Board consistently referred to “eight” Union
representatives. See, e.g., JA 35, 50, 161, 194 n.7. We will follow
this convention here.
7
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—
5
The ALJ did not discuss this point. Nonetheless, in the absence of
an adverse credibility finding with regard to the relevant testimony,
the fair inferences that can be drawn from it must be made.
8
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, Officer
Mace explained to Reed that, under Oregon trespass law, she
was obliged to leave and would be taken into custody if she
refused. Reed refused and was arrested. The other
representatives in the Store obeyed the instruction to leave.
Marshall and MacInnis then walked through the parking lot to
the carpool vehicles, but they were unable to unlock the cars
and waited in the parking lot for the drivers. Sergeant Matthew
Shannon (“Sergeant Shannon”), who had arrived on the scene,
told Marshall to leave the property. Thereafter, Marshall
became agitated and “tried to engage the [S]ergeant.” JA 308.
The scene became “a little hairy” and got “a little out of hand,”
so backup units were called. JA 502–03. After offering
Marshall several opportunities to leave the premises, Officer
Kamenir placed him under arrest. MacInnis was not arrested.
Finally, Local 555 President Dan Clay (“Clay”) arrived at
the scene, identified himself to Sergeant Shannon, and told the
Sergeant to “look at the Federal law before he arrest[ed]
people.” JA 46 (ALJ Opinion quoting Clay’s testimony). Clay
proceeded to inform Sergeant Shannon that the arrests of Reed
and Marshall were illegal, at which point Sargent Shannon told
him “another word and you’re done.” JA 47 (ALJ Opinion
quoting Clay’s testimony). Clay continued to argue and
Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 378
(1998) (holding that the Board “is not free to prescribe what
inferences from the evidence it will accept and reject, but must draw
all those inferences that the evidence fairly demands”).
9
refused to leave, at which point Sergeant Shannon instructed
Officer Kamenir to arrest Clay.
The NLRB affirmed the ALJ’s finding that Fred Meyer
had changed “longstanding and contractually-based practice”
and committed unfair labor practices “by limiting the union
agents’ right to contact store employees,” “telling employees
not to speak to the union representatives, disparaging the Union
in the presence of employees, threatening to have union
representatives arrested, and causing the arrest of three union
representatives.” 2015 Board Opinion, 362 N.L.R.B. No. 82 at
*1, *3. The Board’s Order requires the Company to make
Reed, Marshall, and Clay whole for any costs arising from their
arrests and post a remedial notice at its union-represented
stores covered by the Access Agreement. A dissenter, Member
Johnson, disagreed with the Board’s findings regarding the
representatives’ ability to speak with Union employees on the
Store floor; the events leading up to the arrests of Reed,
Marshall, and Clay; and certain statements by manager Dostert
(excluding the order to a unit employee not to speak with the
Union representatives).
II.
“Judicial review of NLRB determinations in unfair labor
practice cases is generally limited, but not so deferential that
the court will merely act as a rubber stamp for the Board’s
conclusions.” Titanium Metals Corp. v. NLRB, 392 F.3d 439,
445 (D.C. Cir. 2004). We will affirm an order of the Board if
its findings with respect to questions of fact are supported by
substantial evidence on the record considered as a whole. See
29 U.S.C. § 160(e). “Substantial evidence” is “less than a
preponderance of the evidence,” albeit “more than a scintilla.”
Multimax, Inc. v. FAA, 231 F.3d 882, 887 (D.C. Cir. 2000).
More specifically, it “requires not the degree of evidence which
10
satisfies the court that the requisite fact exists, but merely the
degree which could satisfy a reasonable factfinder.” Allentown
Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 377 (1998).
The question before the Court, therefore, “is not whether [Fred
Meyer’s] view of the facts supports its version of what
happened, but rather whether the Board’s interpretation of the
facts is reasonably defensible” and one which a reasonable
factfinder would support. Inova Health Sys. v. NLRB, 795 F.3d
68, 81 (D.C. Cir. 2015).
A.
It is well-established that employers can generally prohibit
labor organization activities by nonemployee union
representatives conducted on business property. See
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). In fact,
“[N]onemployee organizers cannot claim even a limited right
of access to a nonconsenting employer’s property until after the
requisite need for access to the employer’s property has been
shown.” Id. at 534. Accordingly, any right of the Union
representatives to enter the Store on October 15 must derive
from the parties’ Access Agreement and past practice, not
federal law. Put another way, nonemployee union agents on an
employer’s premises for the purpose of communicating with
represented employees are engaged in activities protected by
Section 7 of the National Labor Relations Act, 49 Stat. 452, as
amended, 29 U.S.C. § 157 (“NLRA” or the “Act”), only to the
extent that they comply with the parties’ contractual access
clause. Even the Board acknowledges this simple proposition.
It begins its analysis, as it must, with the text of the parties’
Access Agreement and the nature of their past practice; from
there, it analyzes the parties’ actions. 2015 Board Opinion, 362
N.L.R.B. No. 82 at*1–*2. Moreover, in order to establish a
NLRA violation, the General Counsel of the NLRB carries the
burden to show the Union representatives were in compliance
11
with the parties’ Access Agreement. See NLRB v. Great Scot,
Inc., 39 F.3d 678, 684 (6th Cir. 1994) (finding reversible error
where the burden was incorrectly placed on the employer).
Here, the record—if not the ALJ decision or the opinions
of the Board—clearly reflects a violation of the Access
Agreement. All parties agree that the Union representatives
entered the Store on October 15 without checking in as required
by the parties’ contract. Even the ALJ acknowledged this
undisputed fact should be dispositive. See JA 49 n.16 (ALJ
Opinion stating, “The test of any misconduct herein therefore
is an objective one as opposed to subjective. Thus the test is
not what misconduct the Respondent’s deciding agents
believed occurred by the union agents at the store at relevant
times but rather what misconduct did in fact occur.”). As of
the moment the Union representatives walked through the
doors to the Store without notifying management of their
presence—at least 5 minutes before Dostert first opened his
mouth and long before anyone was arrested—they had become
trespassers Fred Meyer could lawfully expel from the Store.
Cf. Times Publ’g Co., 72 N.L.R.B. 676, 683 (1947)
(“[A]lthough the Act imposes no affirmative duty to bargain
upon labor organizations, a union’s refusal to bargain in good
faith may remove the possibility of negotiation and thus
preclude the existence of a situation in which the employer’s
own good faith can be tested. If it cannot be tested, its absence
can hardly be found.”).
Inexplicably, however, counsel for Fred Meyer has
deprived us of this straightforward disposition by failing to
present to the Board argument regarding the Union
representatives’ failure to check in. See 29 U.S.C. § 160(e).
Counsel’s omission diverts us onto a long and lumbering road.
Nevertheless, as discussed below, inconsistencies in the
Board’s opinion require us to remand this matter to the Board
12
to consider whether the union representatives lost the
protection of the Act.
B.
Our review of NLRB decisions is “limited,” Wayneview
Care Ctr. v. NLRB, 664 F.3d 341, 348 (D.C. Cir. 2011), and “a
decision of the NLRB will be overturned only if the Board’s
factual findings are not supported by substantial evidence, or
the Board acted arbitrarily or otherwise erred in applying
established law to the facts of the case,” Pirlott v. NLRB, 522
F.3d 423, 432 (D.C. Cir. 2008). Here, the Board behaved in an
arbitrary and capricious manner by failing to engage in
reasoned decisionmaking. In assessing the Board’s decision,
we must ensure it “examine[d] the relevant data and
articulate[d] a satisfactory explanation for its action including
a rational connection between the facts found and the choice
made. In reviewing that explanation, we must consider
whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of
judgment.” Motor Vehicle Mfgs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). The Board’s decision
is arbitrary if it “entirely fail[s] to consider an important aspect
of the problem” or “offer[s] an explanation for its decision that
runs counter to the evidence before the agency.” Id.
Accordingly, our deferential standard of review applies only
where “the process by which [the Board] reaches [a] result” is
“logical and rational”—in other words, the Agency has
engaged in “reasoned decisionmaking.” Allentown Mack, 522
U.S. at 374.
Having carefully examined both the Board’s findings and
its reasoning, we conclude the Board’s opinion is more
disingenuous than dispositive; it evidences a complete failure
to reasonably reflect upon the information contained in the
13
record and grapple with contrary evidence—disregarding
entirely the need for reasoned decisionmaking. See Haw.
Dredging Constr. Co. v. NLRB, 857 F.3d 877, 881–82 (D.C.
Cir. 2017). The Board totally ignores facts in the record and
misconstrues the findings of the ALJ. See Reno Hilton Resorts
v. NLRB, 196 F.3d 1275, 1282 (D.C. Cir. 1999) (“The court
must take account of anything in the record that fairly detracts
from the weight of the evidence supporting the Board’s
conclusion.”). Even clear statements by the dissent pointing
out the inconsistencies did not dissuade the Board’s majority.
See Haw. Dredging, 857 F.3d at 881; see also Am. Gas Ass’n
v. FERC, 593 F.3d 14, 20 (D.C. Cir. 2010) (“While FERC is
not required to agree with arguments raised by a dissenting
Commissioner, it must, at a minimum, acknowledge and
consider them.”). In a concession to brevity, we examine only
two particularly outrageous instances here.
First, and most egregiously, the Board stated the ALJ had
found “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.” 2015 Board Opinion, 362 N.L.R.B. No. 82
at *1. From this premise, the Board concluded “[t]he visitation
policy does not limit the number of representatives that may
visit a store at one time.” Id. at *3. But the ALJ made no such
finding on this central issue. Instead, he stated:
I have made no findings respecting either the
reasonableness of having eight visiting Union agents
in a store at one time under the [relevant] contract
language . . . or whether or not such actions were, as
of October 15, 2009, inconsistent with past practice. I
find that I simply do not need to because the question
is irrelevant to the resolution of the complaint
allegations.
14
JA 56 (ALJ Opinion) (emphasis added). The Board’s
mischaracterization is all the more pernicious because it relied
upon its assertion of the ALJ’s “finding” to resolve a central,
disputed issue in the case: whether or not the Union
representatives violated the Access Agreement and lost
protection under the NLRA. 6 The Board’s tone deafness—
even after the dissent drew attention to the error—is the
antithesis of “reasoned decisionmaking.”
Second, the Board asserted, without citation, “Reed
disagreed with Dostert’s instructions” directing her to conduct
conversations regarding the petition in the breakroom, “and she
offered to show him a copy of the parties’ contractual visitation
policy. Dostert declined to read or consider the policy.” 2015
Board Opinion, 362 N.L.R.B. No. 82 at *2. No such finding
of fact pertaining to the pivotal exchange appears in the ALJ’s
opinion. To the contrary, the ALJ acknowledged many of the
events taking place when Witt and Reed “checked-in” with
Dostert were the subject of intense debate. And while the ALJ
spent substantial time discussing the initial words exchanged
between Reed, Witt, and Dostert and the proceedings leading
up to the arrests, he expressly declined to determine precisely
what occurred at each step of the heated discussion that
continued in the interim. JA 51 (ALJ Opinion noting conduct
during that conversation was “in dispute”). Specifically, he
stated,
6
We note the ALJ’s opinion is a bit confused on this issue, also
stating “[t]here is no doubt that union practice typically involved one
agent at a time, with two agents occasionally.” JA 31 (ALJ Opinion).
Regardless, the ALJ certainly did not find “no[] limit” on the number
of Union representatives simultaneously visiting the Store, as the
Board now claims. See 2015 Board Opinion, 362 N.L.R.B. No. 82
at *3.
15
The running conversation of the three —
Dostert/Reed/Witt, as I chose to label it, was lengthy,
moved several times within the store and . . . involved
others. I do not find that everything that Dostert
testified he or others stated in that conversation should
be discredited or that Witt or Reed was complete or
perfect in his or her testimony.
JA 55 (ALJ Opinion). The Board’s assertion, a statement that
goes to the heart of the disputed issues in the case, is therefore
the product of unmoored supposition rather than reasoned
decisionmaking.
In short, the Board—purposefully or absentmindedly—
misrepresented several of the ALJ’s findings and failed to
respond to key points raised by the dissent. We cannot defer to
a Board that has not adequately considered the issues raised by
the parties; accordingly, we remand for the Board to determine
whether the Union representatives are entitled to the protection
of the Act.
III.
The Court next considers the arrests of Reed, Marshall,
and Clay. Since the arrests were caused primarily by the Union
representatives’ refusal to obey the orders of police officers, we
reverse the Board’s findings on this matter.
The NLRA was “designed to protect both individual and
collective rights, and ha[s] as [its] paramount goal the
promotion of labor peace through the collective efforts of labor
and management.” Titanium Metals Corp. v. NLRB, 392 F.3d
439, 447 (D.C. Cir. 2004). Consistent with this purpose, once
Reed and Witt believed Dostert’s original articulation of the
visitation policy narrowed their ability to speak with Store
employees, they had two options: (1) briefly protest,
16
explaining what they believed the correct policy permitted or
(2) grieve the matter through formal channels. Their right to
remain in the Store, therefore, endured for only a few minutes
after they began speaking with Dostert. And it evaporated
completely once Reed and Witt continued to engage in a loud
and heated discussion several minutes later, even after
Thornton’s (indisputably correct) view of the policy had been
discussed.
It is axiomatic that an employer, even an employer running
a union shop, may generally avail itself of the assistance of law
enforcement and press trespassing charges against those
impermissibly occupying its property following a direction to
leave. Baptist Memorial Hosp., 229 N.L.R.B. 45, 46 (1977)
(finding employer liability only where the arrest “stemmed
solely from [the employer’s] persistent effort to maintain and
enforce its unlawful policies and to thwart the protected
organizational activities of its employees”).
The Board’s brief correctly points out that Dostert had
summoned the police, informed the police that he wanted the
Union representatives removed from the premises, and looked
on without intervening as the police arrested all three Union
representatives for criminal trespass. In the words of the ALJ
Opinion, the “causation [was] linear.” JA 58. But, as the Board
has held, a violation occurs only where an employer “engage[s]
in conduct that has the intended and foreseeable consequence
of interfering with employee Section 7 rights.” Wild Oats
Mkts., Inc., 336 N.L.R.B. 179, 181 (2001); see also Baptist
Memorial Hosp., 229 N.L.R.B. at 46 (holding an employer
liable where an arrest “stemmed solely from the [employer’s]
persistent effort to maintain and enforce its unlawful policies
and to thwart the protected organizational activities of its
employees”). Indeed, this policy is consistent with the intent
of the Act; the NLRA, like all federal statutes, “should be read
17
against the background of tort liability that makes a man
responsible for the natural consequences of his actions.”
Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled on other
grounds, Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 664
(1978).
Here, the intervening illegal acts of Reed, Marshall, and
Clay—each refusing to obey an order issued by a police
officer—break the chain of causation between Dostert’s
actions and the arrests. On all prior occasions, Union
representatives had left the Store when disputes arose—either
on their own or after encouragement by a police officer. On
October 15, 2009, however, the Union representatives departed
from their prior practice and escalated their interactions with
police officers. Neither the Board nor the ALJ focused on this
exchange. Instead, they held—without further analysis—that
Dostert’s violation of the Act created a duty to prevent the
Officers from arresting the Union representatives.
Nonetheless, the record covers extensively the events that
transpired once the Officers arrived. See LCF, Inc. v. NLRB,
129 F.3d 1276, 1281 (D.C. Cir. 1997) (“[T]his court’s analysis
considers not only the evidence supporting the Board’s
decision but also whatever in the record fairly detracts from its
weight.”). Viewed through the proper legal lens, the evidence
demonstrates the Union representatives’ own behavior led to
their arrests.
The testimony of the Officers present at the Store clearly
indicated the Union representatives were arrested because they
“refused to comply with police instructions.” JA 522. 7 Officer
7
The record indicates the scene at the Store was anything but calm.
By the time Officer Mace’s superior, Sergeant Shannon, joined him
on the scene, the confrontation had escalated to the point that
Sergeant Shannon “call[ed] for code 3 cover,” which Officer Mace
described as a call for all on-duty police officers to rush to the scene
18
Mace testified that if Reed had “followed [his] instruction” to
leave, he “would have had no reason to” arrest her. JA 500.
Instead, “she just stuck her hands out” to be handcuffed and, in
Officer Mace’s words: “[W]hat am I going to do at that point?”
JA 499. Marshall and Clay had argued with the police officers
and “didn’t listen” to the Officers’ commands. In fact,
Marshall and Clay admit they were warned that if they did not
leave they would be arrested. JA 309 (Marshall testimony
recalling the police said “you need to leave, you need to leave.
I said, sergeant, can I please speak with you? He was
continuing to say, you need to leave.”); 338 (Clay testimony
recalling “[t]he officer turned back and said [I] need[ed] to
leave . . . he basically said no more discussion, or else I was
going to be arrested”). After several failed attempts to
encourage the men to leave the scene, the officers arrested
them. Under these circumstances—where the individuals
arrested had broken with prior practice and then failed to obey
the Officers’ commands despite repeated opportunities to
comply and avoid arrest—we can hardly say the arrests
amounted to a violation on the part of Fred Meyer. See
generally Borquez v. City of Tucson, 475 F. App’x 663, 665
(9th Cir. 2012) (“Considering that Borquez approached an
officer leading an arrestee to a police vehicle, verbally
challenged the officer’s actions, and grabbed the arm of the
officer, we conclude that a reasonable officer in Pacheco’s
position could have believed that probable cause existed to
arrest Borquez for interfering in governmental operations
. . . .”). 8
with “lights and sirens.” JA 502, 511. He observed “[t]he whole city
showed up, officer-wise” and explained police officers “don’t make
[code 3 cover] calls lightly” due to the risk that officers rushing to
the scene could injure citizens in their haste. JA 511–12.
8
Fred Meyer also argues the First Amendment protects its decision
to call the police and immunizes the Store for the resulting arrests.
19
Under the circumstances, we find Fred Meyer’s actions did
not constitute a NLRA violation, and we reverse the Board’s
conclusions regarding the arrests. See Skyline Distributors v.
NLRB, 99 F.3d 403, 410 (D.C. Cir. 1996) (examining the
record and reversing in part despite finding the Board’s opinion
“so lacking in evidentiary support and reasoned
decisionmaking that it seems whimsical”).
IV.
Finally, the Court considers the anti-union statements
allegedly uttered by Dostert near employee England. An
employer violates Section 8(a)(1) of the Act if he makes
statements with a “reasonable tendency” to “interfere with,
restrain, or coerce” an employee’s exercise of his statutory
rights. Tasty Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C.
Cir. 2001); 29 U.S.C. § 158(a)(1). Therefore, an employer’s
statements “must be viewed in context and not in isolation to
determine if they [had] the reasonable tendency proscribed by
Section 8(a)(1).” Turtle Bay Resorts, 353 N.L.R.B. 1242, 1278
(2009). “It is well settled that the Act countenances a
significant degree of vituperative speech in the heat of labor
relations. Indeed, words of disparagement alone concerning a
See United Mine Workers v. Pennington, 404 U.S. 508 (1972); E.
R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S.
127 (1961). Unfortunately, this point was not addressed before the
Board, and the Court is jurisdictionally barred from entertaining it
absent “extraordinary circumstances.” 29 U.S.C. § 160(e); Alden
Leeds, 812 F.3d at 166–68. In light of the Court’s disposition of this
matter, we do not reach the question whether Fred Meyer forfeited
its First Amendment claim pertaining to the arrests.
20
union or its officials are insufficient for finding a violation of
Section 8(a)(1).” Id. 9
All parties admit that immediately after informing England
that she could not speak with the Union representative, Dostert
stated union representatives are “jerks;” unions are “outdated
and ridiculous;” union dues are “ridiculous;” employees “did
not need a union;” the Union stole money from its members;
and he did not believe in unions. JA 26 (ALJ Decision), 37
(same); 2015 Board Opinion, 362 N.L.R.B. No. 82 at *2.
According to Witt’s testimony, Dostert later said “he had his
boss’[s] backing and that the union reps were going to be
removed from the store.” JA 378. Even assuming employee
England heard these statements—a matter the parties now
dispute—Dostert’s anti-union comments and threats to remove
non-employee Union representatives were not sufficiently
coercive to establish a violation of the Act as a matter of law.
These statements, while no doubt intemperate and ill-
advised, do not constitute the type of threat required to render
an employee’s speech impermissibly coercive. Indeed,
Dostert’s outburst seemed to have been a response to
considerable provocation: Witt interrupting his phone call by
calling him a liar; Reed ignoring his instruction and insisting
there could be no restriction on the length of her conversations
with employees; and Dostert receiving multiple calls reporting
that Union representatives who had not checked in were
contacting employees in violation of the Access Agreement.
Under the circumstances, a reasonable onlooker would
interpret Dostert’s statements as an expression of frustration
9
Because we conclude that Dostert’s statements did not have a
“reasonable tendency” to “coerce,” 29 U.S.C. § 158(a)(1), we do not
need to determine whether they are protected under 29 U.S.C.
§158(c).
21
directly responding to the events that had just transpired, not a
threat or even a statement of forward-looking policy.
The facts of Turtle Bay are instructive. There, a manager
“engaged in a[n unprovoked] tirade” against a union organizer
present in the workplace cafeteria that “included a threat to
discipline any employee who talked to” the organizer. Turtle
Bay Resorts, 353 N.L.R.B. at 1278. Moreover, the employer
“put teeth in his threat . . . by saying the NLRB did not control
him and he was not interested in what the NLRB did.” Id. The
Board found the employer’s “disparagement of [the organizer],
coupled with his threat to discipline any employee who talked
to [the organizer], ha[d] a reasonable tendency to coerce
employees or interfere with Section 7 rights in violation of
Section 8(a)(1).” Id. at 1279. Clearly, the statements at issue
in Turtle Bay were highly inflammatory and included a direct
threat to discipline employees for engaging in protected
activity; combined with the speaker’s cavalier attitude while
instigating a confrontation with the organizer, they could have
been viewed by a reasonable employee as coercive. Here,
however, making general negative statements about unions and
then threatening to do what an employer has the lawful right to
do is entirely distinguishable. 10
V.
In short, the Board’s actions in this matter are more
consistent with the role of an advocate than an adjudicator.
Accordingly, Fred Meyer’s petition is granted, and the Board’s
cross-application for enforcement is denied. The case shall be
10
Any First Amendment argument regarding Dostert’s alleged anti-
union statements has been forfeited by Petitioner. Although such an
argument might be dispositive in a future case, we will leave that
question for another day.
22
remanded to the Board for further consideration consistent with
this Opinion.
So ordered.