August 22, 2017

August 22, 2017

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August 21, 2017

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NLRB’s Acted More Like “Advocate Than Adjudicator” In Issuing Decision, DC Court of Appeals Concludes

When bargaining over an agreement, it is common to hear union representatives ask “why do we need such elaborate language in an agreement?  We are always reasonable.”  To which, the company usually responds, “We think you’re nifty but the next person holding your job may not be as reasonable; better to have it in writing so there is no confusion.”  Clear contract language can solve a lot of issues but only if it is read and followed.  This is why it is sometimes perplexing and irksome that the NLRB will occasionally ignore clear contract language when deciding cases.

A federal appeals court has refused to enforcement of a Board decision finding an employer violated the Act when some union representatives were arrested for trespassing at a store in clear violation of the parties’ longstanding access agreements.  The court, calling the agency more of an “advocate than adjudicator” employed unusually strident language to criticize the Board’s decision.

In Fred Meyer Stores, Inc. v. NLRB, No. 15-1135 (D.C. Cir. August 1, 2017), the employer was faced with a situation that is all too common in labor relations,–a change in leadership at the local union representative level which brought with it more confrontational tactics, as well as a clear disregard of the parties’ agreement.

Background

The employer operates big box retail stores selling groceries and other items.  The employees of the employer have been represented by the union for over twenty years.  In connection with this relationship the parties had negotiated a detailed access provision in the collective bargaining agreement that expressly stated that when the union visits it “shall first contact the store manager” to notify the employer of the visit, and any contact between union representatives and employees should “not interfere with service nor unreasonably interrupt employees with the performance of their duties.”  The parties also had a written memorandum governing visits to the store, which is nothing if not emphatic:

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.

The parties agreed that the term “briefly” meant no longer than two minutes.  The practice of the parties up to the point of the case was that such visits were limited to two union representatives.

“But then things changed.”

When bargaining for a successor agreement began in 2008 the leadership of the union changed.  The new union president called in “reinforcements” from the International to “energize” the union’s efforts.  This resulted in groups of union representatives visiting the stores, not the agreed upon two.  As the union disregarded the access provisions the visits resulted in confrontations.  The employer developed a protocol to handle the confrontations which included reminding the union of the access policy, and in cases where there were violations of the access policy, asking the representatives to leave the store. If the representatives would not leave the police would be called.

We have a right “under Federal law”

In the showdown that would result in the charges, eight union representatives entered a store.  A dispute about access occurred with the employer asserting the visit had to be limited in accordance with the parties’ agreement.  One union representative asserted she had a right under “federal law” to “talk to employees as long as [she] wanted.”  The conversation grew more heated and the union representatives refused to talk about the access policy, bluntly stating “you do what you have to do and I’ll do what I have to do.”

The store manager was on the phone with loss prevention when a union representative got in his face and repeatedly called him a liar.  The store manager called the union representatives “jerks” and stated that unions were “outdated” and that paying union dues was “ridiculous.”  The police were called.  When the police told the union representatives to depart the store or face arrest, one union representative refused and was arrested.  The other representatives left the store.  Thereafter, one of the representatives tried to talk to the police about his “federal rights” and was informed by a police officer “another word and you’re done.”  Another word was uttered and that union representative was arrested.  Charges were filed with the Board over the arrests and the manager’s remarks.

NLRB Finds Violation

Against this backdrop, the NLRB found that the employer violated the Act “by limiting the agents’ right to contact store employees,” by “disparaging the union” and by threatening and causing the arrest of the union representatives.  The original Board decision was issued by a two member panel, which  was nullified by the Supreme Court.  The reconstituted Board reaffirmed its findings, but this time including a strong dissent by Board Member Johnson.  The employer appealed.

Court Refuses Enforcement, Has Harsh Words For NLRB

The Court began its analysis employers generally can prohibit labor organization activities by non-employee union representatives conducted on employer property.  Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) (holding property rights generally prevail over the rights of non-employees when it comes to the NLRA).  Therefore “any right of the Union representatives to enter the Store . . must derive from the parties’ Access Agreement and past practice, not federal law.”  Under this legal authority, the “NLRB carries the burden to show the Union representatives were in compliance with the parties’ Access Agreement.”  The Court noted that under the facts in the record the union was in violation of the access agreement “the moment Union representatives walked through the doors to the Store without notifying management–at least 5 minutes before [the manager] first opened his mouth and long before anyone was arrested–they had become trespassers [the employer] could lawfully expel from the Store.”

The Court then examined the Board’s findings and its reasoning, and concluded that “the Board’s opinion is more disingenuous than dispositive; it evidences a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence–disregarding entirely the need for reasoned decisionmaking.”  Specifically, the Court noted:

  • “[M]ost 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.'” Yet, the ALJ expressly stated he made no such finding.  The Court found this to be “pernicious” and went on to state, “The Board’s tone deafness–even after the dissent drew attention to the error–is the antithesis of reasoned decisionmaking.”
  • The Board concluded the employer’s manager declined the union representative’s offer to read the parties’ access policy.  The Court noted that even the ALJ could not conclude what was said during the confrontation as the union representatives and the manager were engaged in an “intense debate” and the ALJ “declined to determine precisely what occurred. . .”  The Court characterized this finding as “the product of unmoored supposition rather than reasoned decisionmaking.”

The Court remanded the issue of whether the union representatives’ actions were protected noting, “the Board –purposefully or absentmindedly–misrepresented several of the ALJ’s findings and failed to respond to key points raised by the dissent.”

Having essentially concluded that the union was trespassing and that the Board’s findings to the contrary were unsupported (to say the very least), the Court turned its attention to the arrests.  Here the Court recited the NLRB case law that employers are liable when arrests occur when there is a persistent effort to maintain and enforce unlawful policies and “thwart the protected organizational activities of the employees.”  The Court noted the Board adopted the ALJ’s finding that the “causation [was] linear” in that the manager summoned the police and arrests occurred.  The Court rejected this analysis as ignoring the Board’s own precedent and concluded that the “intervening illegal acts” of the union representatives broke the chain of causation.  Thus, the union representatives essentially failed to follow the officers’ directives and were arrested, not because the manager called the police.  Had the union representatives left the store when the police asked no one would have been arrested.  The Court stated the Board’s analysis amounted to the creation of a duty by the manager to prevent the arrests, which was unsupported by the law.

Finally, the Court noted the manager’s statements did not unlawfully disparage the union.  Here the Court cited the very language in its Board case law used to justify employee remarks:  “the Act countenances a significant degree of vituperative speech in the heat of labor relations.”  Under the circumstances, the remarks of the manager were directed at the representatives not employees and were uttered in the heat of the moment.  The Court concluded no violation occurred.

Takeaways

Once again, a Court has refused to enforce a Board order as unreasonable.  This case demonstrates the importance of having clear access language in a collective bargaining agreement.  While we have seen cases where the Board appears to ignore or minimize contract language it is still best to be as explicit as possible because courts like to see it. And, the Board itself is in transition and the law likely will change substantially.

The employer avoided liability in this case by being able to point to a clear written agreement to demonstrate that it was the union, not the employer, that was in the wrong.  Having clear access language also is invaluable in cases like this where union leadership changes and suddenly wants to become more “energized” in its dealings with the employer.

Employers always need to be careful about calling the police in response to protests.  Calling the police should be the last resort and only when all other options have been exhausted.  Even then, a manager should not press for arrest unless circumstances exist warranting it (like a clear disruption to business).  Employers also need to be careful about summoning the police for trespass and should review state law.  In some states, like California, this case might have turned out differently because state law grants access to union representatives to property that is otherwise open to the public.

© 2017 Proskauer Rose LLP.

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About this Author

Mark Theodore, Employment Attorney, Proskauer Rose
Partner

Mark Theodore is a Partner in the Labor & Employment Law Department in the Los Angeles office. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. 

310.284.5640