“The NLRB – Purposefully or Absentmindedly – Misrepresented Several of the ALJ’s Findings”

Unions have a knack at wanting to gloss over the details of contract language in collective bargaining agreements. This gives unions the ability to later allege a company violated the contract while the company is left without recourse to defend itself. Because of this, I insist on detailed collective bargaining agreements that leave very few stones uncovered. Even when dealing with less devious union negotiators, I keep in mind that the “friendly” ones will one day move on, and I cannot guarantee what type of career union agent I will deal with at that time. In my experience, union agents have become much more confrontational over the last five years – perhaps emboldened by an overly pro-union NLRB – so it remains a good practice to include detailed contract language.

And that is exactly what Fred Meyers Stores had in the “Union Access” clause in its collective bargaining agreement with the union representing its store. That clause stated that when the union visits the store, it “shall first contact the store manager” to notify the employer of the visit, and any contact between union representatives and employees shall “not interfere with service nor unreasonably interrupt employees with the performance of their duties.” The clause continued:

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 and the practice had been that only two union representatives during any one visit. Things rolled along smoothly until a new career union agent came to town. He called for “reinforcements” from the International to “energize” the union’s efforts. This resulted in groups of eight confrontational union representatives visiting the store at the same time.

One day the gang of eight entered the store, and the store manager reminded them that only two could be in the store at the same time. One union representative (wrongfully) said she had a right under “federal law” to “talk to employees as long as she wanted.” The confrontations escalated, and the store manager called the police. Upon arrival, the police told the union reps to leave the store or face arrest. One representative refused and was arrested. The others left. In the parking lot a representative tried to “educate” the police about his “federal rights.” In reply, the police said, “another word and you’re done.” Another word was uttered, and he too, was arrested.

While this may be a day in the life of having a union workforce, the NLRB actually found that the employer violated the National Labor Relations Act “by limiting the agents’ right to contact store employees,” by “disparaging the union,” and by threatening and causing the arrest of union representatives. Say what?

Thankfully businesses have a right to appeal bad decisions. On appeal, the court ruled that the union violated the collective bargaining agreement the moment the gang of eight entered the store without notifying management which was at least 5 minutes before the manager first said anything and a “long time before anyone was arrested – they had become trespassers [the employer] could lawfully expel from the Store.”

But the Court didn’t stop there. It concluded that the Board’s opinion was “more disingenuous than dispositive; it evidenced 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.”

The Court found it egregious that the Board stated the ALJ 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 Board’s tone deafness – even after the dissent drew attention to the error – is the antithesis of reasoned decisionmaing.”

The Board also concluded the employer’s manager declined the union representative’s offer to read the parties’ access policy. Yet, the ALJ specifically stated he could not conclude what was said during the confrontation and “declined to determine precisely what occurred.”

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.”

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

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