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.