Fred Meyer Stores, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 2015

362 NLRB No. 82 (N.L.R.B. 2015)

362 NLRB No. 82
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Fred Meyer Stores, Inc. and United Food and Com-
mercial Workers Local No. 555, affiliated with
United Food and Commercial Workers Interna-
tional Union. Case 36–CA–010555
April 30, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On December 13, 2012, the Board issued a Decision
and Order in this proceeding, which is reported at 359
NLRB No. 34. Thereafter, the Respondent filed a peti-
tion for review in the United States Court of Appeals for
the District of Columbia Circuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the Board
issued an order setting aside the Decision and Order, and
retained this case on its docket for further action as ap-
propriate.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale.1
Accordingly, we affirm the judge’s rulings, findings, and
conclusions and adopt the judge’s recommended Order,
as modified below, to the extent and for the reasons stat-
ed in the Decision and Order reported at 359 NLRB No.
34, which is incorporated here by reference.2

1 Because the complaint did not allege, and the General Counsel did
not contend at trial, that the Respondent’s violation of the contract’s
visitation provision constituted a midterm modification without the
Union’s consent within the meaning of Sec. 8(d) of the Act, we do not
pass on that issue.
2 In the now-vacated decision, the Board inadvertently described the
store’s area as 165 acres, when in fact it is 165,000 square feet. We
correct the error.
We shall modify the Order to conform to the Board’s standard re-
medial language. We shall substitute a new notice to conform to the
Order as modified and in accordance with Durham School Services,
360 NLRB No. 85 (2014).
As described in the now-vacated decision, the central
issue is whether the Respondent unlawfully changed the
parties’ longstanding and contractually-based practice of
allowing union representatives to have short conversa-
tions with employees on the selling floor. The parties’
successive collective-bargaining agreements included the
following visitation language:
It is the desire of the Employer and the Union to avoid
wherever possible, the loss of working time by em-
ployees covered by this Agreement. Therefore repre-
sentatives of the Union when visiting the store or con-
tacting employees on union business during their work-
ing hours shall first contact the store manager or person
in charge of the store. All contact will be handled so as
not to interfere with service to customers nor unreason-
ably interrupt employees with the performance of their
duties.
Over the more than 20 years that the contractual access
provision has been in place, the parties have established a
past practice as to its interpretation and application.3
Specifically, as found by the judge, the parties have al-

3 The visitation provision is replicated in the Union’s collective-
bargaining agreements with Safeway, another multi-location grocery
store chain in the Portland area, whose employees the Union represents.
In 2002, the Union endorsed a memo from Safeway explaining the
protocol for visitation. That memo stated:
UFCW 555 Business A[g]ents are in our stores frequently, and espe-
cially now, during the union’s elections and because of the lengthy
Eugene and Salem area negotiations.
Business agents in our stores have certain rights and obligations, as do
we during their visits. Unfortunately, there have been a number of
confrontations between store managers and business agents during the
past few weeks. THE PURPOSE OF THIS MESSAGE IS TO
EXPLAIN WHAT CONDUCT IS ACCEPTABLE – BY THEM
AND BY US.
. . . .
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 em-
ployees are not unreasonably interrupted. Such conversations should
not occur in the presence of customers.
Business Representatives have the right to distribute fliers to employ-
ees 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. . . . . [Emphasis in original.]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
lowed union representatives to have conversations with
employees on the selling floor so long as the following
conditions were met: (1) the employees were not dealing
with or assisting store customers at the time, and (2) the
store floor conversations were kept to a reasonable
length. The judge found that the parties’ understanding
was that a reasonable length was “a minute or two or
possibly longer depending on the circumstances.” The
judge found that the parties did not have a clearly defined
practice with regard to the number of union agents per-
mitted to be in a store at any one time.
The events at issue took place on October 15, 2009.
By then, the Respondent and the Union had been en-
gaged for more than a year in multiemployer negotiations
for a successor collective-bargaining agreement. That
day, the Union sent a team of eight representatives to the
Respondent’s Hillsboro, Oregon facility as part of a
campaign to maintain employee support during the pro-
tracted negotiations. The representatives were instructed
to inform employees about the status of the negotiations,
distribute fliers, and solicit signatures for a petition in
support of the Union’s proposals. When they arrived,
Union Representatives Jenny Reed and Brad Witt, in
accord with the visitation provision of the parties’ collec-
tive-bargaining agreement, stopped at the store’s infor-
mation desk to inform the manager on duty (MOD) that
they were in the store; meanwhile, the other six union
representatives spread out in pairs to talk to employees.4
After about 5 minutes, MOD Jim Dostert arrived at the
information desk and informed Reed and Witt that their
contact with employees on the store floor would be lim-
ited to identification and introductions and that any addi-
tional communications would need to take place in the
breakroom. Reed disagreed with Dostert’s instructions,
and she offered to show him a copy of the parties’ con-
tractual visitation policy. Dostert declined to read or
consider the policy.
Thereafter, as Dostert was on the telephone seeking in-
structions from the Respondent’s corporate office, Reed
and Witt attempted to speak with cashier Alicia England,
who had no customers and was straightening a nearby
display.5 Dostert angrily and repeatedly instructed Eng-
land not to speak to Reed. Dostert yelled that the union
representatives were only there for employees’ dues and
that the employees did not need a union. He asked Reed
and Witt how much money the Union had stolen from its
members, added that he did not believe in unions, and
ordered Reed and Witt to leave the store. Reed told

4 The record is silent on how many customers were in the store at the
time. As discussed below, the store was not particularly busy.
5 The judge inadvertently referred to England as “Robinson.”
Dostert she had a right to be at the store and that she did
not want to pick a fight with him.
As these events were occurring, Dostert received re-
ports from the Respondent’s supervisors that other union
representatives were present in the store. He then sum-
moned store security officer Michael Kline and directed
him to evict Reed and Witt from the store. When Reed
and Witt cited their contractual right to be on the premis-
es and refused to leave, Dostert instructed Kline to call
the police. When the police arrived, Dostert told them he
wanted Reed and Witt “out of there.” Reed attempted to
explain to the police why she was in the store; neverthe-
less, they handcuffed her and escorted her out of the store
and into a police cruiser while about 10 employees
looked on. Ultimately, the police charged Reed with
trespassing. Shortly thereafter, Union Officer Michael
Marshall and Union President Daniel Clay were arrested
for refusing to leave the parking lot.6
The judge found, inter alia, that the Respondent violat-
ed Section 8(a)(5) and (1) by limiting the union agents’
right to contact store employees and Section 8(a)(1) by
telling employees not to speak to the union representa-
tives, disparaging the Union in the presence of employ-
ees, threatening to have union representatives arrested,
and causing the arrest of three union representatives. For
the reasons set forth in the judge’s decision and below,
we agree.
The dissent argues that our decision discourages em-
ployers from entering into visitation agreements and
“strips discretion from the Respondent’s management to
determine what will reasonably interrupt work.” We
disagree. Contrary to the dissent’s characterization, the
parties’ contractual visitation provision does not vest the
Respondent’s management with unfettered discretion to
determine what is unreasonable. And, in any event,
Dostert acted unreasonably and unlawfully because his
directive to Reed and Witt misstated and departed from
the visitation policy, and he issued the directive with no
knowledge of the purpose of their visit.

6 Marshall was one of the union representatives talking to employees
in the store. After the police arrived, he exited the store, walked to the
parking area and stood next to the vehicle in which he had received a
ride to the store. The vehicle was locked, and Marshall did not have the
keys. When a police officer told him to leave the premises, Marshall
explained that he was waiting for the owner of the car. The police
arrested Marshall. About that same time, Clay received a call about
trouble at the store. He arrived at the store and told the police they
should not arrest the union representatives because they had a right
under the Act to be at the store. A police officer asked Dostert whether
he wanted Clay there. Dostert replied that Clay had no right to be
there, and the police arrested Clay as well.
FRED MEYER STORES 3
The dissent also accuses the Union of staging the con-
frontation, a contention that is at odds with the judge’s
findings of fact. The visitation policy does not limit the
number of representatives that may visit a store at one
time, and the testimony of the Union’s officers indicates
that they had planned to use teams to update employees
in large, multiunit stores about negotiations in order to
save time. In any event, contrary to the dissent’s asser-
tion, Dostert was unaware of the presence of the other six
union representatives at the time he instructed Reed and
Witt to go to the breakroom and when he angrily inter-
vened in Reed’s conversation with employee England.
The dissent agrees that the Respondent violated Sec-
tion 8(a)(1) of the Act when Dostert instructed England
not to speak with Reed at all, describing this as “a too-
absolute prohibition” that is inconsistent with the policy
and past practice and noting that there was no evidence
that the union representatives unreasonably interrupted
England’s work. The dissent fails to acknowledge, how-
ever, that there is no evidence that any of the other union
representatives unreasonably interrupted employees’
work or disrupted operations in any way.7 Thus, his pre-
diction that the Union’s efforts would have required far
more time than had been permitted in the past for floor
conversations is unsupported by anything in the record.
In this connection, we note that the 2002 interpretation of
the policy cited above clearly allows union representa-
tives to hold brief conversations and to distribute fliers
on the store floor.
Next, the dissent argues that although the employees
had a right to have their union representatives protest
management’s truncation of the visitation policy, the
protest was subject to the limitations in the visitation
policy itself. The visitation policy, however, says noth-
ing of the sort, and the dissent’s addition to the policy
would create an absurd requirement that union represent-
atives attempt to speak with employees and protest the
Respondent’s violation of the policy in the brief time
allotted under the policy for conversations with individu-
al employees. Moreover, in an attempt to bolster his
characterization of the Union as overstepping its bounds,
the dissent repeatedly asserts that the Union “argued”
with management for 45 minutes on the shop floor. Alt-
hough several witnesses described the incident as lasting

7 There is no evidence that the presence of the eight union represent-
atives caused any disruption of operations in the 165,000 square foot
facility. The union representatives arrived at about 9:30 a.m. on a
weekday, when the store was not busy, and spread out to speak with
employees. They did not move as a group within the store. That Eng-
land was straightening a display rather than attending to customers
when Dostert prohibited her from speaking with Reed and Witt sup-
ports our inference that the visit occurred at an offpeak hour and that no
disruption of customer service occurred.
45 minutes, these accounts referred to the entire series of
events, from the time the union representatives entered
the store until the police handcuffed Reed and put her in
the police vehicle. Reed and Witt waited at the customer
service desk for 5 minutes; Dostert made three phone
calls to the corporate office and received one call from
the Respondent’s director of human resources; Dostert
summoned the store’s security guard; disparaged the
Union and its representatives between making those
phone calls and while speaking on the phone; and ap-
proximately 15 minutes elapsed from the time the police
handcuffed Reed until they put her in the patrol car. Al-
so covered in that 45-minute period was the police’s ar-
rest of Union Representative Marshall while he waited in
the parking lot for the union representative with whom
he had carpooled to unlock the vehicle, and the arrest of
Clay when he arrived to assist his colleagues. Thus, any
“argument” between Dostert and union representatives
on the shop floor occupied only a fraction of the 45-
minute period. And again, during all of this time, there is
no evidence that any customer was ignored or that store
operations were otherwise disrupted. Indeed, the only
“confrontation” was caused by Dostert’s misguided in-
terpretation of the contractual visitation policy, his angry
admonitions that employee England and Reed not speak
to each other, and his disparaging remarks about the Un-
ion.
Last, relying on the First Amendment and Section 8(c)
of the Act, the dissent would reverse the judge’s finding
that Dostert’s disparagement of the Union and its repre-
sentatives was unlawful. The First Amendment, with
few restrictions, permits citizens to voice their opinions
in word and deed. Section 8(c) protects “the expressi[on]
of any views, argument, or opinion, or the dissemination
thereof, whether in written, printed, graphic, or visual
form . . . if such expression contains no threat of reprisal
or force or promise of benefit.” Employers and their
agents are generally free to express their views about
unionization, even vituperatively, and “[w]ords of dis-
paragement alone concerning a union or its officials are
insufficient for finding a violation of Section 8(a)(1).”
See Turtle Bay Resorts, 353 NLRB 1242, 1278–1279
(2009), and cases cited therein, incorporated by reference
in 355 NLRB 706 (2010). Nevertheless, such statements
must be considered in context, not in isolation, and dis-
paraging statements uttered in the context of the commis-
sion of unfair labor practices or in response to protected
concerted activity may rise to the level of unlawful
threats. Id. In Turtle Bay, for example, a manager’s dis-
paraging remarks about a union representative, made
when he accosted her in a cafeteria in the presence of
employees and threatened to discipline any employee
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
who spoke with her, were found to have violated Section
8(a)(1). See also Fieldcrest Cannon, Inc., 318 NLRB
470, 474 (1995), enfd. in pertinent part 97 F.3d 65 (4th
Cir. 1996) (employer violated the Act by making dispar-
aging remarks about the union in the context of other
coercive statements).
Here, Dostert, the manager in charge of the store, en-
gaged in an angry tirade against the Union and its repre-
sentatives—fuming in front of at least one employee that
the employees did not need a union and accusing the
Union of stealing from the employees, while unlawfully
abridging the visitation provision, preventing England
and Reed from talking, and calling the police to arrest
them. We agree with the judge that Dostert’s remarks,
uttered in connection with his unlawful denial of the of
the union representatives’ visitation rights, his unlawful
order to an employee not to speak with a union repre-
sentative, his unlawful threats to have union representa-
tives arrested, and the unlawful expulsion and arrest of
union representatives, had a reasonable tendency to co-
erce employees and interfere with their exercise of Sec-
tion 7 rights.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and directs that the Respondent, Fred
Meyer Stores, Inc., Hillsboro, Oregon, its officers,
agents, successors, and assigns, shall take the action set
forth in the judge’s recommended Order as modified.
1. Insert the following as paragraphs 2(a) and (b) and
reletter the remaining paragraphs.
“(a) Rescind the unilateral change in the parties’ prac-
tice limiting the union representatives’ contractual right
to contact represented store employees, and notify the
Union in writing that this has been done.
“(b) Before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining units:
The Grocery, Produce, and Delicatessen (Grocery)
Unit:
All employees within the jurisdiction of United
Food & Commercial Workers’ Union Local 555,
covered by the wage schedules and classifications
listed in the collective-bargaining agreement (head
clerk/head produce clerk, journey person clerk, ap-
prentices, courtesy clerks, demonstrators, container
clerks employed in the grocery, produce and delica-
tessen departments), for all present and future stores
of the Respondent in Multnomah, Washington,
Clackamas, Columbia, and Yamhill Counties, Ore-
gon.
The Combined Checkout (CCK) Unit:
All employees employed in the Respondent’s
combination food/non-food check stand departments
in all present and future combination food/non-food
check stand departments in Multnomah, Washing-
ton, Clackamas, Columbia, and Yamhill Counties,
Oregon.
The Retail Meat Unit:
All employees covered by the wage schedules
and classifications listed in the collective-bargaining
agreement (head meat cutter, journeyperson meat
cutter, apprentices, journeyperson meat wrapper,
lead person, journeypersons employed in the retail
meat, service counter/butcher block, and service fish
departments), for all present and future stores of the
Respondent in Multnomah, Washington, Clackamas,
Columbia, and Yamhill Counties, Oregon.
The Non-Food Unit:
All employees within the jurisdiction of United
Food & Commercial Workers Union Local 555,
covered by the wage schedules and classifications
listed in the collective-bargaining agreement (gen-
eral sales, store helper clerks, salvage, pharmacy
tech A, lead clerks, PICs), for all present and future
stores of the Respondent in Multnomah, Washing-
ton, Clackamas, Columbia, and Yamhill Counties,
Oregon.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. April 30, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER JOHNSON, dissenting in part.
It is the mission of this agency to serve the public’s in-
terest in maintaining and promoting labor peace, an obli-
FRED MEYER STORES 5
gation we fulfill in large part by respecting agreements
between employers and employee representatives meant
to foster good relations and minimize disruptions to
commerce. The access-visitation policy at issue here is
such an agreement, providing for brief, nondisruptive
visits between employees and their representatives dur-
ing working time that do not “unreasonably interrupt”
employees, and thus balancing employee interests with
the employer’s prerogative to maintain production. Un-
fortunately, the underlying decision, and today’s affirma-
tion of its holding, sends the counterproductive message
to employers that they should refuse to agree to such
policies, particularly if they rely, as they must, on any
sort of reasonableness standards. Here, the Board has
expanded an agreement permitting “brief” working time
conversations between employees and their representa-
tives into one providing an essentially unlimited-duration
access right, and throws off any balancing of rights that
animated the agreement by essentially stripping the Em-
ployer of discretion to determine what is an unreasonable
interruption of work. The decision is a disincentive to
employers contemplating such beneficial access policies
and fails to contribute to our mission of promoting labor
peace.
At the outset, I do agree with my colleagues on one
point: that the Respondent violated Section 8(a)(1) of the
Act by telling employee Alicia England not to talk to her
union representatives on the shop floor at all. This too-
absolute prohibition was inconsistent with the parties’
visitation policy and past practice, and there is no evi-
dence that the union representatives unreasonably inter-
rupted England’s work.
That violation, however, did not spawn a Section 7
right of the union representatives to persistently argue
with a manager for a good 45 minutes on the shop floor,
nor to refuse both his and police officers’ orders to leave.
I also agree with former Member Hayes that the nonem-
ployee union representatives’ planned visit and efforts to
educate and obtain petition signatures from employees
while on the shop floor far exceeded the scope of past
visits and, by the same measure, the scope of the Act’s
protection. Accordingly, aside from the above violation,
I would dismiss the other allegations in agreement with
former Member Hayes’ dissent.
Turning to the visitation policy, it states that “[a]ll con-
tact will be handled so as not to interfere with service to
customers nor unreasonably interrupt employees with the
performance of their duties.” Nothing in the policy strips
discretion from the Respondent’s management to deter-
mine what will reasonably interrupt work. And no em-
ployer would agree to such a reasonable provision if it
thought it meant ceding such a basic managerial preroga-
tive. Nor does the past practice define a limit to the Re-
spondent’s discretion to deal with the planned confronta-
tion here, where the Union sought to force the Respond-
ent to put up with its petitioning of employees while they
were working, far exceeding the low-key visits of the
past. Thus, eight representatives descended on the store
with petitions (and, yes, contrary to the majority, Manag-
er Jim Dostert did become aware of this during the con-
frontation with the union representatives, as he was re-
ceiving calls from other managers informing him of what
was going elsewhere in the store). The Union’s repre-
sentatives had come to the store ostensibly to educate
employees about the Union’s bargaining proposals and
the state of negotiations with the Employer, to seek sup-
port from employees about those proposals, to have em-
ployees read the petition language, and to secure em-
ployee signatures on those petitions. All of this was to
occur while the employees were performing their work.
Further, a union representative had threatened the day
before to cause a confrontation, and the Union clearly
intended to discover what sort of activity they could get
away with in the name of the visitation policy. As for-
mer Member Hayes observed, the Union’s efforts would
have required far more than the 1-to-2-minute conversa-
tions permitted in the past.1 The Respondent here was
reasonably apprehensive that the Union sought to create
a dispute in the store that quite obviously exceeded the
scope of past visits. Consequently, the Respondent was
well within its rights when it tried to minimize disruption
by directing union representatives to the breakroom, by
eventually ordering the obstreperous nonemployee repre-
sentatives out, and by calling police.2

1 Even where the Union had brought flyers in the past, employees
were directed to read them while on break.
2 The undisputed testimony is that, the day before, representatives
visited the store, and a manager asked a union representative not to
interrupt an employee who was working at the time the representative
was trying to talk to her. An argument ensued, the store manager joined
the exchange, and the union representative—according to the Employ-
er’s witness—became angry and threatened to bring 15 to 20 more
union representatives into the store the next day. Thus, we know there
was a confrontation, there was a perception that the union representa-
tives were planning to stage a confrontation quite obviously beyond the
bounds of any agreement or the rights protected by the Act, and the
reported threat of a confrontation by the Union reasonably spurred the
Employer to discuss appropriate responses with its managers in the
event such a confrontation did occur as threatened. Hence, managers
including Dostert were well on guard for trouble by the time the Union
returned representatives to the store the next day with planned activity
that far exceeded past practices (at the least, petitioning and discussing
bargaining positions—a somewhat involved topic—on the shop floor).
Moreover, Dostert was being called by managers seeking advice on
handling the union representatives elsewhere in the store. My col-
leagues make much of their claim that Dostert did not know precisely
what the union representatives were doing at the time, but that is irrele-
vant to whether their activity was protected and whether he interfered
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
I agree with my colleagues that the unit employees had
a Section 7 right to have their representatives protest a
management decision on their behalf. But that is subject
to the previously agreed-upon limits to the nonemployee
representatives’ access. Thus, any Section 7 rights at
issue here were constrained to (a) a brief protest, as the
parties’ contract does NOT provide an unlimited-
duration access right but, on the contrary, a “brief” right
of conversation,3 and (b) grieving the matter under the
appropriate contract provision if there is a continuing
dispute. Any right to protest the purported curtailment of
the past practice cannot logically itself exceed what that
past practice would allow and still retain the Act’s pro-
tection. Here, the representatives’ statutory right to re-
main evaporated after a few minutes of arguing and well
before the Respondent ordered them to leave and called
police. The Act did not require the employer to tolerate
lengthy disruptive arguments and conversations on the
shop floor and repeated refusals to leave, nor did it re-
quire police to tolerate refusals to abide their orders.4
My colleagues also err by their further finding that
Dostert unilaterally changed terms and conditions of em-
ployment by telling union representatives to talk to em-
ployees in the breakroom. Even assuming for the sake of
argument that this one-time situation amounted to a con-
tract breach, which is not alleged, it did not reflect any

with the exercise of Sec. 7 rights. I find that the union visitors had
exceeded the boundaries established by the policy and past practice and
were not engaged in protected activity. Accordingly, even if Dostert did
not know precisely what was going on, he did not interfere with pro-
tected activity. But I find that he acted reasonably and lawfully based
on what he knew, what he indisputedly and reasonably anticipated, and
in accord with the Employer’s right to maintain order in its store.
3 As the majority notes, the Union endorsed a 2002 employer memo-
randum concerning acceptable store visit conduct. That document
underscored the expectation that visits by union agents with employees
would be brief, e.g., “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.” See majority
opinion, supra (capitalizations from original memorandum).
4 Based on some guesswork and estimations, my colleagues dispute
that Union Agents Brad Witt and Jenny Reed actually argued for a full
45 minutes with management. Unfortunately, my colleagues miss the
point here. It is undisputed that, until the very end of the incident, the
six other union agents remained in the store. Even if the time spent
during the Witt-Reed argument with management might have been less
than 45 minutes for each one of those two union agents, the cumulative
amount of disruption caused by the eight agents during the overall
encounter was far more than 45 minutes. The majority’s belief that no
disruption occurred is simply belied by both the commonsense conse-
quences of what happens when eight people commence simultaneous
solicitation in a department store for this length of time and also by the
record evidence. For example, Union Agent Reed described the en-
trance of the store, at the incident’s conclusion, as “a scene of confu-
sion” that included “customers trying to leave the store.” 359 NLRB
No. 34, slip op. at 14 (2012).
sort of policy change to establish an 8(a)(5) unilateral
change. There was no change because the policy appar-
ently had not been tested in this way before. Thus, send-
ing the union representatives to the breakroom in re-
sponse to a union-orchestrated confrontation wholly dis-
similar from anything that had occurred in the past is
hardly a change to working conditions. The matter is
appropriate for a grievance and arbitration process by
which the limits of the policy can be clarified, not an
8(a)(5) allegation.
Finally, my colleagues also find that Manager Dostert
unlawfully disparaged the Union. This finding illustrates
this Agency’s persistent failure to grasp fairly basic First
Amendment law and strays from the express language of
Section 8(c) of Act. Manager Dostert expressed his
opinion to England that union representation was unnec-
essary and outdated, and that union representatives were
stupid, stealing employees’ dues money, and worthless
(slightly different language than the complaint alleges).
Each an obvious personal opinion. Section 8(c) provides
that the expressing of any views, argument, or opinion
shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this Act if such
expression contains no threat of reprisal or force or
promise of benefit. See NLRB v. Gissel Packing Co.,
395 U.S. 575, 618 (1969). Flip and intemperate expres-
sions of personal opinion are both constitutionally—and
statutorily—protected speech. Sears, Roebuck & Co.,
305 NLRB 193 (1991) (respondent did not violate the
Act by telling employees that the union might send
someone to break their legs to collect dues). Section 8(c)
protects a respondent’s characterization of a union,
which employees are quite capable of evaluating for
themselves. Fayette Cotton Mill, 245 NLRB 428 (1979).
As Sears shows, statements can be far less innocuous
than were Dostert’s mild abrasions to the Union’s integ-
rity without losing protection. Dostert’s statements con-
tained no threats and are obviously expressions of opin-
ion that he is entitled to have and share. The majority errs
(dramatically, in my view) by finding that his comments
were rendered unlawful by their mere proximity to other
unfair labor practices, although the comments themselves
contained no threat, express or implied. This virus-type
theory by which unlawful conduct apparently infects
mere statements of opinion and morphs them into im-
plied threats is a work around of basic First Amendment
FRED MEYER STORES 7
principles and does not comport with the express statuto-
ry language that only permits us to find speech unlawful
if it contains a threat or promise. The comments here did
not, and this allegation too should be dismissed.
Dated, Washington, D.C. April 30, 2015
______________________________________
Harry I. Johnson, III, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT direct our union-represented employees
not to speak to union representatives on the store floor.
WE WILL NOT tell union representatives visiting our
represented stores not to talk to union-represented em-
ployees on the store floor.
WE WILL NOT tell union representatives visiting our
represented stores they must go to the employee
breakroom in order to speak with represented employees.
WE WILL NOT disparage or criticize United Food and
Commercial Workers Local No. 555, affiliated with
United Food and Commercial Workers International Un-
ion (the Union) or the visiting union agents in our stores
in the presence of our employees by stating variously
that union representation was unnecessary and outdated,
that the Union and its representatives were stupid, steal-
ing employees’ dues moneys, and/or were otherwise
without value or worth.
WE WILL NOT threaten union representatives visiting
our represented stores that we will have them arrested or
removed from the store because they would not restrict
their conversations with represented employees to the
store employee breakroom.
WE WILL NOT instruct our store security officers to
contact the police to have the union representatives ar-
rested or removed from the store because the union rep-
resentatives would not restrict their contract with repre-
sented employees to the store employee breakroom.
WE WILL NOT cause the arrest of union representatives,
including Union Agents Jenny Reed, Michael Marshall,
and Daniel Clay, because they refused to leave, or were
not sufficiently rapid in attempting to leave, our Hillsbo-
ro, Oregon store and parking lot.
WE WILL NOT cause the criminal prosecution for tres-
pass of union representatives, including Union Agents
Reed, Marshall, and Clay, because they refused to leave,
or were not sufficiently rapid in attempting to leave, the
Respondent’s Hillsboro, Oregon store and parking lot.
WE WILL NOT fail and refuse to bargain collectively
with the Union as the exclusive bargaining representative
of our employees in the bargaining units of employees
described below by denying union agents access to our
represented store employees on the store floor in a man-
ner consistent with our contracts’ terms and our practice
of applying said terms without prior notice to the Union
and without affording the Union the opportunity to bar-
gaining with respect to this conduct and the effects of
this conduct.
WE WILL NOT in any other like or related manner re-
strain or coerce employees in the exercise of the rights
listed above.
WE WILL rescind the unilateral change in the parties’
practice limiting the union representatives’ contractual
right to contact represented store employees, and notify
the Union in writing that this has been done.
WE WILL notify and, on request, bargain with the Un-
ion as the exclusive collective-bargaining representative
of employees in the following bargaining units before
implementing any changes in wages, hours, or other
terms and conditions of employment of unit employees:
The Grocery, Produce, and Delicatessen (Grocery)
Unit:
All employees within the jurisdiction of United
Food & Commercial Workers’ Union Local 555,
covered by the wage schedules and classifications
listed in the collective-bargaining agreement (head
clerk/head produce clerk, journey person clerk, ap-
prentices, courtesy clerks, demonstrators, container
clerks employed in the grocery, produce and delica-
tessen departments), for all our present and future
stores in Multnomah, Washington, Clackamas, Co-
lumbia, and Yamhill Counties, Oregon.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
The Combined Checkout (CCK) Unit:
All employees employed by us in our combina-
tion food/non-food check stand departments in all
present and future combination food/non-food check
stand departments in Multnomah, Washington,
Clackamas, Columbia, and Yamhill Counties, Ore-
gon.
The Retail Meat Unit:
All employees covered by the wage schedules
and classifications listed in the collective-bargaining
agreement (head meat cutter, journeyperson meat
cutter, apprentices, journeyperson meat wrapper,
lead person, journeypersons employed in the retail
meat, service counter/butcher block, and service fish
departments), for all our present and future stores in
Multnomah, Washington, Clackamas, Columbia, and
Yamhill Counties, Oregon.
The Non-Food Unit:
All employees within the jurisdiction of United
Food & Commercial Workers Union Local 555,
covered by the wage schedules and classifications
listed in the collective-bargaining agreement (gen-
eral sales, store helper clerks, salvage, pharmacy
tech A, lead clerks, PICs), for all our present and fu-
ture stores in Multnomah, Washington, Clackamas,
Columbia, and Yamhill Counties, Oregon.
WE WILL make the Union or Union Agents Reed, Mar-
shall, and Clay, as the case may be, whole for any and all
legal, representational, and related costs arising from the
Reed, Marshall, and Clay arrests and any and all related,
subsequent proceedings, with interest compounded daily
on the amounts due.
WE WILL notify the appropriate law enforcement and
court authorities of the illegality of the arrests of Reed,
Marshall, and Clay on October 15, 2009, and WE WILL
seek the expungement of associated official records and,
further, WE WILL, within 3 days of our actions, notify the
Union and Reed, Marshall, and Clay that this has been
done.
FRED MEYER STORES, INC.
The Board’s decision can be found at
www.nlrb.gov/case/36-CA-010555 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273-1940.