Fred Meyer Stores, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 8, 2010

36-CA-010555 (N.L.R.B. Dec. 8, 2010)

JD(SF)–48–10
Portland, Oregon
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
FRED MEYER STORES, INC.
The Respondent
and Case 36-CA-10555
UNITED FOOD AND COMMERCIAL
WORKERS LOCAL No. 555, affiliated with
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION
The Charging Party
John H. Fawley, Esq. and
Helena A. Fiorianti, Esq.,
for the General Counsel.
Richard J. Alli, Jr. and Jennifer A. Sabovik, Esqs.
(Bullard, Smith, Jernstedt & Wilson),
of Portland, Oregon, for the Respondent.
John S. Bishop, Esq. (McKanna, Bishop,
Joffe & Arms), of Portland, Oregon
for the Charging Party.
DECISION
Statement of the Case
CLIFFORD H. ANDERSON, Administrative Law Judge: I heard the above-captioned
case in 3 weeks of trial in Portland, Oregon over the period April through July 2010. Post
hearing briefs were timely submitted on August 31, 2010.
The matter arose as follows. On October 15, 2009, the United Food and Commercial
Workers Local No. 555, affiliated with United Food and Commercial Workers International Union
(the Union or the Charging Party) filed a charge against Fred Meyer Stores, Inc. (the Employer
or the Respondent) with Subregion 36 of the National Labor Relations Board docketed as Case
36-CA-10555. Following an investigation, the Regional Director for Region 19 on
January 29, 2010 issued a Complaint and Notice of Hearing regarding the charge and, on
April 27, 2010, amended the complaint. The Respondent filed timely answers to the complaint
and amended complaint.
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The amended complaint alleges in paragraph 9 that the Respondent on
October 15, 2009, at its Hillsboro, Oregon store through its store Home Department Manager
Jim Dostert:
(a) Directed employees not to speak with union representatives;
(b) Told union representatives that they could not speak to employees;
(c) Told union representatives that they must go to the employee breakroom in order to
speak with employees;
(d) Disparaged the Union in the presence of employees by stating that:
(i) Union representatives are jerks;
(ii) Unions are outdated and ridiculous;
(iii) Union dues are ridiculous; and
(iv) Union representatives and the Union are stupid;
(e) Threatened to have union representatives arrested or removed from the store
because they would not restrict their conversations with employees to the employee
breakroom; and
(f) Instructed Hillsboro store Loss Prevention Manager Michael Kline in the presence of
employees to contact the police to have the union representatives arrested or removed
from the store because they would not restrict their conversations with employees to the
employee breakroom.
The complaint further alleges in paragraph 10 that the Respondent on October 15, 2009,
at its Hillsboro, Oregon store through its Hillsboro store Home Department Manager Jim Dostert
and Hillsboro store Loss Prevention Manager Michael Kline caused the arrest of the union
representatives because they refused to limit their conversations with employees to the
employee breakroom. And the complaint alleges at paragraph 11 that since October 15, 2009,
the Respondent caused the criminal prosecution of the union representatives because they
refused to limit their conversations with employees to the employee breakroom.
The conduct alleged in complaint paragraphs 9, 10 and 11 is further alleged in complaint
paragraph 15 to violate Section 8(a)(1) of the National Labor Relations Act (the Act).
The complaint further alleges in paragraph 13, that at the same place and time the store
Home Department Manager in limiting the union agents’ right to contact represented store
employees within the facility consistent with the parties’ contract and past practice, unilaterally
changed the terms and conditions of union represented employees without notifying the Union,
bargaining with the Union respecting the change or obtaining the Union’s permission and, in so
doing, the complaint alleges in paragraph 14 the Respondent violated Section 8(a)(5) and (1) of
the Act.
The Respondent in its answer denies the noted allegations of the complaint. It alleges
the union agents involved in the October 15, 2009 contretemps were not conforming to the
uniformly applied rules and practices of the Respondent or of the contract concerning in-store
union agent contact with represented employees and therefore the union agents did not have
the right to remain at the Respondent’s Hillsboro facility. The Respondent argues further that the
union agents were properly asked to leave and some did not. Therefore, the Respondent
argues, its actions in obtaining their removal and the Respondent’s utilization of public authority
to accomplish that removal were permissible under the Act. Further, the Respondent
specifically denies that the Respondent’s agents’ application of the rules to the union agents at
the Hillsboro store on October 15, 2009, was a change in the longstanding application of the
rules and practices followed by the parties and it therefore argues no change in the employees’
working conditions occurred and Section 8(a)(5) of the Act was not violated as alleged.
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Findings of Fact
Upon the entire record herein including helpful briefs from each of the parties, I make the
following findings of fact.1
I. Jurisdiction
At all material times, the Respondent, a State of Ohio corporation with an office and
place of business in Hillsboro, Oregon, has been engaged in the retail grocery business. During
the12-month period preceding the initial issuance of the complaint, the Respondent enjoyed
gross revenues in excess of $500,000, and during the same period purchased and received at
its Hillsboro facility goods valued in excess of $50,000 directly from suppliers located outside
the State of Oregon.2
Based on the above, there is no dispute and I find that the Respondent is and has been
at all times material an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. Labor Organization
The pleadings establish, there is no dispute, and I find the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. The Collective-Bargaining Relationship
The Respondent is a company doing business throughout Oregon and in other states
engaged in the retail sale of groceries and other products in many cases in “big box” facilities of
several acres in size, offering groceries and a wide variety of other products under one roof.
The Respondent has many facilities in the Portland, Oregon area including a 165,000 square
foot grocery and other goods retail facility in Hillsboro, Oregon.
The Union is a labor organization representing food and commercial workers in the State
of Oregon and portions of Washington including the representation of a large number of the
Respondent’s employees in the Portland, Oregon area.
At all relevant times, the Respondent has recognized the Union as the exclusive
representative for purposes of collective bargaining of certain of its employees in various
bargaining units (units). These units include the following units, each of which is alleged in the
complaint and admitted in the answer to be a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act and respecting which the Union is the
employees’ representative pursuant to Section 9(a) of the Act.
The Grocery, Produce, and Delicatessen (Grocery) Unit:

1 As a result of the pleadings and the stipulations of counsel at the trial, there were few disputes of
fact regarding collateral matters. Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, or unchallenged credible evidence.
2 The Board has recently taken jurisdiction over the Respondent. See for example, Fred Meyer
Stores, Inc., 355 NLRB No. 93 (2010).
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All employees within the jurisdiction of United Food & Commercial Workers’ Union
Local 555, covered by the wage schedules and classifications listed herein (head
clerk/head produce clerk, journey person clerk, apprentices, courtesy clerks,
demonstrators, container clerks employed in the grocery, produce and delicatessen
departments), for all present and future stores of the Respondent in Multnomah,
Washington, Clackamas, Columbia, and Yamhill Counties, Oregon.
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, Washington, Clackamas, Columbia, and Yamhill Counties,
Oregon.
The Retail Meat Unit:
All employees covered by the wage schedules and classifications listed herein (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 herein (general sales,
store helper clerks, salvage, pharmacy tech A, lead clerks, PICs), for all present and
future stores of the Respondent in Multnomah, Washington, Clackamas, Columbia, and
Yamhill Counties, Oregon.
The Respondent’s Hillsboro store employees in each of the four above described bargaining
units are represented by the Union.
IV. The Alleged Unfair Labor Practices
A. Background
1. The Applicable Collective-Bargaining Agreements
The grocery and meat bargaining units are covered by multiemployer bargaining
agreements negotiated by a multiemployer association, Allied Employers, on behalf of the
Respondent, two other major grocery employers and a few smaller employers. The non-food
and CCK units are represented in negotiations with the Union by the Respondent individually.
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At all relevant times3 the applicable Portland and Vicinity Grocery, Meat and CCK
contracts covering the represented employees in the units set forth above, including the
represented employees at the Hillsboro store, contained a store-visitation clause that concerns
store visits by union representatives in which they contact represented employees on union
business during employees’ working hours. The contracts, not with identical numbering, contain
identical language in a general conditions clause sub-article entitled, “Store Visitation”:
It is the desire of 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 not to interfere with service to customers nor
unreasonably interrupt employees with the performance of their duties.
The Grocery, Meat and CCK contracts expired in July 2008, but were extended by
written agreements to continue until the parties reached new agreements. Such new
agreements were reached in early 2010. The contracts with the quoted language were
therefore current and in effect during all of 2009. The parties stipulated that the same contract
language and practices concerning the quoted language was applied to non-food unit
employees including at the Hillsboro facility at all relevant times. The quoted contract language
thus covered all represented employees at the Hillsboro facility at all relevant times.
2. Store visitation4
The Respondent’s facilities in which represented employees work are often large, stand-
alone facilities with adjacent parking areas. The stores are open during normal retail hours and
represented employees generally work in areas where retail customers are shopping for the
goods on sale. Some employees at the Hillsboro facility and doubtless other of the
Respondent’s facilities in the Portland area also work at least part of the time in nonpublic areas
engaged in such tasks as maintaining security, receiving and warehousing product, or preparing
items for sale. There are also offices and a nonpublic meal or breakroom for store staff use at
relevant times with the normal tables and chairs and vending machines, etc.
The Union at all relevant times has utilized a staff to make regular visits to the stores in
which its represented employees are employed including the Respondent’s Portland area
facilities and the Hillsboro store. Such individual union agents have a number of stores
assigned to them and they visit each on a regular basis. Beyond the contract language quoted
above, at least through the events at issue, there have been no written policies or explanations
of the policy promulgated and distributed by the Respondent or apparently reduced to writing in
any formal manner.
Substantial testimony on the store visitation policy and its application in practice was
offered by the parties. The consensus of the testimony on the visitation process suggested that
the longstanding, typical or ordinary practice was for the individual assigned union agent to visit

3 Testimony established that the contract visitation language has been present in the parties’
contracts in unchanged form at least for the past almost 20 years and was carried forward,
again in unchanged form, in the 2010 contracts.
4 The “visitation” involved herein is only the in-store visitation of represented store
employees by union agents. Union agent visits to store management officials or in attending
store site meetings are not at issue.
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a store on his or her “route” during the store’s business hours, enter the store, directly or
indirectly identify himself or herself to the store manager or person in charge of the store, and
then walk the areas of the store where represented employees might be found. Encountering
represented employees on the floor; the union agent would identify him or herself to
represented employees and then communicate with the employee for a reasonable period. By
the quoted contract language, this process could occur in the public areas of the store, but it
should not interrupt employee service to customers or unreasonably interrupt employees in their
duties. Conversations or contacts between employees and union agents that could not be
concluded on the shop floor consistent with these limitations could be deferred to a later
meeting, a later phone call or electronic communication from the modern panoply of mobile
communication options now at hand, or the meeting could be adjourned to the store breakroom.
The testimony on both sides respecting the visitation practice addressed the
quantification of the reasonableness aspects of the visitation agreement. Thus all who
addressed the issue agreed a brief or reasonable period of communication was permissible
between a union agent and a represented employee and an unreasonable period was not.
Union Field Representative Mary Spicher was assigned the Hillsboro store in the months before
the events in controversy and indicated she limited her shop floor conversations with
represented employees to “a couple of minutes,” with a lesser time for cashiers in place at their
cashier stations. Hillsboro management officials, Hillsboro Store Manager Catalano and Home
Department Manager Dostert, testified that it was permissible for a union agent to engage with
represented employees on the store floor for a minute or two.
Mary Spicher testified to two encounters with Hillsboro Store Manager Gary Catalano
respecting union visitation during her visits to the store, the first occurring in the spring or early
summer of 2008. She testified:
I was just about finished with my route work and talking to people and he came up to me
and said, you know you can't talk to anybody except in the breakroom. I said, no. Under
the contract and the National Labor Relations Act, I have the right to talk to people while
they're on the floor, and I have it right here in the contract. And he said, no, you don't.
You have to go to the breakroom. And I happen to not have the contract on me. I went
out to the car and I got it. I brought it back in and I showed it to him, and he said he
didn't care and he was going to call [Respondent’s Regional Human Resources
Representative] Terri Robinson. … I said fine. But I'm through for today anyway, and
I walked out to the car and I called [Robinson] first…
I had told [Robinson]. I said, I was in the [Hillsboro] store and Mr. Catalano's telling me
that I can't talk to anybody except in the breakroom, and that's not correct. And she
said, I'll talk to him. I said, thank you.
A few months later, Spicher testified she was in the Hillsboro store and had a brief
exchange with an employee. Leaving the area Spicher encountered Store Manager Catalano.
She described the brief conversation:
And I was headed around the corner, and Mr. Catalano came the other way, and he
said, I saw you talking to Lance in the seafood, and I told you, you can't talk to
people on the floor.
Q. Did you respond?
A. I said that if you saw me, you know I was there about 30 seconds.
Q. Did he have any response to that?
A. He walked off.
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When she was finishing her in-store communication with represented employees, Catalano
approached her and said: “You know you can't talk to anybody except in the breakroom.”
Catalano did not testify respecting these specific conversations, but rather recalled:
“There have been a couple of times where I've reminded the reps not to take up too much
time of the employees or interrupt their job duties.”
A separate aspect of the dispute regarding the visitation rules was whether or not there
was a numeric limit to the number of union agents who could be in the store for such purposes
at one time. The contract language is not specific as to the number of representatives permitted
at any one time. The clause simply requires no interference with service to customers or
unreasonable interruption of employee performance of duties. There is no doubt that union
practice typically involved one agent at a time, with two agents occasionally performing their in
store functions when one agent was training or introducing a newer agent to the facility.
The dispute regarding the practice extant at the time of the controversy at issue is
discussed in detail infra.
B. The Events
1. Fall 2009
Negotiations for new Portland Area contracts to replace those that expired in July 2008
had not concluded after over a year of bargaining and in 2009 the Union sought the help of its
International who provided various assistance including that of International Representative
Jenny Reed in July 2009. Part of the Union’s efforts carried out from that time was a campaign
to encourage and sustain unit employee support for the Union in bargaining. This campaign
included a variety of aspects. Thus Reed testified:
I've assisted with formulating the message on text messaging, on e-mails, on fliers.
We've had member nights out, that I have participated in, to garner membership
involvement in their Union. There's been open house[s]. We've gotten quotes and
pictures from members about what their goals are on the contract. We've talked to
members. We've developed talking points so that we can talk to members about
what's important to them. I've had meetings, coffee, breakfast, small-group, large-
group meetings with members in variety of stores and locations. I've had one-on-
one meetings. And I've helped other staff have one-on-one meetings. We've done
a variety of things. You know, petitions and community coalitions and there's been
a variety of things...
The union representatives who visited stores to talk to represented employees in their stores
were encouraged to talk to employees about the negotiations and encourage support for the
Union’s bargaining efforts and did so.
By early fall 2009, the union efforts in these regards became more active and, in the
face of decertification petitions filed in two of the Respondent’s Oregon stores, the Union
suspected the Respondent of seeking to undermine the Union and viewed the employers
conduct generally with alarm and reviewed unfair labor practice procedures and possibilities.
The Union utilized the International Representatives provided to it to train its own
representative in visiting stores and encouraging employee support for the Union.
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The Union also began to use “delegations” of up to eight Union agents to enter into a store in
the September-October 2009 period. International Representative Jenny Reed testified:
So, having a group that broke up into twos meant that we could go in and talk to
every single member that was working, in a really quick manner, educate them on
what was going on in bargaining, get them to sign the petition, get them a flier, if
necessary, get in and get out of the store.
The Respondent’s vice president of labor associate relations, Cynthia Thornton,
testified:5
Well, leading up to the fall of 2009…in Portland, we started having more reps come
into even the Portland stores, three or four reps at a time, and getting more
confrontational in their interactions with our management teams.
Q. Was this different than your prior experiences?
A. Yes.
Q. In what way?
A. Well, in prior experience, we've had problems with the Union, with union
visitation, it's been with one union rep, a union rep that will get angry, yell, use
profanity, something like that, get into an argument, and we're dealing with one
person. What was occurring was several union reps coming in at a time and not
following protocol. They either wouldn't check in or they'd keep talking to
employees at length. When management would ask them to go to lunchroom, they
would be confrontational with them.
The Respondent did not issue announcements of any kind related to visitation to its
stores, file grievances or file unfair labor practices respecting visitation issues. When store
managers contacted the centralized labor relations staff, the visitation language and the
practices described above were simply reiterated. The Union clearly perceived some type of
resistance from the Respondent’s store managers regarding visitations during this period
because the Union contacted its agents by memo on the afternoon of October 13, 2009:
We need information concerning any incidents at Fred Meyer where Management has
tried to restrict our access to Union members. This would include being restricted to the
breakroom, told not to talk to members on the sales floor, being told there was a time
limit on how long we could talk to our members, being told we couldn’t talk to members
on the sales floor, being told there was a time limit on how long we cold talk to members,
being told we couldn’t hand out fliers or petitions, anything of this sort. We need this
information jurisdiction wide.
2. October 14, 2009
As a result of a bargaining session cancellation of bargaining scheduled for October 14
and 15, 2009, the union representatives who had intended to be involved in the bargaining had
time available and the Union conducted training of agents and members for store visitation on
October 14. Reed testified:

5 She also testified to issues arising in the context of the two decertification petitions and
efforts of the Union at the stores involved in Coos Bay and Bend, Oregon, geographic locations
not included the bargaining units involved herein.
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We provided substantial training, gave everybody an update about what hadn't
happened, where we were at on healthcare because that was a big issue that we
were bargaining on, and then how they were going to go talk to their coworkers in
the store, make sure that they check in, talk to folks about what was going on, and
what the next steps were going to be. It was really an education component to
make sure that the members were fully aware of what was going on at the
bargaining table. … It was a mutual training with all of the reps and the members
that were in attendance.
Following the training the attendees were split into teams and assigned stores to visit.
Ms. Reed testified:
We had eight other teams besides the one I was on that were going to go out to the
different stores and visit with their coworkers about what was happening at the
bargaining table and work on helping get the petition signed to send the message
to management that they were serious about getting a fair contract.
Mary Spicher at that time had been a union agent for 2 years and earlier had been
an employee of the Respondent for over 30 years. At the time of the events in controversy
Spicher was the union agent assigned to visit the Hillsboro store. She and Joe Price, an
International representative based in Georgia who had been assigned to the Charging
Party, were assigned to the Hillsboro store to talk to represented employees and to get a
petition supportive of the Union’s position on healthcare signed by those employees.
Spicher and Price visited the Hillsboro store the morning of the 14th for about an
hour. Spicher testified that the two followed normal practice. During their Hillsboro store
visit the two separated and individually spoke to represented employees and asked them
to sign a petition respecting health care supportive of the Union’s position in negotiations.
Working independently, Spicher was called on her mobile phone by Price who told her
“there was a young member on the pop aisle that had insurance questions, and he didn't
have the answer. Could I please come over there and take care of it?” Spicher came over
and the employee, who was unloading a pallet of beverages in a store isle, spoke to her
about an insurance matter with Price standing in the area. While the employee started to
stop working, Spicher told him to keep working, “You can work. We can listen.” At that
point, Spicher testified store Food Manager Josh Sclch,6 came up, spoke to Price and the
two walked off through plastic doors into the back room. Spicher concluded talking to the
employee and Price came out of the back and the two headed to a different area of the
store. Neither Price nor Scich testified.
Ms. Spicher testified as to what happened next:
And at that point, Mr. Catalano came up to us, looking very angry. And he said,
I told you, you have to talk to people in the breakroom. And before I could open my
mouth to respond, Mr. Price got right in front of him and they were nose-to-nose
pretty much arguing.

6 Sclch’s name was subject to variant spellings in the record. The spelling of his name used
above is that appearing in the record testimony of his store Manager Catalano. Scich did not
testify. The purported citations to his testimony in the Respondent’s brief are the testimony of
others misattributed to Sclch. Price did not testify either. Thus, there was no record
nonhearsay evidence of the substance of the Sclch-Price exchanges occurring on October 14.
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Q. And do you recall what was said?
A. That he said we couldn't be on the floor. Mr. Price said we could. He said, no,
you can't. And, who are you? He told him who he was. And he tried to say --
Mr. Catalano tried to say something else. Mr. Price cut him off and he said, we're
done here, I didn't cut you off and you won't let me speak. And so he went his way
and we left the store.
Spicher also recalled that she also told Catalano before the exchange between Price and
Catalano that the union agents had a right to be on the floor.
Store Manager Catalano testified that during the visit of the union representatives
on October 14th, his food manager, Josh Sclch, reported to him that he had a heated “run-
in” with a union representative concerning a matter, Catalano testified he was not exactly
sure what the situation had been as reported by Sclch, but it involved the union
representative and an employee. Catalano testified he came across the two union
representatives thereafter and had a conversation with the male who was otherwise
unknown to him. He did not recognize Spicher as the union agent who was assigned to
and had regularly visited his store and its represented employees. u Catalano testified the
conversation was heated. Catalano “reiterated the policy, that they are not to be on the
sales floor, to interrupt our customers, to interrupt our job duties of the associates, and
that if they needed more time they needed to set up in the lunchroom.” He added: ”I was
just trying to get out the policy and let him know that the lunchroom was available to
them”. Catalano characterized the male union representative’s responses as interrupting
and angry and that the Union agent added:
[W]ell, what if I just bring in 15 or 20 more people tomorrow and we just do our
thing tomorrow, and I'm not sure exactly what he said there, but something along
those words of bringing in a whole group of people.
Thereafter that same day Catalano reported these events, including the possibility of 15
or 20 union agents entering the store, by telephone to u Terry Robinson in the Respondent’s
regional human resources office. He testified to that conversation with Robinson:
I don't recall my exact words, something along the lines of basically just what I said, what
had happened, and let her know that they were, you know, promising to bring in a whole
bunch of people the next day and asking for her advice on what we should do.
Q. Okay. And what did she tell you?
A. She said she'd have to call Cindy Thornton and then get back to me, so when
she did get back to me it was a step by step procedure of making sure to contact the
office if they did show up to get advice on how to handle it, but we were basically to
reiterate our policy, allow them to be in the store as long as they weren't disruptive, and
if they were becoming disruptive we were to ask them to leave. If they refused, then we
were to get the loss prevention manager on the sales floor so he could handle the
situation, ask them to leave, but keep in contact with either Terry or Cindy during the
whole time, and if they still wouldn't leave on the advice of either Terry or Cindy we were
to call the police.
Catalano also testified that Robinson at no time or indeed anyone from Respondent’s higher
management had ever told him that there was a limit to the number of union representatives
that could be in the store at one time or that they should be limited to one or two at any one
time. Ms. Robinson did not testify at the hearing.
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Thereafter that same day, Catalano testified he had a meeting with his Hillsboro
store division managers, including Dostert, the food manager, “to let them know what
I was told and what the procedure would be if that, indeed, happened the next day, and if
this group showed up this was what we were going to do.” He testified:
I went through the steps, advised them of what we want from the union reps, no
disruption. If they needed -- you know, if they weren't going to obey simply our common
practice[7] to set up in the lunchroom, then we needed to ask them to leave. If they
didn't want to leave, refused to leave, at that point it may have been necessary to call the
police.
Catalano knew that he was not going to be at the store the morning of October 15, 2009.
In his absence, consistent with normal store practice, a “Manager on Duty” or “MOD” would
have been designated either on the 14th or the morning of the 15th. In the event Food Manager
Dostert was designated and acted as MOD on the 15th.
Price and Spicher upon leaving the store after the events described above returned to
the union offices and, in the course of the evening during the training sessions that were
ongoing, reported the events that had taken place at the Hillsboro store. During the evening
store visit training sessions, the decision was taken, as part of the plan to visit many of the
Respondent’s stores with teams of agents, to send eight agents to visit the Hillsboro store the
morning of the following day, October 15, 2009. The designated union agents were: Jenny
Reed, Brad Witt, Mike Marshall, Ken Spray, Jeff Anderson, Kevin Billman, Kathy Macinnis, and
Joe Price. Because the union agents as part of a general cautionary practice anticipated there
was a possibility the Respondent would seek the arrest of a union agent or agents, it was
determined that Jenny Reed, as an international representative, would “take” such an arrest if
necessary.
3. October 15, 2009
The eight union agents assigned the previous evening to visit the Hillsboro store
gathered at the Union’s Portland office on the morning of Thursday, October 15, 2009, and
carpooled to the store arriving at around 9:30 a.m. One of the eight, at that time the Union’s
special assistant to the union president, Bradley Witt, was also an Oregon State Representative
in the Oregon House of Representatives for District 31. Among his duties as special assistant

7 Catalano testified initially to his understanding of the Respondent’s visitation policy:
They check in at the desk or with whoever the manager on duty is. They’re allowed
to walk the store, make sure the employees know that they’re in the store and
available to discuss anything they have, and then we ask them to – if they need
longer conversations to set up in the lunchroom so the employees either on their
break or their lunch will have the opportunity to talk with them.
In answer to followup questions he expanded on the policy:
Q. And is there any limit on the amount of time a union rep is allowed to talk to an
employee who's working?
A. We ask that they keep their conversations brief and not interrupt their job duties
or not interrupt their interaction with customers.
Q. Okay. And if they need to have longer conversations with the union reps, then
what does the employee do?
A. They're allowed to talk to them on -- again, on their break or on their lunch
hour…
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to the president was to supervise and direct the union agents that visited represented stores.
Witt testified that as he was driving from the union office to the Hillsboro store that
morning, he telephoned Donna Nyberg, who at that time was both Witt’s campaign manager
and a freelance photographer. He noted: “I felt that there was a potential story there. She
has credentials for the labor press. And I, frankly, was hopeful that she might be able to
get a story.” Witt continued that although he had initiated the telephone call on his own motion
and without consulting or informing anyone, he placed the call, reached Nyberg, and informed
her of the upcoming visit of the union agents at the Hillsboro store of the Respondent. She
ultimately came to the store soon after the union agents arrived, entered the store and took
photographs of the subsequent events there as matters developed. Certain of her photographs
were entered into evidence. Nyberg did not testify.
Upon arriving at the store parking lot and parking the vehicles in that lot, the union
agents entered the store. Reed and Witt took the lead role. The other six simply entered the
store and dispersed in pairs to talk to represented employees. Jenny Reed and Bradley Witt
entered the store by its main entrance and approached the store’s customer information desk8
which was staffed by a customer service representative. Witt testified he presented his
business card to the representative and asked to speak to a manager. After approximately 5
minutes, Dostert, at that time acting as manager on duty, in charge of the store, arrived at the
information desk. The two union agents identified themselves and indicated they were in the
store to talk to their represented employees. Witness versions of subsequent events that day
differed.
C. Versions of Events9
1. The Hillsboro Events to the Arrests
a. The Testimony of Reed10
Reed testified that she entered the store carrying union fliers, a petition concerning
health care she intended to offer to represented employees for signature and a sheet setting
forth the then current visitation language of the applicable collective-bargaining agreements.
After informing the customer information employee they wished to talk to the store manager,
they waited until Jim Dostert arrived. Reed and Witt introduced themselves and, in Reeds
recollection, they told Dostert they were “here in the store to do a visit and talk with members.”
Without further conversation by any of the three, Dostert, in Reed’s testimony, simply replied
without more: “We needed to go to the breakroom.” Reed testified as to what happened next:

8 The witnesses used the terms customer service desk and customer information desk
seemingly interchangeably.
9 The instant case was closely litigated. In the interest of avoiding making a long decision
even longer, the recitation of testimony noted is not the entirety of any given witnesses complete
testimony. Nor are all witnesses named or their evidence discussed. All evidence has however
been considered based on the record as a whole and in the context of the credibility and
demeanor of all witnesses.
10 Reed was designated as essential to the presentation of the Charging Party’s case and
therefore was exempt from the sequestration order issued at the commencement of the hearing
which required witness separation from the hearing room during the testimony of others. She
was present essentially throughout the proceedings.
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We had a copy of the store visitation language and handed it to Mr. Dostert. And
explained we had a contract that was in effect that allowed us to be there and that
we needed to talk to the members, educate the members about what was going on.
Q. And did Manager Dostert respond when you showed him the contract's access
provisions for visitation --
A. He did.
Q. -- permission? And what do you recall him saying?
A. He said that he did not need to follow that.
Q. Was there any further conversation that you heard at the customer information
desk that morning?
A. There was some conversation back and forth, but I can't -- because it was kind
of the heat of the moment, and he said he wanted us to go to the breakroom. He
wanted us to leave. At which point, you know, tried to hand him the contract
language again. He wouldn't take it. And he then picked up the phone to call
Cindy Thornton.
Reed recalled that she and Witt waited in place for a few minutes while Dostert spoke on
his mobile phone. At that point, Dostert looked at her and said: “he did not like my face . . . .”
at which point Reed and Witt walked away toward store employees in the store’s apparel
section including store employee Alicia England who was standing in an apparel department
check stand. Reed and Witt approached England and Reed started to talk to her about
bargaining. Reed testified as to what occurred next:
Q. Did you have any interaction with Alicia [England] at the check stand?
A. I attempted to have some interaction with her.
Q. Okay.
A. I attempted to be able to talk to her about what was going on with bargaining
and how it would affect her.
Q. Okay. Well, what happened as you attempted to speak to her?
A. Manager Dostert interjected from the left-hand side, yelling to her, you can't talk
to her, and then to me, you can't talk to her, and back and forth, you can't talk to
her. You can't talk to them.
Q. And did you happen to notice Manager Dostert's physical appearance at this
point?
A. Yeah. He was clearly angry. His face was red. His voice was raised. His
hands were clenched. He was clearly upset.
The trio: Dostert, Reed, and Witt, moved into a different area with Dostert in some anger. Reed
testified:
Q. Okay. So, you testified that Mr. Dostert said something at this point. Do you
recall what he said?
A. He said a lot, including that we were only here for people's dues money, that
people -- these members did not need a union. He asked me how much money
we'd stolen from these members. That he didn't believe in unions, that we didn't
need unions, and he wanted us to leave. He was -- there was a lot of conversation
that was happening and he was pretty agitated.
Reed testified she responded to these statements with assertions that:
[W]e were there to talk to members about what was going on with their contract.
And that I had an obligation to be there, that I wasn't there to pick a fight with him.
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That—my— it's my job to represent the members and that that's what I was there to
do.
While the three were in the periphery of the jewelry or photo/electronics area, they were
joined by Respondent’s store security agent Kurt Klein who told the two union agents that
Dostert wanted them to leave. The two declined to do so asserting a contractual right to remain.
In time three uniformed police officers entered the store and approached. Dostert told the
officers, identifying the two Union Agents Reed and Witt, in Reed’s memory, that “he wanted
us to leave, he wanted us out of there.”
One officer approached the two union agents more closely. They again asserted their
contractual rights to remain in the store and meet with represented employees. Reed recalled
she told the officer: “I had a contractual right and obligation to be there.” The officer simply
replied that Manager Dostert wanted the two to leave. Reed testified to what happened next:
I asked what would happen if I couldn't leave, because I had an obligation to be
there.
Q. And did you get a response?
A. That he would have to arrest me.
Q. Did the officers offer you any option other than arrest if you chose to remain in
the store?
A. No. I tried to have dialogue with them, and there was no conversation that
could be had.
Q. Okay. And perhaps this is self-evident but how did you know that you were
under arrest?
A. They put handcuffs on me.
Q. Did they tell you why they were handcuffing you?
A. They did.
Q. And what did they say?
A. They were arresting me for trespass.
Q. While you were being arrested, and right before that, did you happen to notice
whether there were any employees present in the immediate area?
A. There were.
Q. And do you recall approximately how many?
A. I would say there were 5 to 10.
Reed was then taken by the police from the store to the store parking lot and there
placed in a patrol car in which after about half an hour she was taken to jail, booked,
incarcerated, and later released on bail. Witt did not refuse to leave the store during this
encounter with the police but rather, while Reed was being removed from the store, contacted
the other union agents in the store and they all exited the facility.
From her vantage point in the patrol car, Reed was able to observe events from the
parking lot. She described a scene of confusion, union agents and customers trying to leave
the store, Respondent managers “kind of standing in the way”, police officers standing at the
door. She testified she observed the union agents leaving the store, heading to their cars and
leaving the area save for Union Collective Bargaining Representative Mike Marshall who was
stopped, arrested next to a car in the parking lot by police officers there, handcuffed and in turn
taken to jail, booked, incarcerated and later released on bail.
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b. The Testimony of Witt
Bradley Witt testified that he and Reed introduced themselves to Dostert as
representatives of the Charging Party and no further discussion occurred regarding who they
represented. Further he testified that Dostert did not in his initial conversation with them nor at
any other time suggest they could meet with represented employees in any location other than
in the breakroom and, after the union agents asserted their contractual rights to talk to the
represented employees on the floor, Dostert was specific in asserting “he would have us
trespassed if we attempted to meet with our members on the floor, that he would do it gladly,
and that he had heard all that crap about Union rights before.” Witt also testified that Dostert
told them: “that union dues are ridiculous, that unions are outdated and ridiculous.”
Witt corroborated Reed’s testimony respecting their contact with store cashier
employee Alice England. He recalled that the first of the three of them to speak to
England was Dostert who told her not to speak to Reed or Witt. Witt also recalled Dostert
asserting in the check stand area in the presence of store employees: "I'm tired of these
union people, union reps are jerks; I'm going to call loss control and have the Union
representatives removed from the store."
Witt testified the three – Dostert, Reed and Witt - then moved to the perimeter of
the jewelry area where he observed Dostert take out his portable phone and initiate a call
stating he wished to talk to Cindy Thornton. Witt could not hear the conversation.
After Dostert completed his telephone call, Witt testified:
Mr. Dostert said that union dues are ridiculous, that unions are outdated and
ridiculous, and then he said to Ms. Reed that, you are not anyone to me and you
cannot strong-arm people.
Q. What was Mr. Dostert's physical appearance as he was saying this?
A. He was agitated.
Q. What was the color of his face?
A. Flushed.
Q. Tone of his voice?
A. Showing contempt.
Witt approached Dostert to respond to these remarks but at that time a male store
security officer, Kline, arrived and instructed Witt not to approach Dostert “and that if I did, he
would have — he, the store security, would have me handcuffed.” Dostert walked into
another area briefly, returned and, Witt testified, “He came right up to me, into my
personal space. He got in my face. And he said that, you are all jerks and that all you do
is waste time and money.”
Within perhaps ten minutes uniformed police officers arrived at the store. Two
officers approached Dostert, Reed and Witt and others who were in the general area. One
asked Dostert if he wanted the officers to “have us removed from the store.” Dostert said
yes. Witt and Reed then commenced to show the officers the contract language which
they asserted gave them the right to be in the store. Witt recalled one officer simply said:
. . . if there was one more word out of me, meaning me, that I would be arrested.
Q. Did he state what he would do if you didn't leave?
A. Subsequently, yes.
Q. What did he say subsequently?
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A. Get out of the store, this is private property, get out now or you will be arrested.
Q. And after he directed you to leave the store, what did you do?
A. I began to leave the store.
Witt observed that Reed did not agree to leave and was handcuffed and taken to a police
car by the officers and taken away. Witt and the other union agents walked out of the
store through the entrances to the parking lot.
Witt testified: “[I] was engaged in the events that were transpiring with Mr. Dostert,
and I was attempting to write them all down as they occurred.“ Several pages of what Whit
identified as his verbatim, if abbreviated, notes on the events and statements made during the
visit were received into evidence. Exemplars of these contemporary notes include the following
excerpts of remarks of Dostert from Witt’s chronological recitation of assertions:
“Cannot talk to ees on the sales floor.”
“I’m tired of these union people. Union reps: jerks.”
“Union dues are ridiculous.”
“Unions are outdated and ridiculous.”
“You’re not anyone to me.”
“You can’t strong-arm people.”
The Respondents Hillsboro store cashier Alicia England testified respecting her
experience on October 15, 2009. On that date she was working in her usual role as a cashier at
the apparel check stand in the Hillsboro store. She described the store as not very busy that
morning and that she was working on an apparel department project at a check stand, the
specifics of which task she could not recall. At that point Union Agent Reed, and store Home
Manager Dostert, approached her work location at the same time – an unusual circumstance
which she found unsettling.
England recalled that when Union Representative Reed approached her. “She said, ‘I
have the right to speak to you, I'm from the Union’ and she handed me a paper with
something on it that was going on with the Union at that time.” She testified Dostert was
sanding right next to Reed, but she could not recall if the home manager said anything to
her.11
c. The Testimony of Dostert12
James Dostert, at the time of the events in controversy, had been the Respondent’s
Hillsboro store home department manager for 2 months but had been in Respondent’s

11 England is hearing impaired and wears a hearing aid which does not provide complete
restoration of hearing so that England augments her hearing with lip reading.
12. Dostert, like. Reed, was designated at trial by a party as essential to the presentation of
that party’s cause and therefore was exempt from separation from the hearing room during the
testimony of others. He was in fact present during the entirety of the General Counsel’s case in
chief and began the testimony referred to herein on the 9th day of the 12 day hearing.
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management at various stores for over a dozen years. His initial experience with union agents
and the Respondent’s visitation policies arose in another store in circumstances where the
Union was trying to organize unorganized employees in the store.
Dostert testified he did not have any role in, nor direct knowledge of, any of the events of
October 14, 2009 at the store other than to have attended a meeting on that day in which store
Manager Gary Catalano reported to store managers that he “had a conflict with a couple
Union representatives earlier that day,” a “little issue with some visitation.” He recalled
Catalano:
[J]ust reiterated that they have the right to walk the floor after they check in,
interact with the employees, socialize for a minute or two, hand out their business
card, and then anything lengthier needs to go to the breakroom.
In the early morning the following day, October 15, 2009, Dostert was informed by
Catalano that he was leaving to attend a offsite meeting and that Dostert would serve during
Castalano’s absence as the manager on duty (MOD), i.e., the person in charge of the facility.
Before 10 a.m. that morning, Dostert received a telephone summons from the customer service
desk employee saying two union representatives were there and wanted to check in with
Dostert as MOD. Dostert walked through a portion of the store to reach the customer service
desk. In doing so he did not observe any union agents in the store till he saw two at the
customer service desk.
Dostert recalled:13
I proceeded to the desk and walked up and saw two Union representatives, a male
and a female. I walked up and introduced myself; the male known as Brad Witt and
I shook hands. He handed me his card.
Q. Had you seen these two individuals before?
A. No, I had not. I said, you guys know the drill, that you have 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 breakroom.
At that point he testified that Reed held up a piece of paper and said that: “she had federal law
rights to talk to the associates as long as she wanted to.” Dostert responded:
I, again, reiterated the policy. I said no, that policy states that you can walk the
floor, engage with associates for a minute or two, socialize, hand out your card;
anything lengthier needed to be taken to the breakroom.
Dostert testified that the three: he, Reed, and Witt did not resolve their heated
disagreement regarding the permissible actions of union agents on the store floor. Dostert

13 In Dostert’s October 15, 2009 report to higher management of that days events he
recalled these same opening remarks as follows:
I shook hands introducing myself as the MOD. I informed Brad Witt and female rep what
I was told on Wednesday (14th) that they could approach associates and hold out their
card and they would be in the breakroom for further information. They proceeded to pull
out a piece of paper with a Supposed federal law/union contact saying they can talk to
the associates which they are working that I would be violating federal law if I did not let
Them.
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testified that Reed’s assertion of her rights were not consistent with his understanding of
store policy. Thus he testified:
Q. Was there anything about the way she described the union rights that you found
contrary to Fred Meyer policy?
A. Yes, that she could talk as long as she wanted.
When the matter could not be resolved, Dostert telephoned Respondent’s Vice
President of Labor and Associate Relations Cindy Thornton. Thornton testified respecting this
first telephone call with Dostert.
.
He called to say that he was having problems with the union reps, that they were
refusing to follow our protocol, and were waving a piece of paper in his face about
this is Federal law, and that they had a right to spend as much time with employees
as they liked, and so he was calling me to ask if things had changed, and I said, no,
they had not changed.
Q. Did you describe the policy to him at that time?
A. I went over it. I said it's the normal policy. They can walk the floor. They can
spend a few minutes with the employees on the floor but ask them to carry on their
longer conversations in the lunchroom. I said just reiterate the practice to them and
ask them to comply.
Respecting the attributions of Witt and Reed that he made various derogatory
statements respecting the Union and or union representatives, Dostert generally denied making
the remarks. While he admitted calling Witt a jerk, he denied calling union representatives
generally jerks. While admitting to holding opinions consistent with the words attributed to him,
he denied stating the Union or unions are ridiculous or outdated. In certain cases, such as the
allegation he called Reed stupid or ridiculous, he suggested that he simply called the sheet of
paper she repeatedly proffered to him ridiculous.
Dostert described subsequent events and the interchange with employee Alice England:
I start drifting again down towards apparel. I figured maybe if I went towards the
doors, the exit, I could minimize the situation. Ms. Reed said she had the right to
talk to employees as long as she wanted and walked briskly towards the apparel
check stand where there was an employee standing. She said I'm going to talk to
this employee right here.
Q. What did you do next?
A. I followed her over. Ms. Reed got the attention, the cashier's back was to her,
but she turned around and stopped what she was doing to try to talk to her. I did
tell the associate not to talk to her, that she was busy and she needed to keep
doing what she was doing.
Q. What was the associate doing, do you know?
A. A project of some type. I'm not sure.
When Reed’s interactions with. England were thwarted: “I think the cashier was kind of
confused about the whole situation, so Ms. Reed kind of gave up on talking to her,” the three –
Dostert, Reed and Witt - drifted to another area within the store without resolution of their
differing positions. Witt and Dostert had a “small conversation” regarding the Union’s purpose in
talking to employees, the virtues of the Union’s positions and Dostert’s general disagreement
with the Union’s position.
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Dostert testified that during the entire time of the dispute and the incident with England,
neither Reed nor Witt attempted to talk to other employees nor did they leave him and go to
other parts of the store in an effort to talk to employees. From this point on however, Dostert
observed and received in store reports that other union representatives were talking to
employees and trying to get them to sign a petition. Dostert called Thornton a second time:
I called Cindy back, let her know that the situation was not going to resolve itself
and what should I do next. She told me to call the loss prevention manager, have
him come out and help me by explaining the trespass rules, and ask them to leave.
Thornton testified:
[Dostert] called back again and said that they were still refusing to comply, telling
him that he was in violation of Federal law, and that there were more union reps
there and was asking what he should do.
Q. When you say more union reps, what did that mean to you?
A. Well, he said there were multiple union reps there. He wasn't quite sure, and I
can't remember the number.
Q. Was it more than one?
A. Yes.
Q. What did you advise him during this conversation?
A. I told him to again reiterate our policy, just ask them to comply with the policy,
that if they didn't comply with the policy, to ask them to leave.
The Respondent’s store security agent arrived, Dostert testified that “he proceeded to
explain to Witt and Reed the trespass rules and asked them to leave. Dostert described what
happened next:
And then I did receive a phone call from Terri Robinson, our regional HR director, and
I was on the phone and I was saying -- that she was asking me what was going on. And
I said, well, the Union representatives think they can talk to associates as long as they
want. And that's when Mr. Witt proceeded to get in my, right next to my face and yell
"liar" over the phone. And I stepped back a few feet. He proceeded to follow me and
kept reiterating "liar," yelling it. I again stepped back, telling him that I'm trying to have a
conversation, back off. And he proceeded not to. So, then, I stepped back again, and
I asked Mr. Kline to step in between us so I could actually finish my phone call.
Q. When he was calling you a liar, was that in a normal tone of voice?
A. No, he was yelling.
Q. How long did your conversation with Terri Robinson last?
A. Thirty seconds, maybe.
Q. What happened next?
A. Mr. Kline was out there then and, you know, he was again reiterating that they
needed to leave or they will be trespassing.
Dostert again telephoned Cindy Thornton. “I just explained to her, it was real brief, that it
was out of control. What do you want me to do? And she said go ahead and call the
police.” Thornton described the call:
[Dostert] called back again and said they were refusing to comply, and wanted to
know what to do. I said, well, if they're not going to comply, you can ask them to
leave, to contact the loss prevention manager and he'd have to contact the police
to ask them to leave.
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Dostert then directed Kline to call the police and he did so. After the police arrived, the union
agents were asked to leave, Reed refused to leave but the other union agents left the
store. Reed was arrested by the police and taken to a police car.
d. The Mid-Event telephone call between Thornton and Barkeley
We live in a world where seemingly every individual has and uses mobile communication
devices. Through the calls noted above and through other calls not specifically set forth herein,
the participants to the events of October 15 to a large degree kept their principals informed of
ongoing developments.
During the events, the Union’s International Union’s vice president, Shaun Barkeley,
telephoned Thornton. Thornton described her conversation with Barkeley:
He called and said to me, I understand that you are ordering the union reps out of the
store at Hillsboro, and calling the police to have them arrested. And I said, we have
multiple union reps at the store and they're being disruptive, and we've asked them to
leave. He said that he had sent those union reps in there and I asked him why he sent
so many union reps in there, and he said because of something that had happened the
day before, and I said, if something had happened the day before, why didn't you just
call and talk about it, and he said that the union reps had a right to be there and this is
how he handled things, and I said, well, they weren't there just servicing the store.
They're being disruptive and he said he had trained the union reps and that they were
trained to not interfere with their work, and that they could talk to the employees as long
as they wanted, as long as they didn't interfere, and that they were trained to walk away
if a customer walked up and to smile. And I said, well, I appreciate that, Shawn, except
that that's not our practice. Our practice is they just come in, give them their card and
longer conversations take place in the lunchroom, and that while you may tell them to be
nice and to step back from a customer, customers aren't going to approach people that
are talking to someone else, and he said, well, they had a right to be there and that if this
is how I was going to handle things, he could have 15 reps there, and I said to him, I can
tell you're getting very upset, and I said this really doesn't have to happen this way. We
should just sit down and talk about it but right now it's disruptive at the store and they
need to leave, and he said, well you do things or he said, he said, you do what you have
to do and I'll do what I have to do. And that was the end of the conversation.
Barkeley did not testify.
Thornton issued and caused to be distributed to all represented employees a letter on
company letterhead dated, October 22, 2009, that addressed the event of October 15. That
communication contained a paragraph with bullet points some of which are set forth herein
below:
Usually, the union has one or two representatives in the store. Last Thursday, eight to
twelve representatives descended on one store, some local some from out of town.
Here’s what happened next:
o The reps held lengthy conversations on the sales floor, asking Associates to read
and sign a petition which Associates were trying to serve Customers.
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o Our manager asked them to observe the long-standing practice of talking more
in-depth with Associates in the breakroom.
o The Union representatives refused to do this. As you can imaging [sic], having
that many representatives on the floor talking to Associates was disruptive.
o They were asked multiple times to use the breakroom for their lengthy
conversations, and were told that if they would not they would be asked to leave.
They repeatedly refused.
2. The Arrests
The arrest of Reed has been initially addressed in the recitation of her testimony
concerning in-store events, supra. So, too, the above discussion brings the other seven union
agents up to the point of their departure from the store into the store parking lot.
Michael Marshall14, then the Union’s assistant director of collective bargaining, travelled
to the Respondent’s Hillsboro store on the morning of October 15, 2009, in Union Secretary
Treasurer Jeff Anderson’s vehicle with Union Agent Ken Spray. The car was parked in the store
parking lot and the three union agents entered the store with the other agents teaming into
pairs. Marshall paired with Ken Spray and walked the store visiting briefly with represented
employees. Marshall, as the other union representatives in the store, came to be aware of the
ongoing discussion and dispute involving Reed, Witt and Dostert, the arrival of the police in the
store, the arrest of Reed, and the presence of other police officers on the grounds. He left the
store through the doors he had entered debouching into the parking lot.
Once in the parking lot, Marshall testified he went to Jeff Anderson’s vehicle located in a
parking slot in the parking lot. He found the car locked and stood there inasmuch as it was
Anderson’s vehicle, Anderson had the only key to the car and he had not as yet arrived to open
the car so that Marshall could enter it. At this point Marshall recalled that Dostert who was in
the parking lot yelled to Marshall to cause the photographer to stop taking pictures and Marshall
answered that the photographer was not a union agent or employee.
At that point the police sergeant apparently in charge of the police on site turned his
attention to Marshall and asked him to leave the area specifically telling Marshall he needed to
leave. Marshall testified he explained his quandary to the officer, i.e. that he did not have the
keys to the car and therefore could not enter it until its owner, Anderson, arrived. Marshall
testified as to what happened at that point:

14 Marshall testified respecting Joe Price’s report at the October 14, 2009, union agent meeting
concerning his experience at the Hillsboro store and the Union’s reaction to those events:
Well, we had had a—one of our International reps, Joe Price, had gone into the store
with one of our, one of our local field reps the day before and had been told he was to
be confined to the breakroom, could not be talking to members on the sales floor. We
had—we were trying to update our membership on the status of bargaining and what
was going on. It was important that we -- that members knew what was going on, so
we went in to get the message out, and to make sure people knew about the
healthcare petition and had an opportunity to sign it.
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The two officers that Jeff [Anderson] was speaking to, which were probably a good
50 feet away, came running across the parking lot, told me to stop. One each
grabbed my hand. When the one grabbed my hand on the left side, knocked my
notebook out of my hand to the ground. And the -- as they were grabbing, grabbed
my hand, started to handcuff me, the sergeant said, all you need to do is get off the
property. You could even stand on the sidewalk somewhere. I said I'm willing to
do that. I was just trying to get in the car over there. And one of the officers that
had grabbed my hands to handcuff me said, you don't listen to our sergeant, you're
going to jail.
Marshall was arrested, cuffed and taken into custody. Marshall placed Dostert as approximately
20 feet away during his arrest.
Daniel Clay has been union president since 2008. On October 15, 2009, he was in his
office in Tigard, Oregon, when he was informed by telephone that there was trouble at the
Respondent’s Hillsboro store. He knew at the time of the call that the Union was visiting that
store that very morning. He drove to the Hillsboro store and drove into the store parking lot.
There he observed quite a few people: store managers, police and police cars. He also saw
Reed in a police car and Mike Marshall cuffed and leaning up against a police car in the process
of being arrested. Clay testified he left his car and approached the police officer he assumed to
be in charge who was talking to store Food Manager Dostert.
Clay described the subsequent events:
Q. What did you say to the officer?
A. I asked that he not be arresting people, and told him that I was the one from the
Union that was responsible for assigning people to come out and talk and asked
that he not arrest people.
Q. Did the police officer respond to what you said?
A. Yes.
Q. What did he say?
A. Basically, it didn't matter.
Q. Did you say anything else to the officer?
A. Yes.
Q. And what did you say?
A. I talked to him about us having a contract that gave us a right to be there and
talk to people. I talked to him about the National Labor Relations Act and asked
that he look at the Federal law before he arrest people.
Q. Did he respond?
A. Yes.
Q. What did he say?
A. He said what mattered to him is whether or not the manager wanted me there.
Q. And what happened next?
A. He turned to the manager and said do you want him here.
Q. And the manager again is -- this is the same manager, Jim Dostert?
A. Yes.
Q. Did Mr. Dostert respond?
A. Yes.
Q. And what did he say?
A. Something along the lines of no, he doesn't have the right to be here.
Q. And what happened next?
A. The officer turned back and said you need to leave.
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Q. Did he say why you needed to leave?
A. Because I wasn't wanted there by the management of the premises.
Q. Did you respond to what the officer said?
A. Yeah, I reiterated that I needed to -- he needed to look at the Federal law and
the National Labor Relations Act.
Q. Okay, and did the officer respond?
A. Yeah, he basically said no more discussion, or else I was going to be arrested, I
guess.
JUDGE ANDERSON: Do you remember the words that he used, sir?
THE WITNESS: No, I don't think it was that clear. I think it was something like
another word, and you're done or something like that.
JUDGE ANDERSON: All right, thank you.
Q. BY MS. FIORIANTI: And what happened next?
A. I again tried to talk to him about the rules, and he called over an officer, and I
was taken to a police car.
Clay testified he had at no time ever entered the store or attempted to enter the store on that
occasion.
Dostert also testified concerning the three arrests as he observed them. Dostert
described what happened next:
I needed some air, so proceeded to walk outside. I'm standing on the sidewalk,
and I observed Mr. Marshall, I found later that it was Mr. Marshall, out farther in the
parking lot behind a car having a discussion with an officer.
Q. Were you in a position to overhear that discussion?
A. No, I was not.
Q. Did you see — can you describe what you saw?
A. I saw Mr. Marshall get upset and look combative to me. He kind of stood there
with fist clenched, and then shortly after that he was arrested.
Q. Would you describe the nature of his arrest?
A. I just saw him get arrested and escorted to a car, so I have no idea why.
Dostert then observed Union President Clay in the parking lot. Dostert testified:
[Clay] walked up. I was standing behind the officer a few feet, and the officer was
up by his car, and Dan Clay walks up and goes, officer, these people are under my
direction. If anybody should be arrested, it should be me. The officer proceeded to
say no, they are being arrested on their own actions, and that you need to leave.
And Mr. Dan Clay again went, well, no, these are under my directions. If anybody
should be arrested, it should be me. The officer said if you say one more word, you
are going to be arrested also. And Mr. Clay proceeded to talk, and he was
arrested.
The three union agents: Reed, Marshall, and Clay, were each arrested for trespass,
removed, incarcerated, booked for trespass and released on bail later that day. The terms of
bail release prohibited the three bailees from contact with one another or contact with or
visitation of the Respondent’s property. These restrictions were modified on
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October 27, 2009, at the arraignment. Legal representation was secured and counsel
represented the 3 during a process in which ultimately the charges were dropped.15
D. Analysis and Conclusions
1. The Visitation/Arrest Allegations
a. Narrowing the Issues
Before turning to the disputed events herein, it is well to consider what is and what is
not in dispute and, importantly, precisely what aspects of the disputed events are necessary to
resolve in order to reach conclusions respecting the allegations of the complaint. Initially then,
the General Counsel’s legal prima facia case must be considered in light of the elements
disputed and undisputed in the case.
First, the General Counsel and the Union argue and the Respondent does not seriously
contest the legal proposition that nonemployee Union representatives meeting with employees
on an employer’s premises to discuss matters related to the employees' terms and conditions of
employment pursuant to a contractual access clause are engaged in activities protected by
Section 7 of the Act. Turtle Bay Resorts, 355 NLRB No. 147 (, 2010), adopting in full the earlier
set aside decision reported at 353 NLRB No. 127, slip op. at fn. 6, 32-33 (2009). In agreement
with the argument and the cited case, I find an employer violates Section 8(a)(1) by evicting
union representatives from its premises, and by summoning law enforcement officials to remove
or assist in removing them, when the union representatives have a contractually-established
right to be on the premises to meet with the represented employees. Turtle Bay Resorts, 353
NLRB No. 127, slip op. at 1, fn. 6, 32-33 (2009); Frontier Hotel & Casino, 309 NLRB 761, 766
(1992), enfd. sub nom. NLRB v. Unbelievable, Inc., 71 F.3d 1434 (9th Cir. 1995). Such conduct
violates the Act because it interferes with union-related communications with employees and
directly restrains employees from engaging in the union activity of communicating with their
bargaining representative. Turtle Bay Resorts, , 355 NLRB No. 147 (August 27, 2010), adopting
353 NLRB at slip op. at 32-33; Frontier Hotel & Casino, 309 NLRB 761, at 766.
The parties do not dispute the existence and applicability of the contracts’ contractual
visitation clauses and the parties’ practice respecting those clauses to the October 15, 2009
events at the Respondent’s Hillsboro store. They do however dispute and closely litigated the
conduct of the parties’ agents respecting whether or not the relevant contract language and the
practice concerning them was complied with by the Union’s and the Respondent’s agents on
that occasion. The General Counsel and the Union argue the Union agent’s actions fell within
the contract language and applicable practices; the Respondent argues the Union agents’

15 The General Counsel alleged that the Respondent further interfered with the 3 bailees
Sec. 7 rights by co-opting the objectivity of the prosecutor’s office through the conduct of a
member of the law firm of counsel for the Respondent who was at relevant times a legal advisor
to the prosecutor’s office. I dismissed that allegation at the end of the General Counsel’s case
finding there was insufficient evidence to overcome the presumption of the regularity of the acts
of public officials in the absence of clear evidence to the contrary. See, e.g., Lutheran Home at
Moorestown, 334 NLRB 340, 341 (2001); and Crow Gravel Co., 168 NLRB 1040, 1044 fn. 24
(both relying on U.S. v. Chemical Foundation, Inc., 272 U.S. 1, 14–15 (1926) (presumption of
regularity attaches to official acts of public officers in the absence of clear evidence to the
contrary)). Calyer Architectural Woodworking Corp., 338 NLRB 315 (2002) at 315 fn. 1.
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conduct did not. The factual issue is plain and is central to the case. The legal issue to be
applied to the resolved facts is whether or not the union agents conduct rose to misconduct
which rendered their visit to the Hillsboro facility on October 15, 2009 unprotected under the Act
and whether or not the Respondent’s actions taken against the union agents was not improper
as a result of that misconduct.16
Accordingly, the parties’ practices in applying the contract language at issue must be
considered and the events of October 15 closely scrutinized to determine what in fact was said
by the union agents respecting what the union agents intended to do, what conduct they
engaged in, and what the Respondent’s agent Dostert told them in response respecting what
conduct he would allow and what conduct he prohibited.
b. The Contract Language and the Parties’ Past Practice
On October 15, 2009, the following contract language was in place and applied to the
Respondent’s Hillsboro store:
It is the desire of 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 not to interfere with service to customers nor
unreasonably interrupt employees with the performance of their duties.
This contract language had been in place for a significant period of time. Thus there has been a
period during which the parties have evolved a practice of applying its terms. In considering the
evidence regarding practice, I received evidence concerning but here heavily discount practices
and events occurring in organizational contexts. I rather have focused on situations and
practices that concerned the Union’s visitation of currently represented employees whose
represented status was not in contest during the time of the visits. The Hillsboro store in
October 2009 was not experiencing an organization campaign or a decertification campaign and
the visitation process dealt with employees whose represented status was not under contest or
dispute.
Relevant to this case are two aspects of the parties’ visitation practices. Each devolves
from the interpretation of the final sentence of the contract language: “All contact will be handled
so as not to interfere with service to customers nor unreasonably interrupt employees with the
performance of their duties.” First: when a union agent contacts a represented employee on
the store floor when the employee is on the clock, how long and in what circumstances may the
contact continue before it unreasonably interrupts the employee in the performance of his or her

16 The Supreme Court made it clear almost 50 years ago in Labor Board v. Burnup & Sims,
Inc., 379 U.S. 21 (1964), with myriad Board and court cases following thereafter, that regardless
of motive, an employer who discriminates against individuals who did not engage in misconduct
and were engaged in protected activities, tends to discourage Sec. 7 activity and therefore
violates Section 8(a)(1) of the Act. 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.
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duties? Second, are their limits under the contract language to the number of union agents
undertaking in store visitation of represented employee at a given store at any one time?
As to the first issue: length of in store visit employee contacts, the parties higher level
witnesses recited essentially the same formula as to what the contract language meant and how
the language had been applied by the parties. Essentially all these witnesses agreed that union
representatives undertaking store floor employee visitation should avoid any and all contact with
employees in situations where employees were dealing with store customers or situations
where an employee should be assisting such customers. Further, virtually all who testified
agreed that union agents should limit their store floor visits with represented employees to a
reasonable time and, if further communication and time was necessary to complete or followup
on such a visitation, the employee and Union agent could go to the employee breakroom,
arrange to meet when the employee was off duty or make other arrangements. There was
some witness difference of position in the application of the contract’s “reasonable” standard
both in stating the rule and in applying it to various described circumstances. Thus the union
witnesses tended to view the amount of time for employee-union agent store floor conversations
was more generous than Respondent’s representatives did in various settings. But more
generally, the parties simply viewed the time allowed as a minute or two or possibly longer
depending on the circumstances. Importantly to the issues in dispute herein, no interpretation
of the rule and/or description of its historical application offered by the Respondent’s agents, let
alone the Union’s agents, suggested that there was no time allowed beyond the time necessary
for the union agents to introduce themselves and present business cards. Thus, there was no
dispute and I find that union agents and employees on the store floor, within the limits noted,
could discuss representational matters.
The second issue under the contract and practice: the permissible number of union
agents in a store at any one time, was not so clearly delineated either in principle or in practice.
While there was some evidence respecting the issue as to other employers under the contract
in organizational settings, as noted supra I do not regard that context as relevant to the instant
case. The Respondent asserted, and the evidence supports the view, that historically one union
agent doing regular rounds, typically visited stores alone or, in the infrequent circumstance
when a Union agent was training a replacement or a new agent, in pairs. Other than in an
organizational context: i.e. a pending RD petition or organizational efforts by the Union as to
additional units within a partially organized store, the parties have not had a formalized
disagreement regarding how many agents could visit a store for visitation purposes at any one
time. The Union argued that it was not inherently unreasonable to visit a store in larger
numbers than one or two Union agents when the Union needed to inform the represented
employees of some matter or matters concerning employees’ rights. In a multiacre store,
argues the Union, three or four pairs of union agents may not be held to be an unreasonably
large group. The Respondent argues to the contrary.
c. What Happened on October 15, 2009?
As set forth above there is no dispute that eight union business agents carpooled to the
Respondent’s Hillsboro store arriving at mid-morning on October 15, 2009, entered the store
and fanned out in pairs to talk to represented employees, pass out union flyers to those
employees and offer the employees a petition designed to encourage and record employee
support for the Union’s position in contract negotiations. It is similarly undisputed that the pair of
Reed and. Witt, following the letter of the visitation protocols, came to the Hillsboro store
customer information station and asked that the store manager or MOD be called. Finally, there
is no dispute that Dostert acting as the MOD was notified by telephone of Reed and Witt’s
presence, came to the information station, met the two and, at a time when Dostert had no
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knowledge of the presence of other union agents in the store, commenced what was to become
a running conversation with Reed and Witt.
That conversation, with the subsequent limited participation of employee Robinson and
the later participation of security officer Kline and its conclusion with the arrival of police officers,
and the arrest of Reed, is in dispute. It is clear the Union in Reed and Witt and the
Respondent through Dostert came to an immediate and thereafter uncompromised dispute
regarding the extent and nature of the Union’s visitation rights in the store from the very
first few words of the exchange between Reed and Witt and Dostert.
Each conversation participant testified respecting the event. Evidence of earlier events,
conversations and telephone communications were offered into evidence as well as
contemporaneous notes, a subsequent management report and an employer unit-wide
communication to employees describing the event. The parties entered into the record a
plethora of direct and tangential evidence, including hearsay and other evidence not offered for
the truth of the matter asserted, respecting this extended conversation beyond the main body of
evidence referred to above. In essence, these October 15, 2009 events were the heart of the
three weeks of trial in this case.
All the above described evidence, along with the testimony of the witnesses in light of
their credibility as demonstrated in part by their demeanor during their testimony, and in the
context of the record as a whole which, as noted supra, involves considerable additional
evidence from other witnesses as well as the arguments of the parties has been considered in
making the findings which follow. Such factual resolution is the classic jury function which,
under the Act, falls to the administrative law judge.
In making the findings of fact concerning this dispute below, I wish to emphasize that the
focus of this inquiry, the critical element of the conversation as I have characterized it, is what
the on site union agents, Reed and Witt, and the on site agent of the Respondent, Dostert,
said and did respecting the Union’s visitation rights that day. The resolution of that question in
the context of the instant case, will essentially resolve this aspect of the complaint. The other
elements of the record testimony, other evidence and argument, was considered in these
regards, but primarily for the purpose of resolution of the factual question described. This is so
because, as will be discussed below, the internal communications between and among the
Union’s agents or between and among the Respondent’s personnel, and the other events
noted, on the facts of this case, do not have conclusive or even substantial weight in resolving
the matter in controversy. This is so because, as discussed above, it is not what others on the
Union or the Respondent’s side believed happened at the Hillsboro store on that occasion, or
what might have been reported to them as having happened there that resolves this dispute.
Rather it is what in fact was said by the three between and among themselves before the
exclusion and arrests that determine the propriety of the events put in issue by this aspect of the
complaint.
The Government contends a proper union request for the opportunity to exercise
protected activity, i.e. the undertaking of contractually-provided union visitation rights, was made
at the store to Dostert by Reed and Witt and that proper request was wrongfully denied by
Dostert who prohibited the visitation, interfered with it and ultimately caused the Union agents to
be excluded and three to be arrested. The Respondent argues the Union from the very
beginning of the day so overreached the traditional contract visitation rights and practices that
applied to the Hillsboro store on October 15, 2009, that the Union simply never sought to
engage in or offered to engage in protected conduct. In the Respondent’s view all else that
followed was therefore not improper and not a violation of the Act. While there is considerable
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Board law applicable to cases of this type and of course law controls, the issue here in my view
is one of fact: What happened?
The Union argues its agents simply asked for permission or announced an intention to
Dostert that they were in the store to engage in contractually allowed, consistent with practice,
store visitation, only to be told ab initio by Dostert in Reeds recollection: “We needed to go to
the breakroom.” Thus, the Union’s view of the facts is that, from the onset and without the
Union agents ever describing the specific actions they intended to undertake in visiting with
employees, and before they had undertaken any actions with employees, and before Dostert
knew there were more than just the two Union agents in the store, Dostert peremptorily denied
the two Union agents the right to visit with employees in any fashion whatsoever on the store
floor. And thereafter he maintained that position and caused the exclusion and arrest of the
Union agents.
The Respondent contends the Dostert/Reed/Witt conversation was entirely different.
Thus Dostert testified he told the two Union agents: “I said, you guys know the drill, that you
have 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 breakroom.” Dostert testified further
that Reed responded “that she could talk as long as she wanted” with employees on the
store floor and that things simply went downhill from that point with the Union agents never
being willing to follow contractual practice respecting visitation.
Restating the crux of the factual issue as defined above, the General Counsel and the
Union marshal all their evidence to argue and advance the proposition that Witt and Reed
announced to Dostert they were: “here in the store to do a visit and talk with members” and that
Dostert simply replied the Union agents “needed to go to the breakroom.” The Respondent to
the contrary emphasizes its evidence in support of the proposition that Dostert met with Reed
and Witt and, upon learning of their desire to visit employees, correctly told them they had a
right to walk the floor, engage with the employees for a minute or two, hand out their
cards, but that anything lengthier than that needed to move into employee the breakroom.
In the Respondent’s view the Union agents responded that they could visit employees on
the floor for as long as they desired.
Everything hangs upon and falls naturally from which version of these events is
sustained. If the Union argument is credited, the Respondent’s agent ab initio denied Reed and
Witt their right to talk briefly to represented employees – a right that clearly extends beyond the
very limited time necessary for identification and presentation of a Union agent’s business card
to an employee. Since Dostert in this resolution denied the two Union agents their contractual
visitation rights before he even knew there were other Union agents in the store, there is no
question he denied them their rights for any reason based on their actions up to that time or,
since he did not know there were more than two agents in the store, because he believed there
were too many Union agents in the store. This being so, Dostert was contravening the contract
and the essentially undisputed practice of the parties under the terms of the contract, without
justification, and was therefore improperly restricting the Union in its representation activities in
violation of Section 8(a)(1) of the Act.
If the Respondent’s view of events prevails, from the onset the Union agents took the
overreaching position they had a right and intended to exercise that right to talk to store
employees in the store in the floor without limit as to time. The Respondent argues correctly
that, if the lead Union agent announced to the store Manager on Duty an intention that she and
her Union agent colleagues were going to talk without limit in time to the store employees on the
floor, this intended conduct could be viewed as a violation of the contract’s terms and the
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practices of the parties respecting those terms. In such a circumstance, the Respondent argues
and I agree, Dostert could properly deny the Union agents’ access to the employees on the
store floor and insist that the Union agents use the employee breakroom for visitation or leave.
For the reasons set forth in greater detail below, and based on the record as a whole,
including the arguments of the parties and my credibility resolutions which are based in
significant part on my observation of the witnesses, I, in essence, credit the testimony of Reed
and Witt and discredit the testimony of Dostert where their testimony differs on this primary
question. This being so, I find that from the onset of the Reed/Witt/Dostert conversation through
the expulsion of the Union agents from the Respondent’s premises and the associated
invocation of police authority, the Respondent at all times denied the Union its contractual
visitation rights as established under the contract and past practice. For the reasons set forth
below, I credit the General Counsel and the Union’s view of what occurred – essentially Reed
and Witt’s version of events – and discredit the Respondent’s view of what occurred –
essentially Dostert’s version of events.
In resolving the conflicting testimony concerning this important three-way conversation,
primarily a credibility resolution respecting the starkly inconsistent testimony of Dostert versus
Reed and Witt, I considered the fact that both Reed and Dostert were present in the courtroom
for the testimony of other witnesses, but other witnesses were not. To understand how this
came about in the instant case, it is necessary to consider the trial practice of sequestration of
witnesses. Sequestration of witnesses, as provided by Federal Rule of Evidence 61517 which
applies to NLRB unfair labor practice hearings, is the act of separating witnesses from the
courtroom during the testimony of others and keeping the separated or sequestered individuals
from learning of the content of the testimony of other witnesses, so that the testimony of those
other witnesses does not influence the testimony of the sequestered witnesses. This practice,
which may occur on the motion of any party, has long been recognized as a means of
discouraging and exposing fabrication, inaccuracy, and collusion respecting testimony.
6 Wigmore §§ 1837-1838. See also the advisory notes to Federal Rule of Evidence 615.
There was a sequestration order in place in the instant matter. All witnesses were kept
separate from the trial proceedings during the testimony of others with two exceptions.
Ms. Reed and Mr. Dostert were named by the two sides as essential to the presentation of the
parties’ case and the two were therefore properly exempted from sequestration and were in fact
present in the courtroom essentially for the entire proceeding. Thus, in listening to the testimony
of others during the three week trial, they were exposed to multiple versions of events and
circumstances as advanced by counsel and the other witnesses during the trial.
Since both Reed and Dostert gave testimony concerning the same disputed
conversation and events of October 15, 2009, after having listened at great length to the
versions of other witnesses about those same events, there was a possibility that their later
testimony – especially that testimony that came later in the trial after the bulk of the other

17 Federal Rule 615, Exclusion of Witnesses, states:
At the request of a party the court shall order witnesses excluded so that they cannot hear
the testimony of other witnesses, and it may make the order of its own motion. This rule does
not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of
a party which is not a natural person designated as its representative by its attorney, or (3) a
person whose presence is shown by a party to be essential to the presentation of the party’s
cause.
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testimony was received - was informed by the content of the other witnesses testimony rather
than just based on their own pre-testimonial memory of their experiences. For that reason any
evidence of these two witnesses versions’ of events memorialized closer in time to the events
themselves is of special value because it predates these individuals exposure to the others
testimony. Thus evidence respecting these witnesses pre-trial NLRB affidavits and Mr.
Dostert’s October 15, 2009 written report to higher management of that day’s events,
Respondent’s Exhibit 36, is of special worth.
A portion of Dostert’s report, Respondent’s Exhibit 36, states:
At approximately 10:00 am the CID desk called me to have me come to the desk as the
union was letting the MOD [know] they were on site. I me[]t them at the desk and shook
hands introducing myself as the mod.[sic] I informed Brad Witt and female rep what [I
was] told on Wednesday, (14th) that they could approach associates and hand out their
card and they would be in the breakroom for further information. They proceeded to pull
out a piece of paper with a Supposed federal law/union contract saying they can talk to
the associates while they are working that I would be violating federal law if I did not let
Them.
I found that document to be of significant weight because it was prepared at a time when Mr.
Dostert was recording what he recalled he, Witt and Reed had said earlier that day and was
doing so when his recollection was both fresh in his memory and when it was also untainted by
any notions of what he should have said rather than what in fact he did say. Thus, this written
version of what was said was uninfluenced by the opinions of testimony of others, such as
counsel, the Respondent’s higher management, or other witnesses, about what the policy was
and how he described it to Reed and Witt.
Critically, Dostert’s report tracks more closely Witt and Reed’s version of this important
initial exchange, i.e. the Union’s presence and Dostert’s initial limitation and caution to the Union
agents as to what they could and could not do: “they could approach associates and hand out
their card and they would be in the breakroom for further information.”
Consistent with and essentially corroborating this version of events is the undisputed fact
that Dostert would not allow the Union agents to speak to a represented employee on the store
floor at all – for any length of time - when they tried to do so. Thus, it is undisputed that when
Reed approached employee Robinson, who was located on the floor at a closed cash register
undertaking a project of some unidentified type, Dostert admittedly intervened and instructed
England with some passion not to talk to Union agent Reed.
An important, indeed critical, element in my credibility resolution here is my
determination, based on my observation of the witnesses’ demeanor during their testimony,
that Reed and Witt were making an honest effort to testify, and were in fact testifying from their
memory of events of that day. My impression of Mr. Dostert’s testimony was much less for two
reasons. First, I found his demeanor less persuasive in that his testimony was more
adversarial. Thus, it seemed to me Dostert took his role as witness to be part of a contest in
which he was an advocate as well as a source of information. I formed the impression that Mr.
Dostert was more influenced in answering the questions presented by what he thought would
better serve his employer’s interests and his own rather than simply what he recalled was said
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and done. In answering a range of questions, including his denials and parsed denials18
respecting disparaging remarks attributed to him, Dostert’s testimony was inconsistent with the
contemporaneous notes taken by Witt who recorded Dostert’s remarks. I found Witt’s testimony
about making his notes credible and the notes themselves to be persuasive evidence of
Dostert’s statements. Further, as noted in his testimony generally, I found Dostert’s denials of
the remarks attributed to him which I have found in fact were made by him suggested that he
was not searching his memory so much as simply denying having said the things attributed to
him that he did not believe would favor his or his employer’s positions. In consequence of all the
above, I discredit Dostert’s testimony to the extent it differs from that of Reed and Witt.
Second, I also think there is a substantial possibility that Mr. Dostert at least during the
events themselves and for a period thereafter, simply did not notice or focus on the critical
distinction between: 1) a visitation policy which allows Union agents to identify themselves to
represented employees, but no more, with any additional conversation to take place off the floor
such as in the breakroom and, 2) a visitation policy which allows Union agents to identify
themselves to represented employees and to talk to those employees on the floor for an
additional reasonable period of time – perhaps one or two minute depending on circumstances.
This element could explain the seeming inconsistency in the telephonic reporting Dostert
engaged in during the events and the findings I have made here respecting what he did in fact
say to Reed. My findings here however are not reliant or dependent on this being so.
The running conversation of the three – Dostert/Reed/Witt, as I chose to label it, was
lengthy, moved several times within the store and, as noted above, 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. In the event,
passions ran high. Things were confused. Passion, anger and stress can cloud the accurate
formation of an individual’s memory of events or even an impassioned participant’s original
perception of events. Nonetheless, and concerning which I have carefully considered the
conflicts and the entire record on the issue, I am convinced and find that the General Counsel
has sustained his burden of establishing that the Union through its agents Witt and Reed,
sought and announced to Dostert, as they testified, a desire and an intention to do no more that
talk briefly with the Union’s represented employees on the shop floor and did not directly or
indirectly state or suggest otherwise that they commanded the right or intended to undertake to
talk to those employees on the shop floor without limit as to time.
Further, I find and conclude on the same basis that Dostert simply announced in answer
to that request/intention to visit with employees on the floor that the two agents must limit their
contact with employees on the store floor to identification and introductions only with all
additional communication between agent and employee required to be off the floor in the
breakroom. Thus, I find Dostert, in contravention of the contractual visitation policy, denied the
proper visitation request of the two Union agents - and later their six colleagues as the events
unfolded – and in so doing denied the Union its contractual right to communicate with the
represented employees in the store for a reasonable time and in reasonable circumstances.

18 Thus for example Mr. Dostert denied making disparaging remarks concerning the Union,
union policies or agents, but thereafter conceded he might well have called Witt a “jerk”, just not
Union agents generally jerks.
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d. Analysis of the Visitation Issue
(1) Certain of Respondent’s defenses rejected
The Respondent argues that the Union in effect planned the October 15, 2009 event,
brought its own photographer, deliberately provoked the Respondent’s reaction by it conduct on
October 14, 2009, by bringing eight agents into the store on October 15, 2009 and by refusing
to vacate the store after being asked to do so. The Respondent suggests this entire Union
course of conduct was all a ruse designed to gain press notoriety in support of contract
negotiations and to establish the “fighting” aggressiveness of a new Union administration. The
Union and the General Counsel dispute the asserted defense.
I have considered the Respondent’s evidence and arguments in evaluating the credibility
of the witnesses herein. I do not find there is sufficient evidence to suggest that the Union
institutionally or by preplanning decided to have a photographer attend the Hillsboro store. I
credit Witt’s testimony, above, that he did so individually as he described. Neither do I find that
the Union had a plan in place to provoke an arrest or arrests to better establish its fighting trade
union bona fides. I do agree with the Respondent that the Union planned the October 15 visit in
at least partial reaction to the Union’s perception that the Hillsboro store had not been allowing
the Union its contractual visitation rights on the previous day.
As a matter of law however, if a Union has the right – a protected right under Section 7
of the Act – to visit employees in a store, it does not lose or diminish that right by exercising it
even in the face of likely or even stated employer intention to halt or prevent such protected
activities. A refusal to “back down” from asserting Section 7 rights, standing alone under such
circumstances, does not make the otherwise protected actions’ for that reason unprotected. A
right is ephemeral indeed if it disappears or is diminished by reason of its assertion in the face
of likely resistance or refusal.
The Respondent also argues that, irrespective or independent of the question of the
quantum of time the union agents were to be allowed to talk to represented employees on the
store retail floor, the union actions were rendered unprotected because there were simply an
unreasonable number of agents in the store. The contract reasonably interpreted and the
practice of the parties, argues the Respondent, simply did not on October 15, 2009, allow or
privilege eight agents to engage in employee visitation in a single store at the same time. The
General Counsel and the Union oppose this argument.
I have made no findings respecting either the reasonableness of having eight visiting
Union agents in a store at one time under the contract language quoted above or whether or
not such actions were, as of October 15, 2009, inconsistent with past practice.19 I find that I
simply do not need to because the question is irrelevant to the resolution of the complaint
allegations. This is so because as I have found above, the number of agents in the Hillsboro
store was simply not initially asserted as a basis for denying the Union agents the right to visit
employees on the store floor or requiring them to leave the store. As noted above, there is no
dispute that Dostert denied Witt and Reed visitation rights before he ever knew there were more

19 An arbitrator’s decision involving another employer had limited organizational visitation to
two agents in a store at one time, but, as I have noted supra, an organizing or representational
context is simply distinguishable from the instant issue of contractual rights of represented
employees. I found supra and reassert here that such a context is simply different and legally
distinguishable from the visitation rights at issue here.
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agents than those two in the store at the time. Dostert never invoked the excessive number of
agents to Witt or Reed as a basis for denial of visitation right or as a reason for asking the
agents to leave. Indeed Dostert made it very clear that the only reason for his denial of the
Union’s visitation rights was the question of the duration of floor visitation and, if the Union
agents would only go to the breakroom, all would be well. In effect, I hold Respondent to the
basis or rationale asserted by its agent Dostert when he denied Witt and Reed visitation rights
and directed that they leave the facility, as found above.
(2) Conclusions Regarding Visitation
Based on the findings set forth supra, I have found that on October 15, 2009, the Union,
through Reed and Witt, sought union visitation of represented store employees at the Hillsboro
store consistent with the terms of the contract and past practice. I further found that the
Respondent through Dostert denied the Union those visitation rights.
I have noted, supra, that non-employee representatives in such situations are engaged
in activities protected by Section 7 of the Act and an employer’s denial of those rights violates
Section 8(a)(1) of the Act. Turtle Bay Resorts, 355 NLRB No.147 (2010). I make that finding
here. When the Respondent’s agent Dostert denied the Union’s agents Witt and Reed the right
to visit represented employees in the manner discussed above, and when he had them
removed from the Respondent’s premises for insisting on their right to so visit represented
employees, the Respondent violated Section 8(a)(1) of the Act. Turtle Bay Resorts, supra.
e. Analysis of the Arrests Issue
(1) The Arrest of Reed
There is no dispute and I have found that Reed was asked to leave the store and
refused to do so insisting on her statutory right to visit represented employees consistent with
the contract. In consequence the Respondent summoned local police and asked them to
remove Reed as a trespassing Union agent. When she refused to leave she was arrested,
taken to jail, charged with criminal trespass, booked and released on bail that evening. After
legal actions relevant to the matter over a period of time, the initial restrictions on behavior
required under the terms of her bail release were narrowed and finally the trespass charges
were dropped and the matter concluded.
Given my findings on the visitation aspect of the instant case, supra, it is clear and I find
that the Respondent’s actions respecting Reed in the circumstances described were also in
violation of Section 8(a)(1) of the Act. An employer violates Section 8(a)(1) by evicting Union
representatives from its premises, and by summoning law enforcement officials to remove or
assist in removing them, when the Union representatives have a contractually-established right
to be on the premises to meet with the represented employees. Turtle Bay Resorts, 355 NLRB
No. 147 (August 27, 2010), adopting 353 NLRB, slip op. at 32-33 353 NLRB No. 127, slip op. at
1, fn. 6, 32-33 (2009); Frontier Hotel & Casino, 309 NLRB 761, 766 (1992), enfd. sub nom.
NLRB v. Unbelievable, Inc., 71 F.3d 1434 (9th Cir. 1995). The conduct violates the Act because
it interferes with union-related communications with employees and directly restrains employees
from engaging in the union activity of conversing with their bargaining representative. Turtle Bay
Resorts, , 355 NLRB No. 147 (August 27, 2010) adopting 353 NLRB, slip op. at 32-33; Frontier
Hotel & Casino, 309 NLRB at 766.
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(2) The Arrests of Marshall and Clay
The arrests of Messrs. Marshall and Clay arose in a slightly different context from that of
Reed. Mr. Marshall was arrested by the authorities as described above in the Respondent’s
parking lot after having exited the store and gone to the vehicle in which he had arrived as part
of the Union agents’ car pool. Marshall testified without contradiction he was unable to enter the
locked car because the driver and door key possessor, Anderson, had not as yet arrived at the
vehicle. Marshall had entered the store with the intent to visit with represented employees and
exited the building under Respondent and police direction.
Mr. Clay, as set forth above, arrived at the Respondent’s store parking lot from the
Union’s offices only after the store exiting process was underway and was arrested by the
police in the parking lot as he protested their arrest of Reed and Marshall, the Respondent’s
removal of the Union agents from the store and the denial of the Union agents desire and right
to visit represented employees in the store. Clay never entered the store. Once arrested,
Marshall and Clay received identical treatment with Reed. The two were arrested by the police,
taken to jail, charged with criminal trespass and no other offenses, booked and released on bail
with restrictions on their conduct effective while on bail that evening. After legal actions relevant
to the matter occurring over a period of time, the initial restrictions on the bailees’ behavior
associated with their bail release were narrowed and finally the trespass charges were dropped
and the matter concluded.
Ms. Reed suffered arrest – specifically for trespass and for no other reason - directly
arising out of her unwillingness/her refusal to abandon her effort to visit store employees and
leave the Respondent’s premises. The Respondent’s agent Dostert directed the police to
remove Ms. Reed from the premises for that reason. Even though the Respondent emphasizes
that it did not direct the police to arrest Reed, the causation is linear and the Respondent
stands responsible.
Marshall also arrived and entered the store with an intention to visit store employees.
He chose to abandon his efforts, exit the store, and was in the process of leaving the parking lot
when his arrest occurred. While the Respondent did not request or direct, beyond the original
“clear the store” instruction, that Marshall be arrested – he was specifically arrested for trespass
and for no other reason - in the parking lot, Dostert was clearly present and able to observe the
process of Marshall’s arrest in the parking lot and, in so far as the record suggests, made no
statement or comment to the police respecting putting a halt to the arrest as the event unfolded.
Mr. Clay arrived after the Respondent’s direction to the police to clear the store. There
is no dispute he had not originally planned to enter the store as part of the visitation efforts of
the Union nor did he do so. As described, above, he parked his car in the Respondent’s parking
lot, exited it, approached the officers and protested to the police as the arrests of Reed and
Marshall were being perfected and was then arrested himself – again solely for trespass. Clay
testified that Dostert told the police that Clay did not have a right to be in the store parking lot
and the police then arrested him. Dostert testified he only observed Clay’s arrest without
making comment of any kind.
I find it unnecessary to resolve the dispute respecting the extent of Dostert’s role in
Clay’s arrest. There is no doubt Dostert was able to observe the event from his location in the
parking area outside the store, but as with Marshall’s arrest, Dostert at the very least took no
action to stop the arrest and, in so far as the record suggests, made no effort to restrain the
police or undo the arrest as the event unfolded. The police arrested Clay and Marshall because
of the Respondent’s agent's initiation of the removal process. Once the Respondent’s agent
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Dostert had the removal process underway and the police involved, and once Dostert observed
the arrest of Reed and the moments away arrests of Marshall and Clay, he was obligated to
stop the arrests of Marshall and Clay - as he easily could have done, if he was to escape
responsibility for their arrest. Not having done so under all the circumstances described, the
Respondent is liable under the cited case law for the arrests and the consequences of the
arrests. I therefore find the Respondent violated the employees Section 7 rights of its
represented employees through the arrests of Marshall and Clay as well as that of Reed.
In Wild Oats, 336 NLRB, 179, 181 (2001), the Board determined that an employer’s
“actions constituted an indirect attempt to expel the Union representatives and, consequently,
constituted interference with employee Section 7 rights.” In that case, the Respondent notified
the owner of the shopping center where Wild Oats was located and notified the owner of the
shopping center (who had a no-solicitation policy) that hand billers were outside the store. That
action caused the shopping center owner to call the police. The Board described such action by
the Respondent as “initiating a chain of events that culminated in the attempted removal of non-
employee Union representatives engaged in lawful, protected activity from the parking area in
front of the Respondent’s store”. Id. at 180. While the police did not arrest any of the handbillers,
the Board still found a violation of the Act, writing at 336 NLRB 181:
It is beyond cavil that had the Respondent directly ordered the Union representatives to
cease picketing and vacate the premises or, alternatively, directly requested the police to
remove the Union representatives, the Respondent would have engaged in unlawful
interference with employee Section 7 rights. [Citations omitted]. It would be anomalous,
therefore, to permit the Respondent to accomplish the same objective by indirect
means—to engage in conduct that has the intended and foreseeable consequence of
interfering with employee Section 7 rights. Indeed, the Board in other contexts has
indicated its willingness to hold employers responsible for violations of the Act that are
proximate and foreseeable results of the employer’s action. See generally Sure-Tan, Inc.
v. NLRB, 467 U.S. 883 (1984).
In Sure-Tan, after a union won a representation election, the employer, in violation of the
Act, sent a letter to the Immigration and Naturalization Service (INS) asking it to check the
immigration status of several employees and sparked an INS investigation that resulted in many
employees leaving his employ. The Supreme Court determined that the “petitioners’ letter was
the sole cause of the investigation” and upheld the administrative law judge’s conclusion that
[B]ut for [petitioners’] letter to Immigration, the discriminatees would have continued to
work indefinitely’. 234 NLRB at 1191. And there can be little doubt that [the petitioner]
foresaw precisely this result.” Id. at 884.
The Sure-Tan and Wild-Oats decisions show the Supreme Court and the Board’s willingness to
hold those who commit unfair practices responsible for the proximate results of their actions.
Consistent with the Board’s ruling in Wild Oats, the Respondent is liable for even the indirect
consequences of Dostert’s initiating actions. It was “proximate and foreseeable” that when the
Respondent summoned the police to the store to remove Union agents that the police well
might arrest some or all the Union agents exactly as it in fact did and charge them with
trespassing.
I find that in the context of events present here, and within the standard of forseeability
described in Sure-Tan and Wild-Oats, there can be no question that Marshall’s arrest was a
foreseeable consequence of the Respondent’s instruction to the police to evict the Union
agents, including Marshall, not just from the store but also from the entire premises which
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included the parking lot. Were that not Dostert’s intent at the time of his communication with the
police officers, he certainly had occasion to observe that the police were in fact arresting Union
agents who were not with sufficient speed exiting the parking lot. And Dostert knew this was
true as he was able to easily observe the arrest with sufficient time to have stopped the police’s
arrest of Marshall had he thought otherwise.
Mr. Clay in essence was also arrested by the police for associating himself with the
Union agents, for protesting to the police respecting their actions, and for refusing to leave the
parking lot consistent with the Respondent’s removal order. He like Marshall and Reed was
arrested for and charged only with trespass. His arrest was observed by Dostert who, under any
resolution of his disputed role in the arrest, withheld a staying hand and did not take any action
or address any limiting instruction to the police. Clay’s actions were directed to making common
cause with the Union agents – his agents – under arrest and with those others that had been
wrongfully excluded from the building and were being excluded from the entire premises which
included the Respondent’s parking lot. I find that Marshall and Clay stand in the equivalent
shoes of Reed and, for all the above reasons, find their arrests in the circumstances presented
also violate Section 8(a)(1) of the Act.20 It was, after all, the Respondent’s agents herein that
“Cry 'Havoc,' and let slip the dogs of war.” Julius Caesar, Act 3, scene 1, lines 270–275, William
Shakespeare.
2. The October 15, 2009, Dostert Statements as Violations of Section 8(a)(1) of the Act
The amended complaint alleges in paragraph 9 that the Respondent on
October 15, 2009 at its Hillsboro, Oregon store through its store Home Department Manager
Jim Dostert:
(a) Directed employee not to speak with Union representatives;
(b) Told Union representatives that they could not speak to employees;
(c) Told Union representatives that they must go to the employee breakroom in order to
speak with employees;
(d) Disparaged the Union in the presence of employees by stating that:
(i) Union representatives are jerks;
(ii) Unions are outdated and ridiculous;

20 The Board in Venetian Casino Resort, LLC, 355 NLRB No. 165 (August 27, 2010), dealt
with the question of whether and employer’s summoning of police was a direct petitioning of the
Government and therefore protected by the First Amendment to the Constitution in a
complicated procedural situation. An initial Board decision had gone to the United States Circuit
Court of Appeals for the Ninth Circuit Court of Appeals for enforcement and the Court remanded
the case for further consideration of that narrow issue. 484 F.3d 601, 610 and 614 (2007), cert.
denied 128 S.Ct. 1647 (2008). The Board addressed that remand as a two member Board at
354 NLRB No. 9 (April 29, 2009). The Supreme Court in New Process Steel, L.P. v. NLRB, 130
S.Ct. 2635, found such two-Board member decisions invalid. In the Board’s August 27, 2010
decision, cited above, the Board dealt again with the Circuit Court’s petitioning question on
remand by stating that it was gong to sever the question from the case and undertake further
consideration of the Court’s remand. Thus that question in the noted remand context remains
before the Board.
Given all the above, I find the Board’s decision reserving the question presented by the
court of appeals on remand does not establish new Board law changing or controlling over the
otherwise current Board law, cited supra, that the Respondent’s summoning of the police in the
circumstances presented violated Sec. 8(a)(1) of the Act.
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(iii) Union dues are ridiculous; and
(iv) Union representatives and the Union are stupid;
(e) Threatened to have Union representatives arrested or removed from the store
because they would not restrict their conversations with employees to the employee
breakroom; and
(f) Instructed Hillsboro store Loss Prevention Manager Michael Kline in the presence of
employees to contact the police to have the Union representatives arrested or removed
from the store because they would not restrict their conversations with employees to the
employee breakroom.
a. Complaint subparagraphs 9(a), (b), (c), and (e)
Given that I found, supra, based on credibility that Dostert told Reed and Witt that they
must go to the breakroom if they wished to speak to employees beyond identifying themselves,
and my other findings supra, there are no further factual disputes concerning the conduct
alleged in complaint subparagraphs 9(a), (b), (c), and (e). As to the law, the cases are clear,
with Turtle Bay, supra, being the most current, that such employer statements and restrictions
on Union agent access in the context of excluding actions when there is a contract right to visit
employees violate represented employees’ Section 7 rights and therefore violate Section 8(a)(1)
of the Act. I so find.
b. Complaint subparagraph 9(d)(i),(ii),(iii) and (iv)
These complaint subparagraphs require further consideration of the arguments of the
parties and analysis since they involve additional disputed facts and circumstances.
I credited Witt and his contemporaneous notes supra that Dostert made the following
remarks in the on going conversation between Reed, Witt and Dostert:
‘Cannot talk to ees on the sales floor.’
‘I’m tired of these union people.’
‘Union reps: jerks.’
‘Union dues are ridiculous.’
‘Unions are outdated and ridiculous.’
‘You’re not anyone to me.’
I also credited Reed respecting her recollections of the conversation including that part
that took place in the presence of Ms. England. She testified that Dostert in a raised voice with
raised voice in anger stated, inter alia:
[T]that we were only here for people's dues money, that people -- these members
did not need a union. He asked me how much money we'd stolen from these
members. That he didn't believe in unions, that we didn't need unions, and he
wanted us to leave.
Ms. England testified that she was working at a closed check stand in the apparel
department when she was approached by Union agent Reed and Manager Dostert. She
testified that Reed came to her and said:
“I have the right to speak to you, I'm from the Union”, and she handed me a paper
with something on it that was going on with the Union at that time”.
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Ms. England testified that she was focused on listening to what Reed said to her and that
Manager Dostert was right next to Reed at the time. She further testified: “I do not recall:
when asked if the home manager said anything to her at that point in time. No other questions
were asked of her respecting what she heard. She did testify however that the approach of
Dostert and Reed was “a little bit overwhelming.”
The Respondent’s argument that the testimony of Reed and Witt in these regards should
be discredited has been rejected supra. Respondent argues further however that the General
Counsel did not establish that any statutory employee overheard the claimed remarks of Dostert
other than Ms. England who is hearing impaired and did not testify she heard any of the
remarks. The test of whether or not England heard the remarks at issue is one of fact.
Contrary to the argument of the Respondent, Ms. England did not testify that she did not
hear statements of Dostert. Ms. England testified she focused on Reed, that Dostert was next
to her and that she “did not recall” whether or not he made any remarks. And there is no
dispute that Dostert in a loud manner at the start of the contact with England, instructed
her not to talk to Reed. The Respondent notes Ms. England is hearing impaired. The
record establishes she wears a hearing aid, hears best when facing the speaker and
augments her hearing with lip reading. In this connection I note and find important: that
she was facing Reed and Dostert, was close to them at the time of the events in contest,
and was focusing on the two individuals. She testified as to the specifics of what Dostert
was doing during these events. Given all the above, I find the statements of Dostert
described by Reed supra as being made in the presence of England, were reasonably
heard by her given all the circumstances including her auditory circumstances. Therefore
I find the remarks were made in the presence of a represented statutory employee.
The Respondent argues on brief at 67:
Disparaging remarks “that [do] not suggest that the employees' protected activities were
futile, [do] not reasonably convey any explicit or implicit threats, and [do] not constitute
harassment that would reasonably tend to interfere with employees' Section 7 rights” do
not violate Section 8(a)(1). Trailmobile Trailer, LLC, 343 NLRB 95 (2004); see also
Sears, Roebuck & Co., 305 NLRB 193 (1991).
The General Counsel implicitly accepts Respondent’s argument but counters on brief at: 40-41:
In Turtle Bay Resorts, 353 NLRB No. 127, slip op. at 37-38 (2009), while recognizing
that "[W]ords of disparagement alone concerning a union or its officials are insufficient
for finding a violation of Section 8(a)(1)," the Board nevertheless found the supervisor's
disparaging comments to be a violation when considered along with the threats
accompanying the disparaging comments. Similarly, in Advanced Architectural Metals,
Inc., 351 NLRB 1208, 1216 (2007), the Board affirmed the ALJ's finding that a directive
to an employee to talk to a manager about problems rather than the "stupid union"
unlawfully disparaged the union and tended to restrain employees in the exercise of their
rights to consult with and be represented by their union.
I find the General Counsel’s cited cases, especially Turtle Bay and noting that the cited
Turtle Bay decision was adopted by the Board in Turtle Bay Resorts, 355 NLRB No. 147 (2010),
controlling here. Accordingly, I find that Dostert’s disparagement of the Union agents and the
Union as testified to by Reed in the presence of England violated Section 8(a)(1) of the Act. I
find violative however only the statements I have found were made by Dostert specifically above
rather than the attributions recited in the complaint subparagraph.
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c. Complaint subparagraph 9(f)
The complaint subparagraph alleges that Dostert instructed Hillsboro store Loss
Prevention Manager Michael Kline in the presence of employees to contact the police to have
the Union representatives arrested or removed from the store because they would not restrict
their conversations with employees to the employee breakroom. Given my earlier findings, the
sole remaining unresolved element respecting this allegation is whether or not Kline received
his instructions for Dostert in the presence of employees.
The General Counsel argues on brief at 22–23:
An employer further violates Section 8(a)(1) by threatening and causing a Union
representative's arrest for meeting with employees on its premises when its efforts to bar
the representative from its premises are unlawful. See, e.g., Downtown Hartford YMCA,
349 NLRB 960, 972–973 (2007). Accord Jerry Cardullo Ironworks, Inc., 340 NLRB 515,
521 (2003); Fabric Warehouse, 294 NLRB 189,192 (1989), enfd. sub nom., Hancock
Fabrics v. NLRB, 902 F.2d 28 (4th Cir. 1990). See also Indio Grocery Outlet, 323 NLRB
1138, 1142 (1997) (employer violated Sec.8(a)(1) by threatening to have union
representatives arrested, and thereafter requesting and causing police to arrest them,
for picketing and distributing union-related literature on its premises where it did not
have lawful right to exclude them from the property). Such conduct violates Section
8(a)(1) regardless of whether employees hear the threats or witness the arrests because
the conduct itself interferes with the exercise of Section 7 rights. Roger D. Hughes
Drywall, 344 NLRB 413, 415 (2005). Applying the above precedent to the record
evidence developed at trial demonstrates that Respondent violated Section 8(a)(1) as
alleged in the Amended Complaint.
The Board in Roger D. Hughes Drywall, supra, noted further at 344 NLRB 415:
The Board has found 8(a)(1) violations based on employer’s actions such as calls to
police, threats and attempted arrests, and harassment with water sprinklers directed
against area standards picketers and Union agents without reference to whether these
actions were witnessed by any of the employer’s statutory employees. See Corporate
Interiors, 340 NLRB 732, 745–747 (2003), citing, inter alia, Bristol Farms, above. See
also Petrochem Insulation, Inc., 330 NLRB 47, 49 (1999), enfd. 240 F.3d 26, 29 (D.C.
Cir. 2001) (union’s area standards activity on behalf of employees whom it represents is
protected activity).
This being so, I find it is unnecessary to determine if Kline, as alleged in the complaint
subparagraph, was instructed by Dostert in the presence of employees to contact the police to
have the Union representatives arrested or removed. Clearly Dostert took the action described.
The cited case makes it clear that the presence or absence of employees in such circumstances
is immaterial. Accordingly I find the Respondent by taking the actions described violated
Section 8(a)(1) of the Act whether or not employees were present when the Respondent’s agent
Dostert told the Respondent’s agent, Klein, to take the actions indicated.
3. The October 15, 2009, Conduct of the Respondent’s Agents as a Violation of Section 8(a)(5)
and (1) of the Act
The complaint alleges in paragraph 13, that the Respondent’s Hillsboro store Home
Department Manager Dostert in limiting the Union agents’ rights to contact represented store
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employees within the facility on October 15, 2009, in a manner inconsistent with the parties’
past practice, unilaterally changed the terms and conditions of Union represented employees
within the store without notifying the Union, bargaining with the Union respecting the change or
obtaining the Union’s permission and, in so doing, the complaint alleges in paragraph 14, the
Respondent violated Section 8(a)(5) and (1) of the Act.
The General Counsel urges I find a violation of Section 8(a)(5) and (1) of the Act
occurred based essentially on my findings and conclusions respecting the other allegations of
the complaint. The General Counsel argues as follows. First, the Respondent and the Union
had a contract with language and past practice consistent with the request of Reed and Witt to
visit represented employees. Second, the Respondent at all times at the Hillsboro store on
October 15, 2009, failed and refused to allow visitation rights and prohibited them by variously,
telling the Union agents to stop attempting to visit with store employees and to leave the store,
telling employees not to talk to the Union agents, and, finally, by summoning the police and
instructing them to remove the Union agents as trespassers, thereby initiating a process
resulting in the police undertaking the removal and arrest of Union agents. Third, the Union was
not provided with notice of, nor an opportunity to bargain respecting, the denial of the previously
granted and historically utilized visitation rights. These elements, in their totality, argues the
General Counsel, rise to the level of a denial of a negotiated and contract right and practice
undertaken by the Respondent unilaterally: a classic violation of Section 8(a)(5) and (1) of the
Act.
The General Counsel cites supporting Board cases on brief at 41:
A change in the parties' practice with respect to in-store visitations by Union
representatives constitutes a material change. Ernst Home Centers, 308 NLRB 848,
848-49 (1992). Accordingly, an employer violates Sections 8(a)(1) and (5) by unilaterally
altering the parties' contractual access provisions or practice. See, e.g., Turtle Bay
Resorts, 353 NLRB No. 127, slip op. at 33-35 (2009); Frontier Hotel & Casino, 309
NLRB 761, 766 (1992), enfd. sub nom. NLRB v. Unbelievable, Inc., 71 F.3d 1434 (9th
Cir. 1995); Ernst Home Centers, 308 NLRB at 848-49.
The Charging Party focuses its post hearing brief on this issue and provides a scholarly
recitation of Board and court cases. The Charging Party argues on brief at 2:
The Board has “long held that a union’s access to represented employees on an
employer’s premises is a mandatory subject of bargaining and that an employer’s
unilateral modification of contractual access provisions violates Section 8(a)(5) of the
Act.” American Commercial Lines, Inc., 291 NLRB 1066,1072 (1988) (citing Campo
Slacks, Inc., 250 NLRB 420, 429 (1980) enf’d. mem. 659 F. 2d 1069 (3rd Cir. 1981);
Boyer Bros., Inc. 217 NLRB 342, 344 (1975), Granite City Steel Co., 167 NLRB 310
(1967)).
The Respondent’s arguments respecting this paragraph of the complaint essentially
track its arguments set forth and rejected above addressing the earlier considered allegations of
the complaint respecting the parties’ practice in applying the contractual language at issue and
the events occurring at the Hillsboro store on October 15, 2009.
Given my factual findings, supra, the cases cited by the General Counsel and the
Charging Party are on point respecting the law applicable to unilateral changes in the
circumstances of the instant case. As found supra, Dostert on October 15, 2009, simply
prohibited the two Union agents, who announced they were there to speak to represented
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employees, from doing so on the shop floor. The subsequent arguments about what would or
would not have been reasonable or inconsistent with practice beyond that simple prohibition
was, I reiterate here, not material to resolving the earlier allegations and they are also not
relevant to resolving the instant allegation. Thus the complaint alleges the violation occurred on
October 15, 2009, though Dostert. The allegation, paragraph 13 of the complaint, does not
allege any other Respondent agents engaged in a violation of the Act in this complaint
paragraph. No continuing theory of a violation is alleged. Thus, subsequent positions of the
parties on the reach and applicability of the contract and its history of application to later events
is not material to the analysis of this allegation and the cited cases control.
Given all the above, I sustain complaint paragraph 13 and find that the Respondent,
through Dostert, in denying the two Union agents access to store employees on the store floor
under the circumstances found herein violated Section 8(a)(5) and (1) of the Act.
Conclusions of Law
On the basis of the above findings of fact and the record as a whole and Section 10(c) of
the Act, I make the following conclusions of law.
1. The Respondent is, and has been at all times material, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party is, and has been at all relevant times, a labor organization within
the meaning of Section 2(5) of the Act.
3. At all times material, based on Section 9(a) of the Act, the Union has been the
exclusive representative of the following units of the Respondent’s employees for purposes of
collective bargaining:
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 herein (head
clerk/head produce clerk, journey person clerk, apprentices, courtesy clerks,
demonstrators, container clerks employed in the grocery, produce and
delicatessen departments), for all present and future stores of the Respondent in
Multnomah, Washington, Clackamas, Columbia, and Yamhill Counties, Oregon.
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, Washington, Clackamas, Columbia, and
Yamhill Counties, Oregon.
The Retail Meat Unit:
All employees covered by the wage schedules and classifications listed herein
(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
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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 herein
(general sales, store helper clerks, salvage, pharmacy tech A, lead clerks, PICs),
for all present and future stores of the Respondent in Multnomah, Washington,
Clackamas, Columbia, and Yamhill Counties, Oregon.
4. The units set forth above, and each of them, are appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
5. The Respondent violated Section 8(a)(1) of the Act by engaging in the following acts
and conduct on October 15, 2009 at its Hillsboro, Oregon store at a time when the parties’
collective bargaining agreements allowed Union agents to visit the Respondent’s represented
stores during business hours and talk to represented store employees on the store floor for a
reasonable period under reasonable circumstances:
a. Directed Union represented employees not to speak to Union representatives on
the store floor;
b. Told Union representatives not to talk to Union represented employees on the
store floor;
c. Told Union representative they must go to the employee breakroom in order to
speak with represented employees;
d. Disparaged the Union in the presence of employees by stating variously that Union
representation was unnecessary and outdated, that the Union and its
representatives were stupid, stealing employees dues monies, and otherwise
without value or worth;
e. Threatened to have Union representatives arrested or removed from the store
because they would not restrict their conversations with represented employees to
the store employee breakroom;
f. Instructed the Respondent’s security officer to contact the police to have the Union
representatives arrested or removed from the store because they would not restrict
their contract with represented employees to the store employee breakroom;
g. Caused the arrest of Union representatives Reed, Marshall and Clay because they
refused to leave, or were not sufficiently rapid in attempting to leave, the
Respondent’s store and parking lot;
h. On and after October 15, 2009, caused the criminal prosecution of the arrested
Union representatives because they refused to leave, or were not sufficiently rapid
in attempting to leave, the Respondent’s store and parking lot.
6. Respondent violated Section 8(a)(5) and (1) of the Act in limiting the Union agents’
rights to contact represented store employees within its Hillsboro, Oregon facility on
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October 15, 2009, in a manner inconsistent with the parties’ past practice, unilaterally changing
the terms and conditions of Union represented employees within the store without notifying the
Union, bargaining with the Union respecting the change, or obtaining the Union’s permission.
7. The unfair labor practices described above are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent violated the Act as set forth above, I shall order that
it cease and desist therefrom and post remedial Board notices addressing the violations found.
The language on the Board notices will conform to the Board’s decision in Ishikawa Gasket
America, Inc., 337 NLRB 175 (2001), which reiterates the simple logic of the proposition that
remedial notices should be drafted in plain, straightforward, layperson language that clearly
informs employees of their rights and the violations of the Act found.
The notice will be directed to be posted in each and all the Respondent’s stores in which
employees in the bargaining units cited herein are regularly employed. The controversy while
occurring at a single store was treated by all concerned as having far wider – contract wide -
implications. The question of Union agent access is governed by the uniform contract language
at those facilities. Further both the Union and the Respondent viewed the incident as having
application to all stores under the contracts. And, importantly, the Respondent in
communications with employees at all the represented facilities after the event, described the
arrests as resulting from Union agent disregard of applicable contract language and practice, as
discussed in part supra, which language and practices were described as applicable to all the
unit represented stores.
Further as the Board held in the recent case of J. Picini Flooring, 356 NLRB No. 9 (2010),
notices should also be posted electronically, on the Respondent’s intranet or internet site, if the
Respondent customarily uses such electronic posting to communicate with its employees or
members. Similarly, notices should be distributed by email if the Respondent customarily uses
email to communicate with its employees, and by any other electronic means of communication
so used by the Respondent.
The Respondent shall be ordered to make the Union or the Union representatives, as
the case may be, whole for any and all legal, representational and related costs arising from the
Reed, Marshall and Clay arrests and subsequent related proceedings and the Respondent will
be ordered to notify the appropriate law enforcement and court authorities of the illegality of the
arrests and to seek the expungement of associated records. Roger D. Hughes Drywall, 344
NLRB 413 (2005); Schear’s Food Center, 318 NLRB 261, 267 (1995); K Mart Corp., 313 NLRB
50, 58 (1993); Baptist Memorial Hospital, 229 NLRB 45, 46 (1977), affd. 568 F.2d 1 (6th Cir.
1977). See also Petrochem Insulation, Inc., 240 F.3d 26, 35 (D.C. Cir. 2001).
The General Counsel seeks compound interest on the sums due herein. The Board’s
has recently changed its view respecting interest calculation as set forth in Kentucky River
Medical Center, NLRB 356 NLRB No. 8 (2010), in which it announced that it will routinely
order compound interest calculated on a daily basis on backpay and other monetary awards in
backpay cases and that this standard will be applied retroactively. The Board’s interest
calculations standards have without exception been applied uniformly in a standard manner
respecting the means or formulas for calculation of all monetary remedies. I conclude that the
Board’s new standard should apply herein. I shall therefore grant the General Counsel’s
request and shall direct interest on the make whole sums involved herein be calculated and paid
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with interest compounded on a daily basis consistent with Kentucky River Medical Center,
NLRB 356 NLRB No. 8 (October 22, 2010).
Based upon the above findings of fact and conclusions of law, and on the basis of the
entire record herein, I issue the following recommended:21
ORDER
The Respondent, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Directing union represented employees not to speak to union representatives on
the store floor;
(b) Telling union representatives not to talk to Union represented employees on the
store floor;
(c) Telling union representative they must go to the employee breakroom in order to
speak with represented employees.
(d) Disparaging the Union in the presence of employees by stating variously that
union representation was unnecessary and outdated, that the Union and its representatives
were stupid, stealing employees’ dues moneys and were otherwise without value or worth.
(e) Threatening to have union representatives arrested or removed from the store
because they would not restrict their conversations with represented employees to the store
employee breakroom.
(f) Instructing the Respondent’s security officer to contact the police to have the union
representatives arrested or removed from the store because they would not restrict their
contract with represented employees to the store employee breakroom.
(g) Causing the arrest of union representatives because they refused to leave, or
were not sufficiently rapid in attempting to leave, the Respondent’s store and parking lot.
(h) On and after October 15, 2009, causing the criminal prosecution of the arrested
union representatives because they refused to leave, or were not sufficiently rapid in attempting
to leave, the Respondent’s store and parking lot;
(i) Limiting the union agents’ rights to contact represented store employees in a
manner inconsistent with the parties’ past practice, thereby unilaterally changing the terms and
conditions of Union represented employees in the bargaining units noted above, without
notifying the Union, bargaining with the Union respecting the change or obtaining the Union’s
permission.

21 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections shall be waived for all
purposes.
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(j) In any like or related manner restraining or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the National Labor Relations Act.
2. Take the following affirmative action designed to effectuate the policies of the Act:
(a) Make the Union or Union Agents Reed, Marshall 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 subsequent related proceedings, with interest, in the manner described in
the remedy section of this decision.
(b) Notify the appropriate law enforcement and court authorities of the illegality of the
arrests and to seek the expungement of associated records and within 3 days notify Reed,
Marshall, and Clay that this has been done.
(c) Within 14 days after service by the Region, post copies of the attached notice set
forth in the Appendix22 at its union-represented stores which are covered by any of the
collective bargaining agreements covering one or more of the bargaining units cited herein.
Copies of the notice, in English and such other languages as the Regional Director determines
are necessary and proper to communicate with employees, on forms provided by the Regional
Director, after being signed by the Respondent's authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted in each of the facilities where
represented employees covered by the cited contracts or in the bargaining units currently
covered by the contracts, are employed. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on an intranet or an internet site, or
other electronic means, if the Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent to ensure the notices are not
altered, defaced or covered by other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed one or more of the facilities at
which the notice was to have been posted, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all former employees employed by the Respondent at the
closed facility at any time after October 15, 2009.

22 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region or Sub-Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. December 8, 2010
________________________
Clifford H. Anderson
Administrative Law Judge
JD(SF)-48-10
Portland, Oregon
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
FEDERAL LABOR LAW GIVES EMPLOYEES THE RIGHT TO:
Form, join or assist a union,
Choose representatives to bargain with them on them behalf,
Act together with other employees for the employees benefit and protection,
Chose not to engage in any of these protected activities.,
Under collective-bargaining contracts Fred Meyer has negotiated with the United Food and
Commercial Workers Local No. 555, affiliated with United Food and Commercial Workers
International Union (the Union), respecting bargaining units of our employees described further
down on this notice, we have contract clauses and a practice of applying that contract clause
which provides that union agents may contact our union represented store employees in our
stores on union business during the employees’ working hours in a manner that does not
interfere with service to customers nor unreasonably interrupt employees in the performance of
the employees’ duties.
The Union and the Company had a dispute regarding union agent access to store employees at
our Hillsboro, Oregon store on October 15, 2009. After a trial at which we appeared, argued
and presented evidence, the National Labor Relations Board has found that in handling that
dispute, we violated the National Labor Relations Act and has directed us to post and obey this
notice to our Union represented employees and to abide by its terms.
Accordingly, we give our employees the following assurances.
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 employees 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 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, stealing employees dues monies,
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;
JD(SF)-48-10
Portland, Oregon
WE WILL NOT instruct our store security officers to contact the police to have the union
representatives arrested or removed from the store because the union representatives would
not restrict their contract with represented employees to the store employee breakroom;
WE WILL NOT cause the arrest of union representatives, including Union agents Reed,
Marshall and Clay, because they refused to leave, or were not sufficiently rapid in attempting to
leave, our Hillsboro, Oregon store and parking lot;
WE WILL NOT cause the criminal prosecution for trespass 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 manner
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 bargaining with respect to this
conduct and the effects of this conduct;
WE WILL make the Union or Union Agents Reed, Marshall, 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.
WE WILL NOT In any other like or related manner restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the National Labor Relations Act.
The United Food and Commercial Workers Local No. 555, affiliated with United Food and
Commercial Workers International Union is and has been the exclusive representative of our
employees in the following units for purposes of collective bargaining:
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 herein (head
clerk/head produce clerk, journey person clerk, apprentices, courtesy clerks,
demonstrators, container clerks employed in the grocery, produce and delicatessen
departments), for all present and future stores of the Respondent in Multnomah,
Washington, Clackamas, Columbia, and Yamhill Counties, Oregon.
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, Washington, Clackamas, Columbia, and Yamhill Counties,
Oregon.
JD(SF)-48-10
Portland, Oregon
The Retail Meat Unit:
All employees covered by the wage schedules and classifications listed herein (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 herein (general sales,
store helper clerks, salvage, pharmacy tech A, lead clerks, PICs), for all present and
future stores of the Respondent in Multnomah, Washington, Clackamas, Columbia, and
Yamhill Counties, Oregon.
Fred Meyer Stores
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
915 2nd Avenue, Federal Building, Room 2948
Seattle, Washington 98174-1078
Hours: 8:15 a.m. to 4:45 p.m.
206-220-6300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 206-220-6284.
THIS NOTICE AND THE DECISION IN THIS MATTER ARE PUBLIC DOCUMENTS
Any interested individual who wishes to request a copy of this Notice or a complete copy of the
Decision of which this Notice is a part may do so by contacting the Board's Offices at the
address and telephone number appearing immediately above. You may also obtain information
and a downloaded electronic version of this NOTICE and the official decision in which it appears
from the Board’s website: www.nlrb.gov.
JD(SF)-48-10
Portland, Oregon
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
FRED MEYER STORES, INC.
The Respondent
and Case 36-CA-10555
UNITED FOOD AND COMMERCIAL
WORKERS LOCAL No. 555, affiliated with
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION
The Charging Party
Table of Contents
DECISION ........................................................................................................................ 1
Statement of the Case ...................................................................................................... 1
Findings of Fact ................................................................................................................ 3
I. Jurisdiction.............................................................................................................. 3
II. Labor Organization ................................................................................................ 3
III. The Collective Bargaining Relationship................................................................. 3
IV. The Alleged Unfair Labor Practices ...................................................................... 4
A. Background .................................................................................................... 4
1. The Applicable Collective Bargaining Agreements ................................... 4
2. Store Visitation......................................................................................... 5
B. The Events ..................................................................................................... 7
1. Fall 2009.................................................................................................. 7
2. October 14, 2009 ..................................................................................... 8
3. October 15, 2009 ..................................................................................... 11
C. Versions of Events ......................................................................................... 12
1. The Hillsboro Events to the Arrests.......................................................... 12
a. The Testimony of Reed..................................................................... 12
b. The Testimony of Witt ....................................................................... 15
c. The Testimony of Dostert .................................................................. 16
d. The Mid-Event telephone call between Thornton and Barkeley......... 20
2. The Arrests .............................................................................................. 21
D. Analysis and Conclusions............................................................................... 24
1. The Visitation/Arrest Allegations .............................................................. 24
a. Narrowing the Issues ........................................................................ 24
b. The Contract Language and the Parties’ Past Practice ..................... 25
c. What Happened on October 15, 2009? ............................................. 26
d. Analysis of the Visitation Issue.......................................................... 32
(1) Certain of Respondent’s Defenses Rejected............................. 32
(2) Conclusions Regarding Visitation.............................................. 33
e. Analysis of the Arrests Issue ............................................................. 33
(1) The Arrest of Reed ................................................................... 33
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(2) The Arrests of Marshall and Clay.............................................. 34
2. The October 15, 2009, Dostert Statements as Violations of
Section 8(a)(1) of the Act ......................................................................... 36
a. Complaint subparagraphs 9(a), (b), (c), and (e) ................................ 37
b. Complaint subparagraph 9(d)(i),(ii),(iii) and (iv) ................................. 37
c. Complaint subparagraph 9(f)............................................................. 39
3. The October 15, 2009, Conduct of the Respondent’s Agents as a
Violation of Section 8(a)(5) and (1) of the Act........................................... 39
Conclusions of Law........................................................................................................... 41
REMEDY .......................................................................................................................... 43
ORDER ............................................................................................................................ 44
APPENDIX ....................................................................................................................... 47