Appeals Court Slams NLRB as Labor ‘Advocate’ in Union Arrest Case

D.C. Circuit says board was wrong to punish company for calling cops on UFCW organizers

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A federal appeals court ruled that a top labor regulator abandoned its mission as a neutral arbiter when it sanctioned a company for calling the police on union organizers for trespassing.

Three organizers from United Food and Commercial Workers (UFCW) Local 555 were arrested in 2009 after refusing to leave a Hillsboro, Ore., Fred Meyer box store following a confrontation with a manager. The union filed a complaint to the National Labor Relations Board alleging the arrests broke the company's agreement to allow organizers to visit the store. The Board ruled 2-1 in 2015 that "the unlawful expulsion and arrest of union representatives" constituted coercion and intimidation.

The Washington, D.C., Circuit Court of Appeals rejected the board's conclusion in an Aug. 1 ruling, saying it ignored events leading to the arrest and mischaracterized other factual disputes at issue. The Court unanimously ruled that the manager had the right to call the police because the union failed to give the store advanced notice.

"As of the moment the Union representatives walked through the doors to the Store without notifying management of their presence—at least 5 minutes before [the manager] first opened his mouth and long before anyone was arrested—they had become trespassers Fred Meyer could lawfully expel from the Store," the Court ruled. "The evidence demonstrates the Union representatives' own behavior led to their arrests." The state of Oregon later dropped the charges.

The Appeals Court called into question the agency's objectivity. Circuit Judge Janice Rogers Brown said the board's majority approached the case as "an advocate" for the union, rather than a neutral arbiter.

"The Board's actions in this matter are more consistent with the role of an advocate than an adjudicator," Brown wrote.

Brown, a George W. Bush appointee who will retire on Thursday, has criticized the agency's handling of labor disputes in the past. In 2016, she critiqued the NLRB for "administrative hubris" and ordered it to pay $18,000 to Heartland Health Care Center's legal expenses that resulted from the agency's "clear case of bad faith litigation"

The agency defended the decision, arguing in a brief that "the union representatives did not breach the store-visitation clause" and that "any arguable disruption at the store was caused by the Company’s own unfair labor practices."

"Substantial evidence also supports the Board's finding that none of the three union representatives who were arrested had engaged in any misconduct that would have caused their arrests independent of [the manager's] unlawful assertion that they were trespassing," the agency said in the brief.

The NLRB declined to comment on the Court's criticism of the Board beyond saying agency attorneys were exploring the potential of appeal. UFCW Local 555 President Daniel Clay, who was among the three officials arrested, did not return request for comment.

Fred Meyer attorney Mitchell Cogen of Bullard Law called the ruling a victory for private property rights and holding labor groups accountable for violating visitation agreements.

"At every step of the administrative process, the Board chose to ignore substantial evidence that Fred Meyer's actions did not violate the Act," he said in a statement. "The DC Circuit has made clear that if a union breaches [its] agreements, they are properly subject to state laws protecting private property, including trespass, and cannot use the National Labor Relations Act as both a sword and a shield."

The Court ordered the agency to review the Fred Meyer case based on the standards laid out in its decision.

The Board has changed significantly since the ruling. Democrats had a 3-2 majority on the board, and a 2-1 majority on the panel that decided the case, when the final board decision was authored in 2015.  The board now has a 2-2 split, giving Republicans the ability to hold a majority on three-member panels. The Senate is still waiting to confirm Trump NLRB nominee William Emanuel. The White House is also looking to fill the seat of Republican Chairman Philip Miscimarra, who said he would not seek reappointment when his term expires in December.

Bill McMorris   Email Bill | Full Bio | RSS
Bill McMorris is a staff writer for the Washington Free Beacon. He joins the Beacon from the Franklin Center for Government and Public Integrity, where he was managing editor of Old Dominion Watchdog. He was a 2010 Robert Novak Fellow with the Phillips Foundation, where he studied state pension shortfalls. His work has been featured on CNN, Fox News, The Economist, Colbert Report, and numerous print publications and radio stations. He lives in Alexandria, Va, with his wife and three daughters. His Twitter handle is @FBillMcMorris. His email address is mcmorris@freebeacon.com.

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