Epic NLRB Benchslap

By John Doran

An agreement between the UFCW and the Fred Meyer grocery store chain restricted the union’s ability to visit with store employees in public view.  But things went south when the UFCW declared war on Fred Meyer.  Some eight union representatives showed up at a Fred Meyer store and began disrupting business and violating the parties’ agreement on union store visits.  The situation quickly escalated and three union representatives were arrested.  The NLRB found that Fred Meyer unlawfully changed its policy concerning union visits during this incident, and ordered the store to make whole the three union representatives who were arrested.  The D.C. Circuit flatly disagreed. Fred Meyer Stores, Inc. v. NLRB, No. 15-1135 (D.C. Cir. August 1, 2017).

The Court’s NLRB criticisms are astounding.  The court described the NRLB’s decision as “more disingenuous than dispositive; it evidences a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence—disregarding the need for reasoned decision making.”  The Court sharply criticized the Board for completely ignoring facts, and pointed to the Board’s “tone deafness” to key facts.  The Court concluded that “the Board’s actions in this matter are more consistent with the role of an advocate than an adjudicator.”  To that, we say: “hear hear!