Expulsion and Arrests Were Lawful for ‘Fighting Union’

By Bryant S. Banes September 7, 2017
Expulsion and Arrests Were Lawful for ‘Fighting Union’

One of the most difficult labor issues a company can face is what to do when a union decides to disrupt company operations in front of its customers. It is scary when a union descends in force upon any business, telling you and your customers that you are "committing unfair labor practices" or "violating federal law" if the union members are not allowed to speak with your employees when and where they choose. But this is not the law, and an employer's threats of removal and the subsequent arrest of union members for criminal trespass do not violate the National Labor Relations Act (NLRA), as the U.S. Circuit Court of Appeals for the District of Columbia Circuit decided.

[SHRM members-only HR Q&A: What is an unfair labor practice by management?]

Over the course of their 20-year history together, Fred Meyer Stores Inc. and the United Food and Commercial Workers Union had agreed that conversations between union representatives and employees of the store of up to two minutes may occur on the sales floor. The union also limited itself to two union representatives in the store at any given time—often a single union representative and, occasionally, an accompanying trainee. Where prior visitations had escalated into disputes, the store called the police, and the union representatives left of their own accord.

The collective bargaining agreement memorialized this access agreement as follows: "It is the desire of both the employer and the union to avoid wherever possible the loss of working time by employees covered by this agreement. Therefore, representatives of the union when visiting the store or contacting employees on union business during their working hours shall first contact the store manager or person in charge of the store. All contact will be handled so as to not interfere with service to customers nor unreasonably interrupt employees with the performance of their duties."

In July 2008, the union leadership shifted and decided to take a more confrontational approach, visiting the store more frequently and expanding the number of representatives it sent to the store. By Sept. 25, 2009, the local union leadership declared itself a "Fighting Union" and promised it would do whatever was necessary to further its interests.

Matters came to a head on Oct. 14, 2009, and the union left the store that day after heated discussions with management, promising to return with reinforcements. The store spent that night preparing and training on a protocol consistent with its stated policies, and the union prepared for both confrontation and to "take [the] arrest" if matters escalated.

On Oct. 15, the union arrived in force with eight members, some holding up signs and saying they had a right under federal law to talk to employees as long as they wished.

The store management disagreed and told them they would need to comply with the previously established policy or leave the store. The union members refused, so the store called the police. When the police arrived, the store management again asked the union members to leave. The police officers explained that if the union members failed to comply, they would be violating Oregon trespass law and would be arrested. Citing federal law, a few of the union members still refused to leave and were arrested.

In the court's view, "[a]s 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 [the store] could lawfully expel." As the court emphasized, "[i]t is well-established that employers can generally prohibit labor-organization activities by nonemployee union representatives conducted on business property. Consequently, nonemployee union agents on an employer's premises for the purpose of communicating with represented employees are engaged in activities protected by Section 7 of the [NLRA] only to the extent that they comply with the parties' contractual access clause."

With respect to the local police arrests of the union members, the court was similarly unsympathetic to the union. The court stated, "[i]t is axiomatic that an employer, even an employer running a union shop, may generally avail itself of the assistance of law enforcement and press trespassing charges against those impermissibly occupying its property following a direction to leave." As the court stated, on Oct. 15, 2009, "the union representatives departed from their prior practice and escalated their interactions with police officers." This, the court found, was an "intervening act" not protected by the NLRA.

Fred Meyer Stores Inc. v. NLRB, D.C. Cir., No. 15-1135 (Aug. 1, 2017).

Professional Pointer: This case provides a detailed road map on how to defend against a fighting union that seeks to ignore prior practice and disrupt business operations and customers. For employers, it is critical to formulate, train managers on and follow a stated policy, and engage the assistance of law enforcement to stop a trespass or breach of the peace.

Bryant S. Banes is a shareholder with Neel, Hooper & Banes P.C., the Worklaw® Network member firm in Houston. 


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