On December 16, 2021, I filed an unfair labor practice charge against Fred Meyer. At the time, the United Food and Commercial Workers (UFCW) were striking Fred Meyer and the company was attempting to hire temporary replacement workers. As part of that strikebreaking effort, Fred Meyer put up signs in many of its stores that indicated it was hiring and that said that, in order to be hired, individuals must be “willing to cross a picket line.”
I am not employed by Fred Meyer and, at present at least (email me), I have nothing to do with UFCW. But I took advantage of the rule that “any person may file a charge” and filed a charge alleging that this sign violated Section 8(a)(1) and possibly Section 8(a)(3) of the National Labor Relations Act (NLRA). My theory was that refusing to hire someone because of their willingness or unwillingness to engage in protected activity (including not crossing a picket line) is a violation of Section 8(a)(3) and that the statement on the sign violated Section 8(a)(1) because it would coerce workers away from engaging in protected activity.
Like a lot of my charges, this charge was sent to the Division of Advice, which is where NLRB regional offices send cases that present novel legal questions. I did not think this was that novel of a theory, but I guess the region did not feel comfortable issuing a complaint against Fred Meyer absent some direction from the Division of Advice.
The Division of Advice sent the region a memo instructing the region that it should issue a complaint against Fred Meyer for the sign. Because this was a “go” memo — i.e. one that directs the issuance of a complaint rather than one that directs a dismissal of the case — the agency does not have to make this memo available to anyone outside the agency. So, even though I am the charging party, I am not able to see what the reasoning of the Division of Advice was in the memo. (The General Counsel could, at her discretion, release this memo and I hope she does.)
On August 28, 2023 — 620 days after I filed my charge — the NLRB region issued a complaint against Fred Meyer. The complaint included my charge against Fred Meyer as well as two charges filed by UFCW against Fred Meyer. The complaint also has an amusing caption with all of the parties where I am identified as simply “Matthew Bruenig, an Individual.”
The complaint indicated that a hearing over the charges would be held on July 23, 2024, which would have been 950 days after I filed my charge.
Five days before the hearing was scheduled to take place, on July 18, 2024, Fred Meyer settled the case. The settlement requires Fred Meyer to post the following notice physically in 34 stores, on the company’s intranet, and on the company’s public website.
So after 945 days, years after the relevant strike has ended, the only thing Fred Meyer is required to do to remedy its illegal activity is post a notice saying that it won’t do it again. This is not because the NLRB let Fred Meyer off easy. This is the full remedy that the NLRA actually allows.
And 945 days is actually a lot less time than it could have taken. If Fred Meyer wanted, it could have sat through the July 23, 2024 hearing, wrote a post-hearing brief, and chewed up another 140 days or so waiting for an Administrative Law Judge (ALJ) decision. From there, it could have filed exceptions to the ALJ decision and chewed up another 120 days or so waiting for the Board itself to weigh in on the ALJ’s decision. From there, it could have appealed the decision into the circuit court and chewed up some other undetermined amount of time.
Needless to say, waiting nearly 1,000 days to get a toothless remedy is a joke. In no other area of law would anyone say that this kind of delay combined with this kind of penalty is conducive to achieving legal compliance. And it doesn’t achieve it. Companies, in large part, ignore the NLRA. Even when you have very good appointees at the agency, this is the kind of thing the law, when maximally pursued, can deliver.
It is important to keep this in mind when thinking about what it means for a president or a political party to be pro-labor. Obviously some politicians and parties are more pro-labor than others. But any politician or party that is not pursuing a radical overhaul of US labor law to make it so that it actually functions as a law that employers are afraid to break is hard to take that seriously as a champion of labor.