FRED MEYER STORES, INC. AND ALLIED EMPLOYERS

National Labor Relations Board - Administrative Judge Opinions

Nov 14, 2012

19-CA-032908 (N.L.R.B. Nov. 14, 2012)

JD(SF)-52-12
Portland, OR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
FRED MEYER STORES, INC.
and Cases-19-CA-32908
19-CA-33052
ALLIED EMPLOYERS
and
UNITED FOOD AND COMMERCIAL WORKERS
LOCAL 367, AFFILIATED WITH UNITED FOOD
AND COMMERCIAL WORKERS
INTERNATIONAL UNION
Ann-Marie Skov, Esq., Seattle, WA, for
the Acting General Counsel.
Carson Glickman-Flora, Esq., Seattle, WA, for
the Union.
Richard J. Alli, Jr., Esq., and Jennifer A. Sabovik, Esq.,
Portland, OR, for the Respondents.
DECISION
Statement of the Case
GREGORY Z. MEYERSON, Administrative Law Judge. Pursuant to notice, I heard
this case in Seattle, Washington on July 24, 25, and 26, 2012. This case was tried following the
issuance of an Order Consolidating Cases, Consolidated Complaint and Notice of Hearing (the
complaint) by the Acting Regional Director for Region 19 of the National Labor Relations Board
(the Board) on February 29, 2012. The complaint was based on a number of original and
amended unfair labor practice charges, as captioned above, filed by United Food and
Commercial Workers Local 367, Affiliated with United Food and Commercial Workers
International Union (the Union or the Charging Party). It alleges that Fred Meyer Stores, Inc.
(Respondent Fred Meyer) and Allied Employers (Respondent Allied), collectively called the
Respondents, have violated Section 8(a)(5) and (1) of the National Labor Relations Act (the
Act). Further, it alleges that the Respondent Fred Meyer separately violated Section 8(a)(1) of
the Act. The Respondents filed timely answers to the complaint denying the commission of the
alleged unfair labor practices.1

1 All pleadings reflect the complaint and answers as those documents were finally amended
at the hearing. The Respondent Fred Meyer and the Respondent Allied each filed a separate
Continued
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All parties appeared at the hearing, and I provided them with the full opportunity to
participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to
argue orally and file briefs. Based upon the record, my consideration of the briefs filed by
counsel for the Acting General Counsel, counsel for the Respondents, and counsel for the
Union, and my observation of the demeanor of the witnesses,2 I now make the following findings
of fact and conclusions of law.
Findings of Fact
I. Jurisdiction
The complaint alleges, the Respondent Fred Meyer’s answer admits, and I find that at all
times material herein, the Respondent Fred Meyer has been an Ohio corporation, with offices
and places of business, inter alia, in Tacoma, Lacey, and Tumwater, Washington, where it has
been engaged in the retail grocery business. Further, I find that during the twelve month period
preceding the issuance of the complaint, the Respondent Fred Meyer in conducting its business
operations as just described, derived gross revenues in excess of $500,000; and during the
same period of time purchased and received at its facilities located in the State of Washington
goods valued in excess of $50,000 directly from points located outside the State of Washington.
Accordingly, I conclude that the Respondent Fred Meyer is now, and at all times material
herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The complaint alleges, the Respondents’ two answers admit, and I find that at all times
material herein, the Respondent Allied has been a non-profit multi-employer association owned
by its various employer members, including the Respondent Fred Meyer, who are engaged in
the retail grocery business, among other businesses, and represents its employer-members in
negotiating and administering collective bargaining agreements with various labor organizations,
including the Union. Further, it is stipulated by all parties, and I find, that at all relevant times,
the Respondent Fred Meyer, among other employer members, has delegated to the
Respondent Allied its representation in negotiating and administering collective-bargaining
agreements with the Union. (Jt. Ex. 18.)
Finally, all the parties stipulated and I find that for all relevant times, the Respondent
Allied and its employer members, including the Respondent Fred Meyer, have each and
_________________________
answer to the complaint. The General Counsel’s formal documents (G.C. Ex. 1) contain the
charges, amended charges, and affidavits of service establishing the dates upon which those
charges were filed with the Board and served on the Respondents, as alleged in the complaint.
Those formal documents include a Motion to Correct General Counsel Exhibit 1, filed by the
Acting General Counsel on September 24, 2012, and not opposed by the Respondents. That
Motion is hereby admitted into evidence as G.C. Ex. I(t).
2 The credibility resolutions made in this decision are based on a review of the testimonial
record and exhibits, with consideration given for reasonable probability and the demeanor of the
witnesses. See NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). Where
witnesses have testified in contradiction to the findings herein, I have discredited their
testimony, as either being in conflict with credited documentary or testimonial evidence, or
because it was inherently incredible and unworthy of belief.
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collectively been at all material times employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. (Jt. Ex. 18.)
II. Labor Organization
The complaint alleges, the Respondents’ two answers admit, and I find that at all times
material herein, the Union has been a labor organization within the meaning of Section 2(5) of
the Act.
III. Self-Determination Elections
All parties stipulated and I find that on or about April 24, 2009, in Case 19-RC-15036, a
majority of all regular full-time and part-time employees, clerks, and assistant managers working
in the Nutrition Department of the Respondent Fred Meyer’s Lacey and Tumwater, Washington,
retail stores (the “nutrition voting group”), in a self-determination election, designated and
selected the Union as their representative for the purposes of collective bargaining with the
Respondent Fred Meyer, to be included in the then existing Grocery Unit (the “Expanded
Grocery Unit.”). (Jt. Ex. 18.)
Further, all parties stipulated and I find that on or about June 17, 2009, in Case 19-RC-
15194, a majority of all regular full-time and part-time employees working in the Playland
Department of the Respondent Fred Meyer’s University Place retail store, located in Tacoma,
Washington (the “playland voting group”), in a self-determination election, designated and
selected the Union as their representative for the purpose of collective bargaining with the
Respondent Fred Meyer, to be included in the then existing Central Checkstand (CCK) Unit (the
“Expanded CCK Unit.”) (Jt. Ex. 18.)
The evidence establishes and the Board has concluded that the following employees of
the Respondent Fred Meyer in the Expanded Grocery Unit constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees
employed in [the Respondent Fred Meyer’s] present and future grocery stores in Mason-
Thurston Counties, State of Washington, and all regular full-time and part-time employees,
clerks, and assistant managers working in the Nutrition Department of [the Respondent Fred
Meyer’s] Lacey and Tumwater, Washington, retail stores; excluding Nutrition Department
Managers of the Lacey and Tumwater, Washington, retail stores, employees whose work is
performed within a meat, culinary, prescription or bakery production department location of the
retail establishment, [and] supervisory employees within the meaning of the Act.
On August 26, 2010, the Board found that based on Section 9(a) of the Act, the Union
has been the exclusive collective bargaining representative of the Expanded Grocery Unit. Fred
Meyer Stores, Inc., 355 NLRB No. 141, slip op. 2 (2010), incorporating by reference Fred Meyer
Stores, Inc., 354 NLRB No. 127 (2010) (Jt. Ex. 5, 7.).
Additionally, the evidence establishes and the Board has concluded that the following
employees of the Respondent Fred Meyer in the Expanded CCK Unit constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the
Act: All employees employed in [the Respondent Fred Meyer’s] Combination Food/Non-Food
Checkstand Departments in Pierce County and all future Combination Food/Non-Food
Checkstand Departments in Pierce County…and all regular full-time and part-time employees
working in the Playland Department of [the Respondent Fred Meyer’s] University Place retail
store, located in Tacoma, Washington; excluding guards, the Department Manager, two
Assistant Department Managers, and supervisors as defined in the Act.
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On August 26, 2010, the Board found that based on Section 9(a) of the Act, the Union
has been the exclusive collective bargaining representative of the Expanded CCK Unit. Fred
Meyer Stores, Inc., 355 NLRB No. 130, slip op. 2 (2010), incorporating by reference Fred Meyer
Stores, Inc., 355 NLRB No. 30 (2010) (Jt. Ex. 6, 8.).
IV. Alleged Unfair Labor Practices
A. The Undisputed History
Certain facts concerning the bargaining history of the parties are undisputed. Fred
Meyer owns and operates 131 retail stores in several states including Washington State. Of
those stores, 123 are considered to be “one stop” shopping stores selling a full line of
merchandise, including grocery and general merchandise items, such as apparel, home, photo,
electronics, and garden goods. These are very large stores, all over 100,000 square feet in
size. The remaining eight stores are called “marketplace” stores. They are less than 100,000
square feet in size and sell primarily grocery items, and do not sell home and apparel goods.
The Union (Local 367) represents approximately 1,000 employees at the Fred Meyer’s
stores within the Union’s jurisdiction which covers six Washington counties, Pierce, Mason,
Thurston, Pacific, Grays Harbor, and Lewis. In western Washington State (a.k.a. the “Puget
Sound” area) the Respondent Fred Meyer’s employees are represented not only by Local 367,
but also by United Food and Commercial Workers (UFCW) Locals 21 and 81, and in some
instances by Teamsters Local 38. The Respondent Allied represents the Respondent Fred
Meyer and other grocer employers such as Safeway and Albertsons in multi-employer
bargaining with the Union and with its sister UFCW locals that have jurisdiction over adjacent
geographical areas.
Historically, the grocery, meat, and CCK agreements expire on different dates every
three years, with the earliest expiration dates falling in May. The practice has been that the
multi-employer, multi-union negotiations for successor agreements would be held by the parties
in Seattle, King County, Washington. These negotiations are commonly referred to as the
“Seattle Negotiations,” and the settlement agreements resulting from those negotiations are
commonly referred to as the “Seattle Settlement.”
On April 24, 2009, a majority of the Nutrition Department employees3 at the Fred Meyer
one-stop stores in Lacey and Tumwater (both Thurston County) voted in a self-determination
election to be represented by the Union as part of the existing Mason/Thurston two-county
grocery unit. (Jt. Ex. 18.) The Certification of Representative issued on May 7, 2009. (Jt. Ex.
2.) On June 17, 2009, a majority of the Playland Department employees4 at the Fred Meyer’s
one-stop store in University Place (Pierce County) voted in a self-determination election to be
represented by the Union as part of the existing county-wide CCK unit. (Jt. Ex. 18.) The
Certification of Representative issued on December 8, 2009. (Jt. Ex. 4.)
As of June 26, 2009, the Respondent Fred Meyer refused to bargain with respect to the
Lacey and Tumwater nutrition employees to test the validity of the certification. (Jt. Ex. 5, 7, Jt.

3 The Nutrition Department is found within the food department and contains dietary
supplements, organic food products, other grocery items, and non-food items.
4 Playland areas are supervised play areas for shoppers’ children. Playland employees are
responsible for supervising the shoppers’ children among other tasks.
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Ex. 17 [U. 4 & U. 7.])5 As of November 5, 2009, the Respondent Fred Meyer refused to bargain
with respect to the University Place playland employees, again to test the validity of the
certification. (Jt. Ex. 6, 8, Jt. Ex. 17 [U. 5 & U. 6.])
On August 26, 2010, the Board found that the refusals to bargain violated Section
8(a)(5) of the Act.6 Further, on January 9, 2012 the Ninth Circuit Court of Appeals in an
unpublished decision granted the Board’s applications for enforcement of its orders requiring the
Respondent Fred Meyer to recognize and bargain with the Union about the terms and
conditions of employment for the nutrition and playland employees. (Jt. Ex. 9.)
In order to understand the issues that developed between the Respondents and the
Union during and after the 2010 negotiations, it is necessary to have a historical perspective by
first viewing earlier negotiations. From the testimony at the hearing, it appears uncontested that
prior to 2007, the Union (Local 367) was an active participant in the Seattle Negotiations.
However, during the 2004 negotiations matters changed for the Union.
Teresa Iverson testified at length at the hearing. Although currently retired, she was a
thirty seven year member of the Union and a former member of its executive board and its
President. She led the Union’s bargaining team during the 2004 Seattle Negotiations. Also
testifying at length at the hearing was Randy Zeiler, the President of the Respondent Allied
Employers, who has been the chief spokesperson for the grocery employers since 2001.
According to Zeiler’s testimony at an arbitration hearing, Iverson and her bargaining team
walked out of the 2004 negotiations before they were completed. (Jt. Ex. 16, p. 45.)7 The
grocery employers and the remaining UFCW Locals then agreed on a settlement for the
grocery, meat, and CCK agreements effective from 2004-2007. Wanting to protect Local 367’s
members after Local 367 walked out of the negotiations, the UFCW International
Representative present during the Seattle Negotiations informed Randy Zeiler of Allied
Employers that the grocery employers would have to offer the same settlement to Local 367 as
a condition of settlement with the remaining UFCW Locals. (Jt. Ex. 16, p. 45-46.)
According to Zeiler, he complied by offering the same settlement to Local 367 through
the federal mediator who had been assigned the 2004 Seattle Negotiations. Zeiler indicated
that he essentially took the 2004 Seattle Settlement, changed the names from Local 21 and 81
to Local 367, and presented it to Local 367. Zeiler testified that if Local 367 did not accept the
settlement as presented by him, then Local 367 would have had to bargain its agreements
separately with the Respondent Allied Employers. Although Local 367 initially rejected the
proposal, it ultimately accepted Zeiler’s offer, and once its members ratified the 2004 Seattle
Settlement, it applied the same settlement to all of its agreements. (Jt. Ex. 16, p. 46-47, Jt. Ex.
17, [E. 4, 5, 6, 8.])
Regarding the 2007 Seattle Negotiations, Zeiler testified both at this hearing and at an
earlier arbitration hearing that the relationship between the Union and the other UFCW Locals
was not good and that as a result, Local 367 was not invited to participate in the joint

5 References to Joint Exhibit 17 (Jt. Ex. 17) are to an arbitrator’s decision and exhibits
attached to it. That arbitrator’s decision will be more fully explained later in this decision.
6 Fred Meyer Stores, Inc., 355 NLRB No 141, slip op. 2 (2010), incorporating by reference
Fred Meyer Stores, Inc., 354 NLRB No. 127 (2010) (Jt. Ex. 5, 7.); Fred Meyer Stores, Inc., 355
NLRB No. 130, slip op 2 (2010), incorporating by reference Fred Meyer Stores, Inc., 355 NLRB
No. 30 (May 7, 2010) (Jt. Ex. 6, 8.)
7 The transcript from the arbitrator’s decision containing the testimony of Zeiler.
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negotiations. (Jt. Ex. 16, p. 48.) This contention was not denied by the Union. Further, Zeiler
testified, and a letter from Teresa Iverson, as President of the Union, to the membership of
Local 367, dated May 31, 2007, confirms that Iverson had proposed to Zeiler that the parties
execute an “interim/me-too agreement.” Iverson was concerned that if the Union were forced to
engage in individual bargaining with the Respondent Allied Employers that it would not by itself
be able to achieve successor grocery, meat, and CCK agreements that would improve upon any
settlement reached in the Seattle Negotiations. (Jt. Ex. 16, p. 48; Res. Ex. 1.)
The statements made by Iverson in the May 31, 2007 letter are very telling, and help to
explain the Union’s actions three years later. In this letter, Iverson explains to the members of
Local 367 that the Union had originally proposed to Zeiler “a two-step process, meaning that the
members would have voted first on whether to enter into an interim/me-two agreement, and
then later vote on whether to accept the proposal that emerges from the Seattle Negotiations.”
However, she explains that, “because the employers were not willing to allow ‘two bites of the
apple,’ the proposal agreed to by your employer has changed to a one-time vote on whether to
enter into an interim/me-too agreement that will bind us to the terms of the Seattle agreement,
whatever it will be, for better or for worse.” (Emphasis as in original) Iverson goes on to say
that the Me-Too Agreement would extend to the Union the same terms and conditions as are
approved and ratified by the Seattle Locals. Further, that “[t]his agreement is not intended to
change or modify that past application or interpretation of our agreement where their [sic]8
language differs from Seattle’s.” In closing, Iverson and the Union Executive Board
recommended that the members vote to approve the Me-Too Agreement in this one-time vote
process. (Res. Ex. 1.)
Enclosed with the May 31, 2007 letter were “Voting Instructions.” In part those
instructions read: “You are voting on whether you accept the me-too proposal described in this
mailing. This means all changes approved and ratified by the members in Seattle will be the
same for Local 367 Grocery, Meat, and CCK contracts.” (In the original, the entire sentence is
in bold type.) (Res. Ex. 1, p. 4.)
The result of the vote was announced to the members in a letter from Iverson dated
June 2007. She indicated that “the members overwhelmingly accepted the offer of an interim
me-too agreement…” Further, she explained that “whatever settlement emerges from the
Seattle negotiations, if it is accepted and ratified by the members in Seattle, will be applied to
Local 367’s contracts with Allied-represented employers throughout our jurisdiction.” Apparently
Iverson felt the need to continue to justify the Me-Too Agreement approach to the membership
because she went on to say that without that agreement, “[t]he major concern was that the
employer group would bargain an agreement with Locals 21 and 81 in Seattle, and then present
a worse proposal to members of Local 367.” In closing, she assured her members that now
they know that “they will not have a lesser settlement than the members in Seattle.” (Res. Ex.
1, p. 5.)
As the expiration of the 2007 contract approached, the Union apparently asked Locals
21 and 81 to allow Local 367 to bargain alongside them in the upcoming Seattle Negotiations.
In a letter dated April 2010 sent to the Union’s members, Iverson indicated that such a proposal
had been made by the Union, but was rejected by Locals 21 and 81. (Res. Ex. 3.) Once again,
the Union, by Iverson, explained to its members its concern “that the employers will try to reach
an agreement in Seattle and then present a much worse proposal to member of Local 367.” For
that reason, the Union had proposed to Respondent Allied Employers an “interim/me-to

8 Instead of “their,” I believe Iverson meant “our.”
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agreement.” According to Iverson’s letter, “Allied Employers signed an interim/me-too
agreement that will bind us to the terms of the Seattle agreement whatever it will be. This
document is identical to the agreement Local 367 members voted to accept in 2007. If
accepted by Local 367 members, the interim/me-too agreement will extend the same terms and
conditions to us as are approved and ratified by members of Local 21 and 81, while maintaining
the effective dates of our contracts and any terms that are unique or different in our
agreements….This agreement is not intended to change or modify the past application or
interpretation of our agreements where their language differs from Seattle.” (Emphasis
added by the undersigned.) (Res. Ex. 3.)
Further, in closing the letter stated: “In summary, you are voting on whether you accept
the interim/me-too proposal described in this letter. This means all changes approved and
ratified by the members in Seattle (Locals 21 and 81) will be the same for Local 367, Grocery,
Meat, and Fred Meyer CCK contracts on their effective dates.” (Emphasis added by the
undersigned.) As Iverson indicated that she “did not believe that we can exceed the agreement
that will be bargained in Seattle,” and, thus, recommended approval of the proposal. (Res. Ex.
3.) The Union’s members ratified the 2010 Me-Too Agreement on April 27, 2010.9 (Res. Ex. 4.)
During the 2010 negotiations in Seattle, the Respondent Allied Employers and UFCW
Local 21 agreed to specifically exclude the nutrition and playland employees from coverage
under the grocery and CCK agreements, respectively. They agreed to a “Letter of
Understanding #12,” which modified the grocery agreement, as it applied to Respondent Fred
Meyer, by adding exclusions to the agreement’s recognition clause. Among those exclusions
were employees in the Nutrition and Playland Departments. (G.C. Ex. 7, p. 13.) They also
agreed to modify the language in the recognition clause in the CCK agreement with Fred Meyer
by excluding, among other employees, those employees in the Nutrition and Playland
Departments. (G.C. Ex. 7, p. 20.) The members of Locals 21 and 81 ratified the new Seattle
Settlements, which contained the modified recognition and bargaining unit clauses, on about
December 3, 2010. Further, it is important to mention that the settlements provided for a lump
sum ratification bonus that amounted to about $500 for full-time employees.
It is undisputed that the interim Me-Too Agreement entered into between the
Respondents and the Union regarding the 2010 Seattle Settlement Agreement provided that
either party may request expedited arbitration to resolve any disputes that arise under its terms
or the application of the Local 21/81 settlement to the Union’s agreement. (Jt. Ex. 10.) Further,
no party contends that prior to the execution of the 2010 Me-Too Agreement there was any
discussion between the Respondents and the Union specifically regarding the removal of the
nutrition or playland employees from their respective bargaining units. Also, it is uncontested
that the Union did not communicate with Locals 21 and 81 while the 2010 negotiations were
taking place in Seattle, and that the Union did not attend any of the negotiation sessions. The
Union only learned that the negotiations had been successfully completed when so advised by
the Respondents.

9 It should be noted that during Iverson’s initial discussions with Zeiler on an interim Me-Too
Agreement in 2010, she did ask for one change to the language. She proposed language
saying that if an arbitrator had to interpret any part of the Seattle Settlement Agreement, the
arbitrator would only consider the bargaining history between Local 367 and the Employers.
However, Zeiler rejected the change since there was no actual bargaining between the parties
to a Me-Too Agreement (the Union and the Respondent Allied Employers), and, thus, no
bargaining history for an arbitrator to consider. Iverson subsequently dropped her request. (Jt.
Ex. 16, p. 53-54.)
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In early December 2010, the Respondent Allied sent the Union an email expressing an
interest in finalizing the Union’s contracts so all of the Union represented employees could
receive their lump sum bonuses by the end of the month. The Union responded that it had
concerns regarding the settlements and stated that the changes to the unit description in the
CCK and grocery agreements did not apply to its units. In response, Zeiler sent Iverson an
email dated December 8, 2010, in which he said: “The FM exemptions in CCK and Grocery and
LU #12 are parts of the UFCW 21 King-Snohomish Grocery and CCK settlements. The March
18, 2010 ‘Me Too’ Agreement states that the Employers agree to extend the same settlement
to members of Local 367 members [sic]. Therefore, we disagree with your belief that these
would somehow not apply to Local 367 members. We need to know your reasoning on this as
soon as possible because it is not compatible with the ‘me too’ you signed in March.”
(Emphasis as in original.) (G.C. Ex. 7, 8, 9.) Zeiler sent Iverson a follow-up email on December
12, 2010, in which he made it clear that “[t]he ratification lump sum will not be processed or paid
until you advise that you are in agreement that all the terms of the UFCW 21 and UFCW 81
settlements apply to Local 367 with no exceptions per the 'me too’ agreements.” Iverson
responded by email the following day, saying the Union did not agree that the “Letter of
Understanding” applied to Local 367 and did not agree with the Respondents’ “plan to hold up
the lump sum.” Further, she said, “There is an arbitration provision in the me-too agreement
that Allied signed off on. If you disagree with me, let’s look at that provision.” (G.C. Ex. 9.)
By letter dated December 15, 2010, addressed to Zeiler, Iverson requested that the
Respondents implement all terms of the grocery, meat, and CCK settlement agreements
forwarded to Local 367 on December 3, 2010, except for five specifically enumerated items with
which the Union disagreed. Item number 1 was: “The exclusions from the bargaining unit set
forth in the recognition clause of the CCK agreement;” and item number 2 was: “The exclusions
from the bargaining unit set forth in Letter of Understanding #12 in the Grocery agreement.”
Further, Iverson argued that, “[t]he first two provisions are directly contrary to NLRB decisions
between Local 367 and Fred Meyer. Local 367 did not authorize, through the ‘Me-Too’
agreement, the parties to invalidate arbitral and administrative decisions between Local 367 and
our members.” Additionally, Iverson indicated that the Union was going to request expedited
arbitration regarding the disputed items under the Me-Too Agreement. (G.C. Ex. 10.)
Thereafter, the parties agreed to submit their dispute to expedited arbitration pursuant to the
terms of the 2010 Me-Too Agreement.
On January 5, 2011, the Respondent Fred Meyer posted a notice at its stores addressed
to Associates stating that the Union had signed a Me-Too Agreement requiring it to “accept the
same settlement” that the Employers had reached with Locals 21/81 without further
negotiations. The notice further stated that, “[u]nfortunately, after the settlement was ratified by
your coworkers in Locals 21 and 81, your Union refused to accept it as they had agreed. As a
result, we cannot pay you a ratification bonus or move forward on any other contract provisions
until this matter is resolved.” Also, the notice stated that while the Respondent Fred Meyer
wanted to pay the ratification bonus quickly, payment might have to wait until the dispute could
be resolved through arbitration, a process the length of which was uncertain. (G.C. Ex. 13.)
The parties agreed to submit their dispute to expedited arbitration pursuant to the terms
of the 2010 Me-Too Agreement.10 The arbitration hearing was held on March 2, 2011, to

10 Technically, the parties to the arbitration were Local Union 367 and Allied Employers, who
were the parties to the Me-Too Agreement. However, at the hearing both the Respondents
were represented by different representatives, Allied Employers by its President, Randall Zeiler,
Continued
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address the issue of whether the Me-Too Agreement required the parties to apply the Local
Union 21/81 unit exclusions to the Union represented CCK and grocery units, as well as several
other unrelated matters. (Jt. Ex. 16.) On March 24, 2011, the arbitrator issued his decision and
award. (Jt. Ex. 13.) Among other conclusions, the arbitrator found that Allied Employers
breached the terms of the 2010 Me-Too Agreement by insisting that the Local Union 367
agreements include provisions in the grocery and CCK agreements excluding workers currently
represented by Union 367, namely the Lacey/Tumwater nutrition and University Place playland
employees. He also found that the Respondent Allied Employers had not breached the Me-Too
Agreement by refusing to implement the ratification lump sum bonuses for Local Union 367
members prior to resolution of the dispute before the arbitrator. As a remedy for the violation,
he ordered the parties to “retain the status quo with regard to the scope of the bargaining unit.”
He defined the status quo as being the status reflected in the Board’s August 26, 2010 Orders,
which were at the time still on appeal to the Ninth Circuit Court of Appeals. Further, the
arbitrator ordered the Respondent Allied Employers to “promptly” distribute the lump sum
bonus. (Jt. Ex. 13.) It is undisputed that following the arbitrators award, the Respondent Fred
Meyer distributed the lump sum bonus to the unit employees represented by the Union, with the
exception of the nutrition and playland employees.
B. The Dispute
The principal dispute between the parties is whether the Me-Too Agreement between
the Respondent Allied Employers and the Union effectively removed the Nutrition Department
employees at the Respondent Fred Meyer’s Lacey and Tumwater stores from what has been
referred to as the Expanded Grocery Unit, and also effectively removed the Playland
Department employees at the Respondent Fred Meyer’s University Place store from what has
been referred to as the Expanded CCK Unit. The Respondents take the position that the
Nutrition Department employees have been so removed such that the Grocery Agreement that
went into effect, with effective dates from October 3, 2010 to October 5, 2013 (Jt. Ex. 14.), does
not apply to them; and that the Playland Department employees have been so removed such
that the CCK Agreement that went into effect, with effective dates from May 10, 2010 to May 4,
2013 (Jt. Ex. 15.), does not apply to them. Concomitantly, the Respondent Fred Meyer has
refused to apply the terms and conditions of those respective contracts to the nutrition and
playland employees, and has also refused to include them in the payment of lump sum
bonuses. Presumably, the Respondents stand ready to bargain with the Union over the initial
terms and conditions of employment of the nutrition and playland employees, independent of
those terms and conditions negotiated in the Grocery and CCK Agreements.
Of course, the Union and Counsel for the Acting General Counsel take the opposite
position, contending that the Me-Too Agreement was never intended by the parties
(Respondent Allied Employers and the Union) to authorize the removal of the nutrition and
playland employees from their respective Expanded Units, those units to which they were
included by virtue of the self-determination elections in 2009. The General Counsel contends
that by failing to apply all the terms and conditions of the current Grocery and CCK Agreements,
respectively, and to pay the lump sum bonuses, to the nutrition and playland employees, that
the Respondents have violated Section 8(a)(1) and (5) of the Act.
Further, it is the General Counsel’s position that the Respondents must still negotiate
over certain “unique” terms and conditions for the nutrition and playland employees, which
_________________________
and Fred Meyer by its Vice-President for Human Resources, Carl Wojciechowski. Both men
also testified at the hearing before the undersigned.
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“unique terms” are not encompassed by the “general terms” of the current Grocery and CCK
Agreements, and that by failing to do so, the Respondents are also violating Section 8(a)(1) and
(5) of the Act. However, it is unclear to the undersigned specifically which terms and conditions
of employment that the General Counsel considers “unique.” In any event, the Respondents’
argue that as the “general” terms and conditions of the Seattle Agreements do not apply to the
nutrition and playland employees represented by the Union that there are no specific “unique”
terms and conditions over which to negotiate.
The secondary dispute between the parties involves the Respondent Fred Meyer’s
posting of a notice to its associates on January 5, 2011, informing them that the Union was
refusing to honor the terms of the Me-Too Agreement, which then allegedly caused the
Employer’s failure to pay the lump sum bonuses. According to the Acting General Counsel and
the Union, this statement was factually incorrect and served to disparage and denigrate the
Union in violation of Section 8(a)(1) of the Act. To the contrary, the Respondent Fred Meyer
contends its statements in the posted notice were both factually accurate and an expression of
free speech specifically protected under Section 8(c) of the Act and by the First Amendment of
the United States Constitution. Accordingly, as the posted notice allegedly contained no threat
of reprisal, or force, or promise of benefit, the Respondent Fred Meyer argues that it did not
constitute a violation of the Act.
C. Analysis and Conclusions
The first issue that must be addressed is to what extent I am required to follow the
arbitrator’s decision in this case. Counsel for the Union in her post-hearing brief argues that I
must defer to that decision. While Counsel for the Acting General Counsel does not specifically
say so in her post-hearing brief, her arguments suggest that she agrees with Union counsel that
deferral to the arbitrator’s decision is appropriate in this case. Counsel for the Respondents
argues otherwise, and I am in agreement with that argument.
The Board has historically held that “the determination of questions of representation,
accretion and appropriate unit do[es] not depend on contract interpretation but involve[s]
application of statutory policy, standards and criteria. These matters are for the decision of the
Board rather than an arbitrator.” Marion Power Shovel Co., Inc., 230 NLRB 576, 577-78 (1977),
citing Combustion Engineering, Inc., 195 NLRB 909 (1972); Hershey Foods Corp., 208 NLRB
452 (1974).
In my view, the unit determination issue is of paramount importance in this case,
superseding the contractual issues upon which the arbitrator was ruling. The Board, of course,
is capable of analyzing the contractual issues concerning whether the Me-Too Agreement was
intended to bind the parties to all the terms of the Seattle Agreement, including the removal of
the nutrition and playland employees from the two respective bargaining units. Further, the
ultimate issue of unit composition does not lend itself to an arbitrator’s decision. Therefore, it is
efficient and logical not to defer to the arbitrator’s decision in this case, but, rather, to have the
undersigned, and ultimately the Board, decide both the contractual issue and the unit
composition issue that naturally flows from it. This rationale is further strengthened by the fact
that the Board has already addressed the underlying issue of unit determination when it
originally ruled on the inclusion of the nutrition employees in the Expanded Grocery Unit and on
the inclusion of the playland employees in the Expanded CCK Unit. Accordingly, I conclude that
the arbitrator’s decision in this matter is not authoritative or binding on the undersigned, and I
decline to defer to that decision.
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Towards the end of the hearing in this case, after having received all the testimonial and
documentary evidence, I asked the parties to consider the question of whether the Respondents
and the Union had ever reached a “meeting of the minds” during negotiations regarding
specifically what terms and conditions of employment the Me-Too Agreement was to cover. I
specifically requested that all counsel address this issue in their respective post-hearing briefs.
While counsel for the Acting General Counsel and counsel for the Respondents did so, there is
no mention of this issue in counsel for the Union’s post-hearing brief.
Counsel for the Acting General Counsel contends that there was a meeting of the minds
between the parties and that the purpose of the Me-Too Agreement was to extend the contract
settlement reached in the 2010 Seattle Negotiations between the Respondents and Locals
21/81 to all collective bargaining agreements within the Union’s jurisdiction with the exception
that certain language changes would not be included in Union Local 367’s agreements,
presumably where the original language was more beneficial to the employees represented by
the Union. It is the General Counsel’s contention that this language exception encompasses
non-economic benefits, and the Me-Too Agreement was only going to apply to economic
benefits.
In support of this argument, Counsel for the General Counsel makes reference to
language in both the 2007 and 2010 Me-Too Agreements. The 2010 language is as follows:
“The parties agree that all changes made in King County Local 21 and 81 settlements that are
approved and ratified by members of Local 21 and 81 will be the same as those made in Local
367’s agreements, but that the difference in language between the King County Local 21/81
agreement and Local 367’s agreements will be preserved. For example, if a 50-cent increase in
wages should be agreed to in King County Local 21/81, then the same 50-cent increase would
be applied to Local 367’s agreements. In the same sense, if a holiday should be dropped in
King County Local 21/81 settlements, then the same holiday would be dropped in the settlement
applied to Local 367’s agreements.” The 2007 language is substantively the same, with only
minor differences. (Jt. Ex. 17, [E. 9, p. 2-4]; Jt. Ex. 10.)
Further, counsel for the General Counsel points out that the question of whether the
parties have reached a “meeting of the minds” is determined “not by the parties’ subjective
inclinations, but by their intent as objectively manifested in what they said to each other.” MK-
Ferguson Co., 296 NLRB 776 fn.2 (1989); Also see Crittenton Hospital, 343 NLRB 717, 718
(2004). Counsel argues that the above-cited language in the Me-Too Agreements in both 2007
and 2010 establish the parties’ objective intent. While I certainly agree with that legal premise, it
is not clear just what the parties meant by the above language. Clearly the Me-Too Agreement
applied to economic terms, such as wages and fringe benefits like vacations, but did it go so far
as to apply to the exclusion of the nutrition and playland employees from the two respective
bargaining units? In my opinion, the intent of the parties regarding the central issue before me
has simply not been objectively manifested based on the reading of the Me-Too Agreement
and/or by the parties bargaining history.
At the time the parties agreed to the 2007 Me-Too Agreement, there was no issue
regarding the nutrition and playland employees as they were plainly not part of the various units
represented by the Union. On the other hand, while at the time of the 2010 Me-Too Agreement
the nutrition employees had been included in the Expanded Grocery Unit and the playland
employees had been included in the Expanded CCK Unit, the appropriateness of those
inclusions were still being challenged by the Respondent Fred Meyer before the Board.
Therefore, I am convinced that at the time the 2010 Me-Too Agreement was executed by the
parties, neither the Respondents’ representatives nor the Union’s representatives were
specifically thinking about the nutrition and playland employees when they drafted the language
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in the Agreement.
Counsel for the Respondents believe that the parties reached a “meeting of the minds”
as to what the 2010 Me-Too Agreement covered, albeit a very different one than that argued by
the Union and Counsel for the General Counsel. The Respondents contend that the reference
in the Agreement to “difference in language between the King County Locals 21/81 agreements
and Local 367’s agreements [being] preserved” related only to items similar to those examples
set forth in the Agreement, namely wages and fringe benefits. So, for example, if the Seattle
Negotiations resulted in a 50-cent increase, the Local 367 represented employees would also
get a 50-cent increase, but not the same underlying wage rate, assuming Local 367’s members
were paid a different underlying rate than those of Locals 21/81. According to the Respondents,
these differences in language did not related to matters of unit composition, such as excluding
the nutrition and playland employees from their respective units.
The Respondents argue that the Union explicitly gave its bargaining rights to Locals
21/81, in that it specifically agreed to accept whatever contract Locals 21/81 negotiated, with the
caveat that “difference in language” would be preserved.11 That does essentially appear to be
correct. But, the questions remains, what did the parties mean by the exception in the Me-Too
Agreement for a “difference in language?” Unfortunately, I do not believe that the language is in
any way objectively clear and unambiguous.12 Therefore, it is necessary to attempt to
determine the subjective intent of the parties through the use of extrinsic evidence. See, e.g. R.
J. E. Leasing Corp., 262 NLRB 373, 379 (1982).
A number of witnesses testified regarding their understanding of the parties’ intent during
the 2010 negotiations over the Me-Too Agreement. The most important of these witnesses
were Teresa Iverson, the Union President during the period in question and the principal union
negotiator, Randy Zeiler, the President of Allied Employers and the principal negotiator for the
Respondents, and Carl Wojciechowski, the Vice President of Human Resources for the
Respondent Fred Meyer. In determining the subjective intent of the parties to the negotiation of
the 2010 Me-Too Agreement, it would seem to be important to analyze the credibility of the
principal negotiators. As I have discussed, there really exists no tangible piece of documentary

11 I do not believe that Locals 21/81 by virtue of the Me-Too Agreement became “agents” of
the Union, as Locals 21/81 had never consented, so far as the evidence shows, to act on behalf
of the Union. Further, the Union’s execution of the Me-Too Agreement did not by itself
constitute a reasonable basis for the Respondents to conclude that Locals 21/81 was being
given such apparent authority by the Union.
12 The attorney’s discuss in their respective briefs what the parties meant in their
communication by the term “blank check.” However, I do not believe that there is a real dispute
here, as it is clear that the reference was to not permitting the members of the Union to have
two votes or “two bites of the apple” on whether to be bound by the Seattle Negotiations, as in
an initial vote to accept or reject the Me-Too Agreement and, if accepted, having a second vote
to accept or reject the Locals 21/81 negotiated contract. It was the Respondents’ position,
ultimately agreed to by the Union, that the union members would only have one vote, that being
on whether or not to accept the Me-Too Agreement, and, if accepted, there would be no second
vote. It is also clear to the undersigned that the term “blank check” did not apply to the Union’s
position regarding the parameters of the Me-Too Agreement, as the Union never explicitly
agreed that by virtue of the Me-Too Agreement it was totally bound by those terms and
conditions negotiated in Seattle. There still remained the caveat of “difference in language,”
which the Union was relying on to offer it some protection. However, the phrase “difference in
language” apparently meant something very different to the Respondents.
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evidence or “smoking gun,” as would establish definitively what the parties meant by the
“difference in language” reference in the Me-Too Agreement. Therefore, I am left to largely rely
on the testimony of the principal witnesses as to their intent during the negotiations.
Perhaps somewhat unusual for a case such as this, I found all the principal witnesses to
be thoroughly credible. Iverson, Zeiler, and Wojciechowski all testified in detail, without rancor,
were cooperative, and genuinely seemed interested in answering all question accurately, both
on direct and cross-examination. Obviously, they were biased in favor of their respective
parties. However, I did not get the sense that they were being at all disingenuous or were
attempting to exaggerate or embellish the events over which they were testifying.
In particular, Iverson and Zeiler testified in detail about the events leading up to the
execution of the 2010 Me-Too Agreement. Neither contends that there was any specific
discussion of the unit composition as it related to the nutrition and playland employees, and it is
obvious that there was no such discussion because the legal question regarding those
employees was still on appeal.
Zeiler’s testimony at the hearing was a mirror image of his testimony before the
arbitrator. (Jt. Ex. 16.) He insisted that the intent of the Me-Too Agreement was to bind the
Union to the same terms and conditions of employment, both economic and non-economic, as
that agreed to in the Seattle Negotiations, with the exception of certain language differences.
His testimony is supported by that of Wojciechowski who testified that in 2010 he and other
representatives of those employers represented by Allied Employers discussed with Zeiler the
possibility of the Union signing a Me-Too Agreement. According to Wojciechowski, the
“employer group” was “very emphatic about the fact that [the Me-Too Agreement] had to be no
restrictions.” By no restrictions they meant “whatever settlement we agreed to with Local 21,
that settlement would apply to Local 367.” Further, he testified that the executed 2010 Me-Too
Agreement with the Union had as its only exception to what was agreed to in Seattle, “some
language preservations that they had in the contract.” In support of the testimony of Zeiler and
Wojciechowski, counsel for the Respondent relies in part on a letter dated May 31, 2007 from
Teresa Iverson to the Union’s membership describing that Me-Too Agreement as “bind[ing] us
to the terms of the Seattle Agreement, whatever it will be, for better or for worse.” As has been
noted above, the 2007 and 2010 Me-Too Agreements were for the most part identical.
For her part, Iverson testified that while the language of the 2007 and 2010 Me-Too
Agreements may have been almost identical, the unit composition had changed, since in 2007
the nutrition and playland employees were not yet part of the grocery and CCK units. According
to Iverson, the provision in the 2010 Me-Too Agreement permitting the Union’s contract to
deviate from that negotiated in Seattle where there was a “difference in language” took on extra
meaning because, unlike in 2007, by 2010 the unit composition had changed. However,
Iverson does not suggest that prior to the execution of the 2010 Me-Too Agreement that there
was any discussion regarding the nutrition and playland employees or how the Seattle
Negotiations might affect those employees.
Having determined that all the principal witnesses testified credibly, I conclude that the
Respondents and the Union simply viewed the 2010 Me-Too Agreement differently. So
differently in fact that I am of the view there was no “meeting of the minds” as to what was
encompassed by that agreement. As is uncontroverted, there was no specific discussion about
the nutrition and playland employees. In the mind of Iverson, the union negotiator, there was no
reason why she would have considered the possibility that the Local 21/81 negotiators in Seattle
would agree to contract language removing them from the contract’s coverage, and resulting in
the elimination of those employees from their respective bargaining units in Union Local 367’s
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jurisdiction. On the other hand, while Zeiler and Wojciechowski were just as unlikely to have
specifically considered the nutrition and playland employees, if they had, from their view of the
negotiations, there was no reason why they would not have considered their elimination from
the bargaining units in Seattle to be binding on the Union.13
Zeiler and Iverson were simply not communicating with each other about the nutrition
and playland employees. Further, to the extent that the Me-Too Agreement provided for an
exception for a “difference in language” to the complete adoption of the Seattle Settlement by
the Union, the two negotiators appeared to be “talking past each other” as their understanding
of that reference was totally at variance.
Having concluded that the parties did not have a “meeting of the minds” regarding the
Me-Too Agreement, I must still decide where that leaves the parties, and whether the Act has
been violated by the Respondents’ refusal to apply the terms of the Seattle Contract to the
nutrition and playland employees represented by the Union, including payment of the lump sum
ratification bonus. To begin with, I am of the view that the Union continues to represent the
nutrition and playland employees in their respective Expanded Units.
It is a deeply rooted principle that the Board requires that a waiver of a statutorily
protected right must be “clear and unmistakable.” NLRB v. Southern California Edison Co., 646
F.2d 1352, 1364 (9th Cir. 1981); Tocco Division of Park-Ohio Industries, 257 NLRB 413, 413-14
(1981) (noting that a union may waive a statutory right to bargain, but the Board requires a
waiver to be found in “’express contract language or unequivocal extrinsic evidence bearing
upon ambiguous contractual language’”); Kansas National Education. Ass’n, 275 NLRB 638,
639 (1985) (“It is well settled that a union has a statutory right to be consulted about a change
affecting the terms and conditions of employment. The union may waive this right; such a
waiver may not be lightly inferred but must be ‘clear and unmistakable.’”). The Board has
further established that “once a specific job has been included within the scope of a bargaining
unit by either Board action or consent of the parties, the employer cannot unilaterally remove or
modify that position without first securing the consent of the union or the Board. Wackenhut
Corp., 345 NLRB 850, 852 (2005). In other words, one cannot divine a “clear and unmistakable
waiver,” as it either exists or does not exist.
In the matter before me, the record unequivocally indicates that there was no “clear and
unmistakable” waiver by the Union as to the bargaining rights of the nutrition and playland
employees. In fact, the record establishes quite the opposite. The 2010 Me-Too Agreement
facially contains no language regarding the exclusion of either of these groups nor does it
mention any type of waiver to unit scope or unit composition, changes that could be bargained
as part of the Seattle Agreement. Rather, the face of the 2010 Me-Too Agreement suggests
that such changes to the bargaining units’ scope and composition were not even contemplated
during the 2010 Me-Too Agreement negotiations. This assertion is fortified by the fact that there
exists no evidence in the record to suggest that the Union manifested any intent on any level to
waive its bargaining rights with respect to the scope and composition of the two bargaining
units. Accordingly, the Union not having waived its right to represent the nutrition and playland
employees, they continue to remain as part of their respective bargaining units.

13 The elimination of employees from a bargaining unit, while not a mandatory subject of
bargaining, is certainly a permissive subject of bargaining. See Boise Cascade Corp. v. NLRB,
860 F.2d 471 (D.C. Cir. 1988); The Grosvenor Resort, 336 NLRB 613, 617 (2001).
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Having concluded that the Union did not waive its right to continue to represent the
nutrition and playland employees in their respective units, I must still decide what happens to
the employees represented by the Union in light of my finding that the parties did not have a
“meeting of the minds” regarding the 2010 Me-Too Agreement. Preliminarily, the Board
decision in Fred-Mogual Corp., 209, NLRB 343, 344 (1974) is very instructive regarding the
issue of bargaining where groups of employees have voted to be included in existing units of
employees. That is an analogous situation to the one before me.
In Fred-Mogual, the employer and the union had an existing contract in effect at the time
that a group of employees voted to join the existing unit. The Board held that the employer
became obligated to engage in good faith bargaining as to the terms and conditions of
employment to be applied to this new addition to the previous unit. Further, the Board held that
the employer committed an unfair labor practice when it insisted that the new group of
employees simply be covered by the existing agreement. The parties’ obligation to bargain
existed despite the fact that there was a contract in existence that provided for the terms and
conditions of employment for the previous unit. The Board, citing H.K. Porter Co., Inc. v. NLRB,
397 U.S. 99 (1970), noted that while it has the power to order parties to negotiate, it does not
have the authority to compel a company or a union to agree to any substantive contractual
provision of a collective-bargaining agreement. Additionally, the Board held that where the
union was opposed to simply covering the new group with the existing contract, the employer
must bargain for interim terms and conditions for the new group, and, if agreement is reached,
to enter into an interim contract. Then, when the existing contract covering the original
employees in the unit expires, the parties are expected to negotiate for one collective-bargaining
agreement covering all the employees in the new expanded unit. Thereafter, while a single
contract may certainly contain special or separate classifications and conditions for specific
groups of employees within the one newly expanded unit, it will do so under the general terms
of one contract.
While it is true that the expression “meeting of the minds” does not require that both
parties have the identical subjective understanding on the meaning of material terms of
agreement, the terms themselves must be unambiguous judged by a reasonable standard.
Diplomat Envelope Corp., 263 NLRB 525, 535-36 (1982). However, I believe that in the matter
before me, the parties’ understanding of what the Me-Too Agreement encompassed was so
divergent as to preclude any true “meeting of the minds.” Having concluded that the parties did
not reach a “meeting of minds” concerning the meaning of the 2010 Me-Too Agreement, I must
now address how such a failure affects both the employees in the original Grocery and CCK
Units, and how it affects the nutrition and playland employees, now included, respectively, in
those Expanded Units.
At first blush, it might appear under general contract principles that without a “meeting of
the minds” regarding the Me-Too Agreement that the Union and the Respondents had not
entered into a binding 2010 contract. Sunrise Nursing Home, Inc., 325 NLRB 380, 389 (1998).
However, the Board is not strictly bound by the technical rules of contract law, but rather is free
to use the general contract principals that are adapted to the collective bargaining context.
NLRB v. Electra-Food Machinery, Inc., 621 F.2d 956, 958 (9th Cir. 1980) (determining whether
an oral agreement between the parties had been reached); Lozano Enter. V. NLRB, 327 F.2d
814, 818 (9th Cir. 1964) (noting that, while the employer’s arguments were sound in contract
law—the employer’s employee was truly not an agent and could not bind the employer to a
contract—technical contract law does not always state good collective bargaining law). In fact,
in the context of labor disputes, particularly Section 8(a)(5) violations, the crucial inquiry is
whether the two sides have reached an “agreement,” even though the “agreement” might fall
short of meeting all the technical requirements of an accepted contract. NLRB v. Donkin’s Inn.,
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532 F.2d 138, 141 (9th Cir. 1976), cert. denied, 429 U.S. 895 (1976).
Counsel for the Acting General Counsel argues in her brief that a finding that there was
no “meeting of the minds” concerning the Me-Too Agreement “would unnecessarily disrupt the
labor stability” for thousands of employees in the Union’s CCK and Grocery Agreements
covered by the Seattle Negotiated Contracts. Colgate-Palmolive-Peet Co., 338 U.S. 355, 362
(1949) (primary objective of Congress in enacting the National Labor Relations Act was
achieving stability of labor relations). However, there is no logical reason to disrupt the
contractual relationship established by the 2010 Agreement as that contract applies to the
original CCK and Grocery Units. There is no dispute that under the Me-Too Agreement the
terms and conditions of the Seattle Negotiated contracts apply to all the employees represented
by the Union in the respective units, before they were expanded. The only failure to reach a
“meeting of the minds” was in regard to the nutrition and playland employees. While strict
contract principles would seem to require that without a “meeting of the minds” on the Me-Too
Agreement there is no contract covering the employees in the two units, the latitude afforded
agreements in the collective bargaining context would mitigate against such a harsh finding.
The need for labor stability and the fact that the parties have been living under the terms
of the Seattle Negotiated contracts for more than two years for all unit employees with the
exception of nutrition and playland, would well serve to maintain those contracts in effect for all
but the two classifications in question. See DST Insulation, Inc., 351 NLRB 19 (2007) (in which
the Board held that a binding agreement may be formed even when the parties have not
reduced to writing their intent to be bound if the party at issue has engaged in a course of
conduct that reflects its intent to follow the terms of the agreement). Therefore, I conclude that
the Respondents and the Union did reach agreement on the terms of contracts covering the
CCK and Grocery Units represented by the Union for a term of three years (Jt. Ex. 14 and
15.)14, with the exception of the nutrition and playland employees. Accordingly, those contracts
remain in full force and effect as they relate to the employees in the CCK and Grocery Units
represented by the Union, with the exception of the nutrition and playland employees.
As to the nutrition and playland employees, while I conclude that they remain part of
their respective Expanded Units, because the parties failed to reach a “meeting of the minds”
regarding the Me-Too Agreement and its application of the Seattle Negotiated Settlement to
these two classifications, I conclude that they are not covered by the contracts in effect for the
other members of their respective units. Of course, the further question which remains is what
then happens to the nutrition and playland employees. I am of belief that the answer to that
question is found in the case of Federal-Mogual Corp., supra.
For the reasons expressed above, the nutrition and playland employees remain part of
their respective Expanded Units. The Board and the Court of Appeals have already settled the
appropriateness of those units. Under Federal-Mogual, the Respondent Fred Meyer is
obligated to bargain with the Union over the terms and conditions of employment of the nutrition
and playland employees, assuming the Union makes such a request, and, if agreement is
reached, to execute a collective bargaining agreement covering those employees. This
“interim” agreement covering the nutrition and playland employees would remain in effect until
the expiration of the current CCK and Grocery Agreements between Fred Meyer and the Union

14 The contract in effect between the Union and Fred Meyer for the Grocery Unit is by its
terms effective from October 3, 2010, through October 5, 2013. (Jt. Ex. 14.) The contract in
effect between the Union and Fred Meyer for the CCK Unit is by its terms effective from May 2,
2010 through May 4, 2013. (Jt. Ex. 15.)
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covering the other employees in the respective Expanded Units.
Regarding the expiration of the current CCK and Grocery Agreements, the Respondent
Fred Meyer is obligated to bargain with the Union over successor agreements that would cover
all the employees in the respective Expanded Units, including the nutrition and playland
employees. Under Federal-Mogual, the parties are obligated to negotiate single individual
contracts that will provide for the terms and conditions of employment of all the employees in
each of the respective Expanded Units, unless the Union clearly and unambiguously waives its
right to continue to represent the nutrition and playland employees in their respective Expanded
Units.15 As I have already concluded, to date such a waiver by the Union has not occurred.
Further, until such time as the parties have had an opportunity to bargain over the terms
and conditions of interim contracts for the nutrition and playland employees, Board precedent
requires that no unilateral changes be made in the wages and benefits of the nutrition and
playland employees. As it is a permissive, rather than a mandatory subject of bargaining, the
Respondent Fred Meyer may not adamantly insist to impasse upon totally separate agreements
for the nutrition and playland employees, “so designed as to effectively destroy the basic
oneness of the unit[s],” which the Board has already found appropriate. Fred-Mogual, supra.
D. Findings Regarding the Complaint Allegations
1. The Failure to Pay the Lump Sum Bonus and to Bargain
It is alleged in complaint paragraphs 9(e), (f), and (g) that the Respondents have failed
to distribute to the nutrition and playland employees the lump sum ratification bonus and apply
the general terms of the 2010 Contracts negotiated by means of the Me-Too Agreement and
have refused to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act. However,
as I have concluded that the parties did not have a “meeting of the minds” regarding the Me-Too
Agreement and its affect on the nutrition and playland employees and, concomitantly, no valid
contracts exist between Fred Meyer and the Union regarding the nutrition and playland
employees, I must further conclude that the Respondents have not violated the Act in refusing
to apply the terms of those contracts and pay the lump sum bonus to the nutrition and playland
employees and have not refused to bargain in good faith. Therefore, I recommend to the Board
that these complaint allegations be dismissed.
Similarly, as the parties were in fundamental disagreement over the meaning of the Me-
Too Agreement and whether by its terms the nutrition and playland employees were covered by
the 2010 Contracts, and, concomitantly, whether any further negotiations were required for the
nutrition and playland employees, I conclude that the Respondents did not violate Section
8(a)(5) and (1) of the Act in failing to engage in further negotiations, including over “unique”
terms and conditions of employment, as alleged in complaint paragraphs 10 and 11. Therefore,
I recommend to the Board that these complaint allegations be dismissed.
2. The Posting of the Notice Regarding the Bonus
Complaint paragraph 8 alleges that on January 5, 2011, the Respondent Fred Meyer

15 “Single contracts often have separate or special provisions for separate classifications,
departments, or shifts, depending upon the extent to which the bargaining has developed
agreement upon whether all-inclusive provisions are adequate or inadequate to deal with the
problems of each such group.” Federal-Mogual, supra.
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posted a notice to employees at all its stores represented by the Union, blaming the Union for
the lack of ratification bonuses and for the delay in reaching a collective bargaining agreement,
which action is subsequently alleged as a violation of Section 8(a)(1) of the Act.
As noted earlier in this decision, on January 5, 2011, a notice to associates, bearing the
name of Carl Wojciechowski, Vice President of Human Resources, was posted at the
Respondent Fred Meyer’s stores. It set forth the Respondents’ position that the Union had
“refused to accept” the contracts negotiated with Locals 21 and 81 under the terms of the Me-
Too Agreement that the Union and the Respondents had signed. Further, the notice continued,
“As a result, we cannot pay you a ratification bonus or move forward on any of the other
contract provisions until this matter is resolved.” The notice concluded with the hope that the
matter could be resolved quickly and have the ratification bonus paid, but with the caution that if
the parties needed to go to arbitration to resolve their dispute, it might take some period of time
to conclude. The posting of this notice is admitted by the Respondent Fred Meyer.
In her post-hearing brief, counsel for the Acting General Counsel argues that this notice
blaming the Union for the delay in distributing the lump sum ratification bonus was inaccurate,
misled the employees to believe that “the delay was caused by Union obduracy,” and tended to
undermine employee support for the Union. However, I find that this mischaracterizes the
notice. The notice plainly stated that the Union had refused to accept “it,” meaning the Seattle
Negotiated Contracts, as they applied to the nutrition and playland employees. That was
accurate. As I have discussed at length, the parties failed to reach a “meeting of the minds”
regarding the meaning of the Me-Too Agreement and to what extent it bound the Union to the
Seattle Negotiated Contracts. Because of that disagreement, the Respondent Fred Meyer was
refusing to pay the lump sum bonus to the Union represented employees until the matter could
be resolved through arbitration, which might take some time. Again, I see nothing misleading
about these statements.
In any event, even if a reading of the notice would tend to lead the reader to feel that the
Union was somehow at fault, I fail to see how that bit of propaganda rises to the level of an
unfair labor practice. Such a communication is completely permissible under Section 8(c) of the
Act, as it constitutes an expression of “views, argument, or opinion,” which “contains no threat of
reprisal, or force, or promise of benefit.” The Respondent’s employees are adults and should be
treated as such. Certainly they should be capable of hearing the arguments of the parties and
deciding for themselves whether the failure to agree as to the meaning of the Me-Too
Agreement was the fault of the Union or the Respondents. Of course, the Union was free to
issue its own explanation to its members as to why the Respondent Fred Meyer was failing to
pay the lump sum ratification bonus, and, if it chose, to place the onus on the Respondents.
Presumably it did so.16 But, in any event, the Respondent’s employees should not be
considered as children unable to decide such matters for themselves.
The case law is well settled that an employer has the right to give his or her opinion and
communicate his or her views about the union to the employees under Section 8(c) of the Act
and the First Amendment to the United States Constitution. NLRB v. Gissel Packing Co., 395
U.S. 575, 617 (1969). See also Sears, Roebuck & Co., 305 NLRB 193, 193 (1991) (“Words of
disparagement alone concerning a union or its officials are insufficient for finding a violation of

16 As early as December 27, 2010, a week before the Employer posted the notice in
question, the Union was placing its own “spin” on the Respondents’ refusal to pay the lump sum
bonus. Iverson authored a letter of that date to the union members placing the blame on the
Respondents for delaying the payment of the bonus. (Res. Ex. 5.)
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Section 8(a)(1).”); Children Center for Behavioral Development, 347 NLRB 35 (2006) (“[A]n
employer may criticize, disparage, or denigrate a union without running afoul of Section 8(a)(1),
provided that its expression of opinion does not threaten employees or otherwise interfere with
the Section 7 rights of employees.”).
In Optical Lee Borinquen, Inc., 307 NLRB 705, 708-709 (1992), the Board affirmed the
administrative law judge who said, regarding an anti-union letter sent to employees during an
organizing campaign, that “Section 8(c) does not require fairness or accuracy, and does not
seek to censor nastiness.” Further, while the judge found the letter to be “an attempt to draw
upon emotionalism and overstatement,” he concluded that it “merely produced an overall
message easily recognizable as self serving hyperbole. Argument of this type is left routinely to
the good sense of employees.” (Id.) The Board found the letter not to constitute a violation of
the Act. By comparison to the harsh and disparaging comments employers have made against
unions in the above cited cases, the notice from the Respondent Fred Meyer seems rather
innocuous.
Accordingly, I find that there was nothing inappropriate about the notice dated January 5,
2011, and certainly nothing unlawful. The Respondent Fred Meyer was expressing its opinion
about the reason the lump sum bonus payments were delayed, as it had the right to do under
Section 8(c) of the Act. Of course, the notice favored the Respondent Fred Meyer’s version of
events. Certainly employees would be exposed to the Union’s version of events, and they
would have the opportunity to reach their own conclusions. Therefore, I find that the posting of
the notice in question did not violate Section 8(a)(1) of the Act, and I recommend to the Board
that complaint paragraph 8 be dismissed.
Conclusions of Law
1. The Respondent, Fred Meyer Stores, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent, Allied Employers, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
3. The Union, United Food and Commercial Workers Local 367, Affiliated with United
Food and Commercial Workers International Union, is a labor organization within the meaning
of Section 2(5) of the Act.
4. The following employees of the Respondent Fred Meyer in the Expanded Grocery
Unit constitute a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act: All employees employed in Fred Meyer’s present and future grocery
stores in Mason-Thurston Counties, State of Washington, and all regular full-time and part-time
employees, clerks, and assistant managers working in the Nutrition Department of the Fred
Meyer’s Lacey and Tumwater, Washington, retail stores; excluding Nutrition Department
Managers of the Lacey and Tumwater, Washington, retail stores, employees whose work is
performed within a meat, culinary, prescription or bakery production department location of the
retail establishment, [and] supervisory employees within the meaning of the Act.
5. At all material times, since August 26, 2010, based on Section 9(a) of the Act, the
Union has been the exclusive collective bargaining representative of the Expanded Grocery
Unit.
6. The following employees of the Respondent Fred Meyer in the Expanded CCK Unit
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constitute a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act: All employees employed in Respondent Fred Meyer’s Combination
Food/Non-Food Checkstand Departments in Pierce County and all future Combination
Food/Non-Food Checkstand Departments in Pierce County…and all regular full-time and part-
time employees working in the Playland Department of the Respondent Fred Meyer’s University
Place retail store, located in Tacoma, Washington; excluding guards, the Department Manager,
two Assistant Department Managers, and supervisors as defined in the Act.
7. The Respondent Fred Meyer and the Respondent Allied Employers did not violate the
Act as alleged in the complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended17
ORDER
The complaint is dismissed in its entirety.
Dated at Washington, D.C. November 14, 2012
_______________________
Gregory Z. Meyerson
Administrative Law Judge

17 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 to them shall be deemed
waived for all purposes.