361 N.L.R.B. 1380 (N.L.R.B. 2014)

2 Sisters Food Group, Inc., and Fresh & Easy Neighborhood Market, Inc.

National Labor Relations Board - Board DecisionsDec 16, 2014

361 N.L.R.B. 1380 (N.L.R.B. 2014)

1380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Sisters Food Group, Inc. and Fresh & Easy Neigh- borhood Market, Inc. and United Food and Commercial Workers International Union, Lo- cal 1167. Cases 21–CA–038915 and 21–CA– 038932 December 16, 2014 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND SCHIFFER On July 16, 2013, in a Supplemental Decision and Or- der reported at 359 NLRB 1527, the Board found that Respondent Fresh & Easy Neighborhood Market, Inc. (Fresh & Easy) is a successor to 2 Sisters Food Group, Inc. (2 Sisters) under Golden State Bottling Co. v NLRB, 414 U.S. 168 (1973), and is liable to remedy 2 Sisters’ unfair labor practices found by the Board in 2 Sisters Food Group, 357 NLRB 1816 (2011) (finding that 2 Sisters violated Sec. 8(a)(1) by maintaining certain work rules and Sec. 8(a)(3) and (1) by discharging employee Xonia Trespalacios). The Supplemental Decision also rejected the Charging Party’s request for additional rem- edies. On July 31, 2013, the Charging Party filed a mo- tion for reconsideration of the Board’s rejection of its request for additional remedies. That motion remains pending.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Before we address the Charging Party’s motion for re- consideration, we must first address the status of the Supplemental Decision and Order reported at 359 NLRB 1527. At the time of the Supplemental Decision and Order, the composition of the Board included two per- sons whose appointments had been challenged as consti- tutionally infirm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Can- ning, 134 S.Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid. In view of that decision, we vacate the Supplemental Decision and Order reported at 359 NLRB 1527. We have considered de novo the entire record in this case, Administrative Law Judge Eleanor Laws’ Novem- ber 21, 2012 supplemental decision, and the parties’ ex- ceptions and briefs.2 Having done so, we affirm the judge’s rulings, findings, and conclusions in this compli- 1 The Charging Party’s motion mistakenly refers to 2 Sisters as the successor to Fresh & Easy. We address its request for additional reme- dies as if the motion had named Fresh & Easy as the successor. 2 Fresh & Easy has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. ance proceeding only to the extent consistent with this Supplemental Decision. The parties stipulated, and the judge found, that Fresh & Easy is a successor to 2 Sisters under Golden State Bottling Co., supra, and as such is liable to remedy 2 Sisters’ unfair labor practices. Fresh & Easy excepted to this finding, contending that the Region’s failure to al- lege Fresh & Easy as a respondent in the unfair labor practice proceeding denied it due process of law. The judge rejected Fresh & Easy’s due process argument, and we find her reasoning persuasive. Thus, for the reasons stated by the judge, we find Fresh & Easy’s exceptions without merit, and we adopt her finding and conclusion that Fresh & Easy is jointly and severally liable to reme- dy 2 Sisters’ unfair labor practices. The judge also entertained the Charging Party Union’s request for additional remedies and a broad cease-and- desist order. She granted the Union’s request for a no- tice-mailing remedy, denied the remainder of the re- quested additional remedies, and denied the request for a broad order. The judge then issued a revised Order that differed in some respects from the Board’s Order in 357 NLRB 1816. However, the only issue properly before the judge in this compliance proceeding was Fresh & Easy’s claim that, notwithstanding its status as 2 Sisters’ Golden State successor, it was not liable to remedy 2 Sisters’ unfair labor practices. As we have found, the judge correctly rejected that claim. Because it was raised at the compliance stage of this proceeding, however, the Charging Party’s request for additional remedies—which sought to expand the Board’s underlying Order—was untimely. See Wellstream Corp., 321 NLRB 455, 455 fn. 2 (1996). Accordingly, the Order the Board issued in 357 NLRB 1816 remains binding on 2 Sisters and is binding on Fresh & Easy as 2 Sisters’ Golden State suc- cessor. We turn now to the Charging Party’s motion for recon- sideration. The Charging Party again requests additional remedies against Fresh & Easy. We deny the request for the reasons stated above. The Charging Party also con- tends that Fresh & Easy “is guilty of separate additional conduct.” If that is so, the proper recourse would have been to file an unfair labor practice charge. The Charg- ing Party has not identified any material error or demon- strated extraordinary circumstances warranting reconsid- eration under Section 102.48(d)(1) of the Board’s Rules and Regulations. Accordingly, its motion is denied. 361 NLRB No. 152 2 SISTERS FOOD GROUP, INC. 1381 ORDER The National Labor Relations Board orders that Re- spondent 2 Sisters Food Group, Inc., Riverside, Califor- nia, and its successor, Respondent Fresh & Easy Neigh- borhood Market, Inc., Riverside, California, their offic- ers, agents, successors, and assigns, shall take the action set forth in the Board’s Order in 357 NLRB 1816, 1823– 1824.