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

National Labor Relations Board - Administrative Judge Opinions

Nov 21, 2012

21-CA-038915 (N.L.R.B. Nov. 21, 2012)

JD(SF)–54–12
Riverside, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
2 SISTERS FOOD GROUP INC., and
FRESH & EASY NEIGHBORHOOD
MARKET, INC.
and Cases 21–CA–38915
21–CA–38932
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION,
LOCAL 1167
Irma Hernandez, Esq.
for the Acting General Counsel.
Joseph A. Turzi, Esq. (DLA Piper LLP)
for Respondent Fresh & Easy
Neighborhood Market, Inc.
Stuart Newman, Esq. (Seyfarth Shaw LLP]
for Respondent 2 Sisters Food Group, Inc.
David A. Rosenfeld, Esq. (Weinberg, Roger &
Rosenfeld) for the Charging Party.
SUPPLEMENTAL DECISION
Statement of the Case
Eleanor Laws, Administrative Law Judge. This case was tried based on a joint motion
and stipulation of facts I approved on August 1, 2012, pursuant to a Compliance Specification
and Notice of Hearing (Compliance Specification) issued on May 21, 2012. The issue
presented is whether Fresh & Easy Neighborhood Market, Inc. (Fresh & Easy) can be held
jointly and severally liable for 2 Sisters Food Group, Inc.’s (2 Sisters) unfair labor practice
violations.
On the entire record and after considering the briefs filed by the Acting General Counsel,
the Charging Party and Respondent Fresh & Easy,1 I make the following.

1 2 Sisters did not file a brief.
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Findings of Fact
I. Jurisdiction
Respondent Fresh & Easy, a Delaware corporation, engages in the retail sale of
groceries, meats and related products at various facilities in the state of California, where it
annually derives gross revenues in excess of $500,000 and purchases goods valued in excess
of $50,000 from points outside California. Fresh & Easy admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor
Relations Act (the Act) and that the Union is a labor organization within the meaning of Section
2(5) of the Act.2
A. Background and Procedural History
This case has a protracted procedural history, the pertinent points of which I will
summarize. Pursuant to unfair labor practice charges and timely objections to a representation
election of July 17, 2009, filed by United Food and Commercial Workers International Union,
Local 1167 (the Union or Charging Party), the Regional Director of Region 21 of the National
Labor Relations Board (the Region and the Board, respectively) issued a Report on Challenged
Ballots and Objections in Case 21-RC-21137, an Order Consolidating Cases 21-CA-38915 and
21-CA-38932, and a Complaint and Notice of Hearing (the Complaint) on December 14, 2009.
The Complaint alleged that 2 Sisters violated Sections 8(a)(3) and (1) of the Act. Administrative
Law Judge (ALJ) Lana H. Parke presided over the trial of the consolidated case on various
dates in March 2010 and issued a decision on June 10, 2010. JD(SF)–24–10. Judge Parke
found that 2 Sisters violated the Act as alleged by maintaining overbroad work rules and by
terminating employee Xonia Trespalacios for her Union activities. Accordingly, she ordered
rescission of the rules and reinstatement of Trespalacios with backpay and other make-whole
relief. Judge Parke further determined that 2 Sisters engaged in objectionable conduct that
impacted the outcome of the Union representation election. She set aside the election and
ordered 2 Sisters to conduct a rerun election.3
Fresh & Easy purchased all the assets from 2 Sisters’ Riverside plant on June 28, 2010.
On July 23, 2010, 2 Sisters filed with the Board exceptions to Judge Parke’s decision along with
a supporting brief. The Acting General Counsel filed limited exceptions and a supporting brief
on July 26, 2010. On July 27, 2010, Fresh & Easy filed a motion to intervene and supplement
the record. It argued, in basic terms, that the Board could not order the re-run election because
it was based on a stipulated election agreement between 2 Sisters and the Union to which
Fresh & Easy was not a party. Fresh & Easy further contended that even if it is a successor to 2
Sisters under the Supreme Court’s decision in Golden State Bottling Co. v. NLRB, 414 U.S. 168
(1973), it could not be held liable for 2 Sisters’ objectionable conduct. A declaration from Hugh
Cousins, Fresh & Easy’s Chief Human Resources Officer, was attached to the motion. Cousins
declared, inter alia, that the terms and conditions of employment Fresh & Easy offered to
employees were significantly different than those 2 Sisters had provided.
On December 29, 2011, the Board issued a decision unanimously affirming Judge
Parke’s recommendation to set aside the election. The Board further adopted Judge Parke’s

2 I take notice that the ALJ and the Board found that, for the time period relevant to the
unfair labor practices complaint, 2 Sisters was an employer engaged in commerce for purposes
of jurisdiction under the Act.
3 Judge Parke issued an erratum on June 25, 2010, correcting a portion of her order.
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findings that 2 Sisters violated Section 8(a)(1) and (3) of the Act by discharging Trespalacios
and violated Section 8(a)(1) by: (1) maintaining an overly broad rule prohibiting the unauthorized
solicitation of contributions; (2) maintaining an overly broad rule prohibiting the unauthorized
distribution of written materials; (3) maintaining a rule that employees may be disciplined for the
“inability or unwillingness to work harmoniously with other employees”; and (4) requiring
employees to submit all employment-related disputes to arbitration.4 2 Sisters Food Group, 357
NLRB No. 168 (2011) slip op. at 2. It also denied without prejudice Fresh & Easy’s motion to
intervene, finding that the facts asserted in Cousins’ declaration were not relevant to its
determination that the election must be set aside or to disposition of the complaint allegations.
The Board noted that Fresh & Easy could renew the motion before the Regional Director in
connection with subsequent proceedings under Section 102.48(d)(1) of the Board's Rules and
Regulations. Id. at 10. Finally, the Board ordered 2 Sisters to take various remedial actions and
directed it to undertake a second representation election. Id. at 12.
On January 27, 2012, the Region sent a letter to Fresh & Easy’s counsel asking whether
it intended to intervene in the representation case, 21–RC–21137. Fresh & Easy replied that it
did not intend to intervene because that case involved a dispute to which it was not a party.5
The Region issued the Compliance Specification at issue herein on May 1, 2012,
naming Fresh & Easy as a Respondent along with 2 Sisters, and alleging that Fresh & Easy, as
a successor to 2 Sisters, is jointly and severally liable for remedying 2 Sisters’ unfair labor
practices.
Fresh & Easy filed a motion to dismiss the Compliance Specification on June 6, 2012. It
argued that the Compliance Specification was untimely, the Region failed to allege facts
sufficient to demonstrate that Trespalacios was entitled to employment with Fresh & Easy or
backpay from it, and that imposition of successor liability would deprive it of its Constitutional
due process rights. The Acting General Counsel and the Charging Party filed respective
oppositions. The Board denied Fresh & Easy’s Motion to Dismiss on July 9, 2012, and Fresh &
Easy withdrew the Motion that same day. On July 10, 2012, the Board, through Associate
Executive Secretary Farah Z. Queseshi, served the parties with a letter acknowledging receipt
of Fresh & Easy’s notice of withdrawal of the Motion to Dismiss and informing them that the
withdrawal request was moot.
On July 30, 2012, the parties executed a joint stipulation settling all issues regarding of
Trespalacios’ reinstatement and backpay. Specifically, 2 Sisters agreed to tender full backpay
and to remove from its files any reference to Trespalacios’ termination, and Trespalacios waived
her right to reinstatement. The same day, the parties entered into a joint stipulation of facts and
motion to submit the case on stipulation (the Stipulations). I approved Stipulations on August 1.
The Acting General Counsel, Fresh & Easy, and the Charging Party each submitted briefs on
September 5. The Acting General Counsel submitted a motion to rescind approval of the
settlement stipulation on October 1, asserting that 2 Sisters had not complied with its terms. On
October 11, I issued an Order to Show Cause as to why the Acting General Counsel’s motion to
rescind should not be granted. On October 15, the Acting General Counsel requested

4 The Board reversed the ALJ and found lawful a rule prohibiting leaving the plant or taking
breaks without permission.
5 Fresh & Easy notes that it was not invited to intervene in the current case, as it was in the
Representation case. It was named as a Respondent, however, so it would not have made
sense for the Region to invite it to intervene.
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withdrawal of its motion to rescind because 2 Sisters subsequently complied. I granted this
request on October 16.
B. Stipulated Facts
The stipulated background facts are set forth fully in the joint Stipulation of Facts but are
summarized here for ease of reference. From around 2008 until June 28 2010, 2 Sisters sold
meat and related food products exclusively to Fresh & Easy. On June 28, 2010, Fresh & Easy,
aware of the alleged unfair labor practices involving 2 Sisters at issue herein, purchased 2
Sisters’ Riverside, California meat processing plant and all its assets. Fresh & Easy continued 2
Sisters’ business without interruption and without substantial operational changes. The meat
processing plant operates at the same location, and it is substantially the same with regard to
the departments it houses, equipment it uses, the products it produces, and the customers it
serves.
Fresh & Easy made employment offers to all hourly and salaried employees who had
worked at the 2 Sisters Riverside facility. On or around June 28, 2010, a majority of the former
2 Sisters employees began working at the Fresh & Easy Riverside facility. Their duties, wages
and benefits, supervisors and managers, and working conditions remained substantially the
same.
The parties stipulated, and I also find, the facts set forth in the joint Stipulation are
sufficient to establish that Fresh & Easy is a successor to 2 Sisters under Golden State, supra.
II. The Parties’ Positions
A. The Acting General Counsel
The Acting General Counsel contends that Fresh & Easy is a Golden State successor to
2 Sisters and is therefore jointly and severally liable for remedying the unfair labor practices 2
Sisters committed. The Acting General Counsel further asserts that the Compliance
Specification was issued in a timely manner and that Fresh and Easy was afforded due process
of law.
B. The Union
The Union joins the Acting General Counsel’s position. The Union further asserts that
the Board should issue a broad remedial order against Fresh & Easy and require enhanced
notice posting because of its repeated violations of the Act.
C. Fresh & Easy
Fresh & Easy contends that the Compliance Specification must be dismissed because it
was untimely under Section 10(b) of the Act. It further argues that Fresh & Easy cannot be held
liable for 2 Sisters’ unfair labor practice violations because, as a result of the Region’s failures, it
was denied due process of law and was unable to defend itself.6

6 Fresh & Easy also disavows liability for any backpay owed to Trespalacios from June 2010
forward. Because the settlement agreement disposed of all reinstatement and backpay issues
with regard to Trespalacios, I need not address this argument. I note that Fresh & Easy
likewise did not address this argument in its brief.
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D. 2 Sisters
2 Sisters asserts that, as of June 28, 2010, it has no authority to remedy the unfair labor
practices, as it no longer controls the operations of the Riverside meat processing facility. It has
fulfilled its obligation to Trespalacios by paying her full backpay, and requests to be dismissed
out of compliance proceedings entirely.
III. Decision and Analysis
A. Timeliness of the Compliance Specification
Fresh & Easy argued that the Compliance Specification was not timely in its June 6,
2012 Motion to Dismiss filed with the Board. In denying the Motion, the Board stated that Fresh
& Easy “failed to establish there are no genuine issues of material fact warranting a hearing, or
that there is any other basis on which the Compliance Specification should be dismissed.”
(Emphasis supplied). As Fresh & Easy presented no new evidence or arguments regarding the
Compliance Specification’s timeliness, I find that the Board has ruled on the matter. Any
arguments that the ruling was erroneous are properly addressed to the Board.
B. Due Process of Law
In Golden State Bottling Co. v. NLRB, supra, the Supreme Court held that a bona fide
purchaser of a business who knows about the seller's unfair labor practices at the time of the
purchase and who continues the business without interruption or substantial change in
operations, employee complement, or supervisor/manager personnel is jointly and severally
liable for the seller's unfair labor practices. As noted above, I find and the parties have
stipulated that Fresh & Easy is a successor to 2 Sisters under Golden State.
By the time Fresh & Easy purchased 2 Sisters, the ALJ decision on the unfair labor
practices complaint had issued, and the case was pending before the Board. Fresh & Easy filed
a Motion to Intervene.7 The Board denied the Motion to Intervene and therefore any arguments
that this was erroneous are properly addressed to the Board.
Regardless of the Motion to Intervene, Fresh & Easy contends that it should not be liable
as a Golden State successor because, despite the Region’s awareness that Fresh & Easy
purchased 2 Sisters in June 2010, it did not amend its pleadings to name Fresh & Easy as a
Respondent. Because it was first named as a Respondent in the May 2012 Compliance
Specification, Fresh & Easy asserts that imposing liability on it violates its due process rights
because it was unable to participate in the appeal of the ALJ decision.
The Board was faced with a similar argument years ago in Alexander Milburn Co., 78
NLRB 747 (1948). The trial examiner in Alexander Milburn issued an intermediate report on
August 21, 1944, finding that the Company had violated the Act. The Board then learned,
during oral argument before it on December 14, 1944, that Alexander Milburn had sold its
assets to the Black Company after the trial examiner had issued his intermediate report. The
Black Company was not represented at the oral argument before the Board. The Board

7 The Motion to Intervene focused on the Representation case, but the Board ruled broadly
that the evidence to support the motion was “not relevant to its determination that the election
must be set aside or to disposition of the complaint allegations.” (Emphasis supplied).
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nonetheless issued a Decision and Order on June 18, 1945, finding various unfair labor
practices. On July 26, 1946, it issued an Order Reopening Record for the limited purpose of
receiving evidence respecting:
(1) The relationship between the respondent and the Black Company;
(2) the relationship between the business conducted by the respondent and the business
conducted by the Black Company;
(3) the full circumstances of the sale or other transfer of the business and/or physical
assets from the respondent to the Black Company, including any knowledge or notice of
the Black Company concerning the unfair labor practices or the proceedings herein;
(4) the responsibilities of the respective companies for remedying the unfair labor
practices found in the Board's Decision and Order; and remanded the proceeding to the
Regional Director for the purpose of conducting a further hearing.
Id. at 758.
The Black Company argued that the Board could not proceed against it in a compliance
proceeding because it had not issued a complaint or amended complaint against it prior to
issuing its Order. The Board disagreed, stating in relevant part:
The Board does not contend that the Black Company has itself engaged in any unfair
labor practices, except insofar as its failure to remedy the unfair labor practices of its
predecessor constitutes a violation of the Act. Whatever responsibility attaches to it
arises out of operation of law from its relationship to the respondent and the
circumstances surrounding the transfer of the business enterprise. Under these
circumstances it would be idle for the Board to issue a complaint, or amended complaint,
against the Black Company. The requirement of due process does not entail providing a
successor with an opportunity to defend against unfair labor practices committed by its
predecessor prior to a transfer of the business enterprise involved. If this were so, there
would, as the Court has said, be “no end to litigation.” The contention of the Black
Company that it has been denied the opportunity of defending “against the Board's
contention that unfair labor practices were in fact committed” is therefore found to be
without merit.
Id. at 769.
The procedures were slightly different when Alexander Milburn was decided, but the
respective procedural postures and arguments are analogous. Though Alexander Milburn was
overruled by Syms Grocer Co, 109 NLRB 346 (1954), Syms Grocer was subsequently overruled
by Perma Vinyl Corp., 164 NLRB 968 (1967), enforced sub nom. United States Pipe & Foundry
Co. v. NLRB, 398 F.2d 544 (5th Cir. 1968), which expressly cites Alexander Milburn with
approval. Id. at 970 fn.2; see also Web Tractor and Equipment Co., 181 NLRB 230, 234–35
(1970), enforced, 80 LRRM 2738, (9th Cir. 1972); Armitage Sand & Gravel, 203 NLRB 162
(1973).
Moreover, in Frederick Iron & Steel, 303 NLRB 514 fn.1 (1991), and VSI-Technologies,
300 NLRB 95 (1990), even when the alleged potential successors were named in the original
complaint as successors, the Board granted summary judgment against the employers that
committed the unfair labor practice for their respective failures to file answers, noting that the
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potential successors will be able to litigate their status as successors responsible for remedying
the unfair labor practices of the predecessors at the compliance stage. See also Marine Mach.
Works, 243 NLRB 1081, fn.1 (1979), enforced, 635 F.2d 522 (5th Cir. 1981).
Citing to NLRB v. I.W.G., 144 F.3d 685, 689 (10th Cir. 1998), Fresh & Easy asserts that
Constitutional due process “prohibits enforcement of the Board’s decision if is based on a
violation neither charged in the complaint not litigated at the hearing.” This is true, but in
NLRB v. I.W.G., the company was not given notice and an opportunity for a hearing as to
whether it was an alter-ego of the company that committed the unfair labor practices. No similar
deficiency exists here. It further cites to Sam’s Club v. NLRB, 173 F.3d 233, 246 fn. 14 (4th Cir.
1999), but that case involved the adequacy of notice for new charges stemming from new
alleged violations the government contended were like or related to prior charges. That
situation is procedurally distinct from the situation here, where there are no new unfair labor
practice charges but rather a determination of who may be held liable for the very unfair labor
practices the Board has found.
Fresh & Easy attempts to exempt itself from liability associated with Golden State
successorship by assigning fault to the Acting General Counsel for failing to timely amend the
complaint to name it as a respondent. More specifically, in its brief, Fresh and Easy asserts that
“given the Region had unequivocal notice of the purchase through the Motion to Intervene, it is
clear that its decision to proceed solely against 2 Sisters was a product of inexcusable neglect,
or even more troubling, a desire to gain a strategic advantage in the appeal proceedings.” But,
as is clear from the cases cited above, Fresh & Easy did not have a due process right to
participate in an appeal of the ALJ’s findings regarding unfair labor practices that it did not
allegedly commit. As such, this argument fails, as no right was foreclosed by the Region’s
failure to amend.
To support its argument that it was prejudiced by the Region’s failure to amend the
Complaint, Fresh & Easy points to Viking Industrial v. Security, Inc. v. NLRB, 225 F.3d 131 (2d
Cir. 2000). In that case, the Board had found that two companies, Viking New York and Viking
New Jersey, operating as a single employer, terminated an employee in violation of the Act.
The companies later severed, and the complaint was issued only against Viking New York. The
Court found this violated Viking New Jersey’s due process rights. In the instant case, Fresh &
Easy was never alleged to have terminated anyone or to have committed any unfair labor
practice previously adjudicated by the ALJ or Board. The employer’s right to defend its own
actions was at stake in Viking Industrial but not here. Fresh & Easy also points to Green
Construction, 271 NLRB 1503 (1984). That case, however, involved a potential single employer
the Acting General Counsel knew about at the time of the unfair labor practices hearing and is
thus distinguishable. Fresh & Easy cites to other cases, but none of them are directly on point
to the situation here, which is governed by Golden State and its progeny.
Finally, Fresh & Easy asserts that because it was a successor to, not an alter ego of, 2
Sisters, “imposition of derivative liability is wholly inappropriate” in part because it does not
share an identity of interest with its predecessor. Golden State, however, governs this situation
and instructs otherwise. Fresh & Easy was made a party to the supplemental backpay
specification proceeding, given notice of the hearing, and afforded full opportunity, with the
assistance of counsel, to contest the question of its successorship for purposes of the Act,
rendering derivative liability appropriate. Golden State, supra at 181.
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C. 2 Sisters’ Request for Dismissal from Compliance Proceedings
2 Sisters asserts that, because it made Trespalacios whole and it no longer operates the
Riverside facility, it has done what it can and has no ongoing liability. As 2 Sisters settled the
reinstatement/backpay issues, any remaining liability would consist of posting/distributing the
Board’s notice and rescinding the unlawful rules and policies it maintained.
Because, as set forth below, I agree with the Charging Party that the Board’s notice
should be mailed to any employees who worked for 2 Sisters at the time of the violations but
who no longer work for Fresh & Easy, I find that 2 Sisters should remain a party. Moreover,
while Fresh & Easy notes in its brief that, as of June 28, 2010, 2 Sisters “was ceasing all
operations in the United States,” this fact has not established by stipulation or otherwise. As
such, to the extent 2 Sisters still operates in the United States and was found to have been
within the Act’s jurisdiction at the time of the instant labor practices in connection with the
Compliance Specification herein, it is required to remedy those violations.
D. Union’s Request for Additional Remedies & a Broad Remedial Order
1. Additional Remedies
The Union asserts that I should impose additional remedies on the Respondents
because of their repeated violations of the Act. Specifically, it requests extended notice posting,
for a period defined as the amount of time between the complaint allegation and the remedy, or
should this not be deemed appropriate, a period of one year. The Union further asserts that the
Respondents should be required to post the Boards proposed notice to employees for five
years. Next, the Union requests that the Respondents should be required to mail and email the
notice to all employees who worked from the time of the unfair labor practices until the notice is
posted. Finally, the Union requests that the Respondents should participate in a meaningful
program to educate workers about their rights.
Turning to the first argument, the Union has provided no legal support or convincing
argument for extending the notice-posting time. The employees who now work for Fresh &
Easy are likely to see it and read it whether it is posted for 60 days or longer. As 2 Sisters no
longer operates the Riverside facility, the responsibility to post the notice falls to Fresh & Easy.
While the notice will serve as a reminder to employees that the unfair labor practices 2 Sisters
committed were in fact remedied, I find that Fresh & Easy’s posting of the notice for 60 days at
the Riverside facility, coupled with relief described below, will effectuate the purposes of the Act.
See Hicks-Ponder Co., 174 NLRB 51, 52 (1969).
The Union next requests that the Respondents be required to post the Board’s employee
rights notice poster for five years. See, http://www.nlrb.gov/news-media/fact-sheets/final-rule-
notification-employee-rights. On April 17, 2012, however, the Court of Appeals for the District of
Columbia temporarily enjoined the NLRB’s rule requiring the posting of the employee rights
notice under the Act. National Ass'n of Mfrs. v. N.L.R.B., 2012 WL 4328371 (D.C. Cir. Apr 17,
2012). As the Board cannot require any employer to post the notice until the matter is resolved,
neither can I.
Next, the Union requests that former employees who worked at 2 Sisters but no longer
work for Fresh & Easy receive a copy of the notice by mail. Because 2 Sisters’ unlawful
conduct, directed toward former employees as well as current employees, can be expected to
have a chilling effect on employees' Section 7 rights, I shall order Respondents to mail copies of
the notice herein to all former employees who were employed by the 2 Sisters or Fresh & Easy
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at any time from July 13, 2009, to the date of posting of the notice. See Big Sky Hospitalities,
LLC, 358 NLRB No. 83 (2012).
Finally, the Union requests that the Respondents be required to participate in a
meaningful worker education program. 2 Sisters no longer operates the facility, and Fresh &
Easy did not commit the unfair labor practices giving rise to these proceedings. Accordingly,
I decline to grant this request.
2. Broad Remedial Order
The Union argues that I should recommend broad remedial order against Fresh & Easy.
The Board has approved a broad remedial order where the employer displays “an attitude of
opposition to the purposes of the Act to protect the rights of employees generally.” May Dept.
Stores Co. v. NLRB, 326 US 376, 392 (1945). A broad cease-and-desist order is warranted
when the employer “has engaged in such egregious or widespread misconduct as to
demonstrate a general disregard for the employees' fundamental statutory rights.” Hickmott
Foods, 242 NLRB 1357 (1979).
In a recent decision, Fresh & Easy Neighborhood Market, 358 NLRB No. 65 (2012), the
Board found Fresh & Easy violated the Act by coercively interrogating an employee, creating the
impression of surveillance, and prohibiting employees from discussing their discipline.
Reversing the administrative law judge (ALJ), the Board also found that requiring employees to
distribute a coupon flyer to customers that contained an apology for any disruption union
protesters may have caused further violated the Act. At the hearing before the ALJ, the General
Counsel and the Charging Party had sought a broad remedial order, pointing to other recent
Board decisions. Specifically, in Fresh & Easy Neighborhood Market, 356 NLRB No. 85 (2011),
modified on other grounds 2011 WL 1038028 (Mar. 22, 2011), enfd. mem. 459 Fed. Appx. 1
(D.C. Cir. Mar. 13, 2012), the Board found that during an organizing drive at Respondent's Las
Vegas stores Fresh & Easy unlawfully: (1) interrogated employees; (2) created the impression
of surveillance; and (3) promulgated and maintained an unlawfully overbroad no-distribution
rule. In Fresh & Easy Neighborhood Market, 356 NLRB No. 90 (2011), modified on other
grounds 2011 WL 1038028 (Mar. 22, 2011), enfd. mem. 459 Fed. Appx. 1 (D.C. Cir. Mar. 13,
2012), the Board found that, at its Spring Valley, California store, Fresh & Easy unlawfully: (1)
promulgated and maintained a rule prohibiting employees from talking about the Union while
working; (2) prohibited employees from talking about their discipline with other employees while
working; and (3) invited employees to quit their employment as a response to their protected
activities. ALJ Lana H. Parke had determined that, because of the “corporate oversight of the
labor relations of individual stores and the repetition of conduct already found unlawful by the
Board,” a broad notice was appropriate. Because Judge Parke did not find that requiring
employees to distribute coupon flyers to its customers was a violation, she did not order
corporate-wide posting or distribution of the Board’s notice to Fresh & Easy’s customers. She
also declined to impose the remedy of notice reading to employees, finding the “unlawful
conduct found in this case does not constitute such serious, persistent, and widespread unfair
labor practices as to require the notice to be read aloud.” Id. slip op. at 15.
The Board modified Judge Parke’s decision and, even though it found an additional
violation, declined to impose a broad remedial order. With the exception of the coupon flyer
violation, the Board reasoned, “all of the violations were committed solely by Eagle Rock Store
Manager Pablo Artica.” Id. slip op. at 3. The Board determined that a notice covering all of the
violations must be posted only at the Eagle Rock store, and a notice specific to the coupon-flyer
violation must be posted at the 15-20 other stores where employees were required to distribute
the flyer. The Union filed a request for reconsideration, and the Board again ruled that a broad
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cease-and-desist order was not warranted. Fresh & Easy Neighborhood Market, Inc., 2012 WL
4424622 (Sept. 25, 2012).
The only changed circumstance between the Union’s request for reconsideration in
Fresh & Easy Neighborhood Market, 358 NLRB No. 65 (2012), and the instant decision is that
I am now finding that Fresh & Easy is jointly and severally liable to remedy 2 Sisters’ unfair labor
practices under Golden State, with the exception of the issues that were settled, i.e.,
reinstatement, backpay and personnel or other employment records pertaining to Trespalacios.
As the Board stated in its order denying reconsideration, “we observe that the Respondent's
refusal to comply with the Board's orders before enforcement does not show a proclivity to
violate the Act. See Longshoremen ILWU Local 151 (Port Townsend), 294 NLRB 674, 675 fn.8
(1989) (“Board orders are not self-enforcing, and . . . , until such orders are enforced by a
United States court of appeals, no penalties are incurred for disobeying them.”) 2012 WL
4424622. The Union also cites to pending cases, but the Board has rejected reliance on these
when determining the appropriate remedial order. Id. (citing Electrical Workers Local 98 (Total
Cabling Specialists), 339 NLRB 470, 470 fn.2 (2003)). Considering the unfair labor practices
decision that gave rise to the instant compliance proceeding did not result in a broad remedial
order from the Board, coupled with the Board’s decisions, detailed above, declining to impose a
broad order, I must decline the Union’s request.8
Conclusions of Law
1. Respondent Fresh & Easy is an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and (7) of the Act; Respondent 2 Sisters
was an employer engaged in commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act at the time of the unfair labor practice proceedings.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent 2 Sisters violated Section 8(a)(1) of the Act by promulgating and
maintaining overbroad work rules and by promulgating and maintaining a mandatory arbitration
policy that required employees to waive their right to file charges with the Board.
4. Respondent 2 Sisters violated Section 8(a)(3) and (1) of the Act by terminating
employee Xonia Trespalacios because she engaged in union or other concerted protected
activities and to discourage employees from engaging in these activities.
5. Respondent Fresh & Easy is a Golden State successor to 2 Sisters and is jointly and
severally liable to remedy 2 Sisters’ unfair labor practice violations about which it had
knowledge when it purchased 2 Sisters.

8 To the extent 2 Sisters maintained the work rules at any facilities other than the Riverside
plant, however, it shall be required to rescind the rule and post a notice at those facilities. See
Long Drug Stores of California, 347 NLRB 500, 501 (2006) ((“The Board has ‘consistently held
that, where an employer's overbroad rule is maintained as a companywide policy, we will
generally order the employer to post an appropriate notice at all of its facilities where the
unlawful policy has been or is in effect.”’) (quoting Guardsmark, LLC, 344 NLRB 809, 812
(2005)); Jack in the Box Distribution Center Systems, 339 NLRB 40 (2003) (“[W]e deem it an
appropriate remedial measure to require that the rescission of the provision, and the posting of
the notice, be coextensive with the Respondent's application of its handbook.”).
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6. The unfair labor practices set forth above affect commerce within the meaning of
Section 8(a) (1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent 2 Sisters maintained unlawful rules prohibiting
unauthorized soliciting of contributions, unauthorized distribution of printed matter and the
“inability or unwillingness to work harmoniously with other employees,” as well as an unlawful
policy requiring employees to submit all employment disputes and claims to binding arbitration,
and having found that the Respondent Fresh & Easy is a Golden State successor, I shall order
the Respondent 2 Sisters to rescind the rules and policy in any facility that continues to operate
in the United States. To the extent Fresh & Easy adopted the rules and policy at issue after
purchasing the Riverside facility from 2 Sisters, I shall order Fresh & Easy to rescind the rules
and policy. Consistent with Guardsmark, LLC, 344 NLRB 809, 811–12 (2005), the Respondent
2 Sisters, in any facility that falls within the Board’s jurisdiction, may comply with the Order by
rescinding the unlawful provisions and republishing its Rules of Conduct and employee
handbook without them. The Respondent Fresh & Easy may comply with the Order by
rescinding any unlawful provisions it adopted or continued when it purchased 2 Sisters’
Riverside facility and republishing its Rules of Conduct and employee handbook (or any
corollary rules, handbooks or similar documents containing the rules or policy) without them.
Recognizing that republishing the Rules of Conduct, employee handbook, or other similar
documents housing the rules/policy could entail significant costs, the Respondents may supply
the employees either with Rules of Conduct, employee handbook or other applicable inserts
stating that the unlawful rules have been rescinded, or with new and lawfully worded rules on
adhesive backing which will cover the old and unlawfully broad rules, until it republishes the
Rules of Conduct, employee handbook or other applicable documents without the unlawful
provisions. Thereafter, any copies of the Rules of Conduct, employee handbook or other
applicable documents that are printed with the unlawful rules must include the new inserts
before being distributed to employees. Id. at 812, fn.8.
All issues regarding backpay, reinstatement and removal of any reference to the
unlawful discharge of Trespalacios in Respondent 2 Sisters’ personnel records have been
settled. To the extent that Fresh & Easy acquired personnel records pertaining to Trespalacios,
it shall be ordered to remove any reference to 2 Sisters’ unlawful termination. In addition,
because the Board found that 2 Sisters’ discharge of Trespalacios was unlawful, Fresh & Easy,
as 2 Sisters’ successor, shall be required to post a notice of violation, as set forth herein. See
Golden State Bottling Co. v. NLRB, supra at 184 (When new employer comes in as successor,
“employees may well perceive the successor's failure to remedy the predecessor employer's
unfair labor practices arising out of an unlawful discharge as a continuation of the predecessor's
labor policies.”).
In view of the fact that Respondent 2 Sisters sold its business to Respondent Fresh &
Easy, I shall order Respondent 2 Sisters to mail a copy of the attached notice marked
“Appendix B” to the last known addresses of its former employees who were employed at any
time between February 1, 2009 and June 28, 2010, in order to inform them of the outcome of
this proceeding.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.9
ORDER
The National Labor Relations Board orders that the Respondents, its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
(a) Maintaining a work rule prohibiting unauthorized soliciting of contributions on
company premises.
(b) Maintaining a work rule prohibiting distribution of printed matter on company
premises without permission.
(c) Maintaining a work rule subjecting employees to discipline for the “inability or
unwillingness to work harmoniously with other employees.”
(d) Maintaining a policy requiring its employees to agree to submit all employment
disputes and claims to binding arbitration as a condition of employment.
(e) Discharging or otherwise discriminating against employees for supporting United
Food and Commercial Workers International Union, Local 1167 or any other labor organization.
(f) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) If 2 Sisters maintains the work rule prohibiting unauthorized soliciting of
contributions on company premises at any remaining facility in the United States, or if Fresh &
Easy has adopted or otherwise continued 2 Sisters’ work rule prohibiting unauthorized soliciting
of contributions on company premises, rescind such work rule.
(b) If 2 Sisters maintains the work rule prohibiting distribution of printed matter on
company premises without permission at any remaining facility in the United States, or if Fresh
& Easy has adopted or otherwise continued 2 Sisters’ work rule prohibiting distribution of printed
matter on company premises without permission, rescind such work rule.
(c) If 2 Sisters maintains the work rule subjecting employees to discipline for the
“inability or unwillingness to work harmoniously with other employees” at any remaining facility
in the United States, or if Fresh & Easy has adopted or otherwise continued 2 Sisters’ work rule
subjecting employees to discipline for the “inability or unwillingness to work harmoniously with
other employees,” rescind such work rule.

9 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.
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(d) If 2 Sisters maintains the policy requiring its employees to agree to submit all
employment disputes and claims to binding arbitration as a condition of employment at any
remaining facility in the United States, or if Fresh & Easy has adopted or otherwise continued 2
Sisters’ policy requiring its employees to agree to submit all employment disputes and claims to
binding arbitration as a condition of employment, rescind such policy.
(e) If 2 Sisters maintains any of the rules or policies found to be unlawful at any
remaining facility in the United States, or if Fresh & Easy has adopted or otherwise continued
any of 2 Sisters’ rules or policies found to be unlawful, furnish all current employees with inserts
for the current Rules of Conduct, employee handbook or other document(s) that (1) advise that
the unlawful rules and policy have been rescinded, or (2) provide the language of lawful rules or
policy; or publish and distribute revised Rules of Conduct and an employee handbook that (1)
do not contain the unlawful rules and policy, or (2) provide the language of lawful rules or policy.
(f) If Fresh & Easy has maintained any records regarding the unlawful termination of
Trespalacios, within 14 days from the date of this Order, it shall remove from its files any
reference to the unlawful discharge.
(g) Within 3 days of the removing any reference to the unlawful termination of
Trespalacios from its records, and/or ensuring no such records exist, Fresh & Easy shall notify
Trespalacios that it does not maintain any records regarding her unlawful termination and that
the discharge will not be used against her in any way.
(h) Within 14 days after service by the Region, Respondent Fresh & Easy shall post
at its Riverside, California facility copies of the attached notice, in English and Spanish, marked
“Appendix A.”10 Copies of the notice, on forms provided by the Regional Director for Region 21,
after being signed by Respondent Fresh & Easy’s authorized representative, shall be posted by
Respondent Fresh & Easy and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily posted. In addition to physical
posting of paper notices, notices shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if Respondent Fresh & Easy
customarily communicates with its employees by such means. Reasonable steps shall be taken
by Respondent Fresh & Easy to ensure that the notices are not altered, defaced, or covered by
any other material. If Respondent Fresh & Easy has gone out of business or closed the facility
involved in these proceedings, it shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since February 1, 2009. 11
(i) Within 14 days after service by the Region, Respondent 2 Sisters shall duplicate
and mail, at its own expense and after being signed by Respondent 2 Sisters’ authorized

10 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
11 To the extent that Respondent 2 Sisters continues to operate any facility in the United
States where employees have been subjected to the work rules and policy found to be unlawful,
a notice identical to Appendix B but without reference to the unlawful discharge of Trespalacios
shall be posted at any such facility for the same time period and in the same manner.
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representative, copies of the attached notice marked “Appendix B”12 to all former employees
who were employed by the Respondent 2 Sisters at any time between February 1, 2009 and
June 28, 2010. For former employees who ceased working for Fresh & Easy after June 28,
2010, Fresh & Easy shall duplicate and mail the notice marked “Appendix A” in the same
manner.
(j) Within 21 days after service by the Region, Respondents shall each file with the
Regional Director for Region 21 a sworn certification of a responsible official on a form provided
by the Region attesting to the steps that the Respondents have taken to comply.
Dated, Washington, D.C. November 21, 2012

____________________
Eleanor Laws
Administrative Law Judge

12 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL not maintain a work rule prohibiting unauthorized soliciting of contributions on
company premises.
WE WILL not maintain a work rule prohibiting distribution of printed matter on company
premises without permission.
WE WILL not maintain a work rule subjecting employees to discipline for the “inability or
unwillingness to work harmoniously with other employees.”
WE WILL not maintain a policy requiring employees to agree to submit all employment disputes
and claims to binding arbitration as a condition of employment.
WE WILL not discharge or otherwise discriminate against any of you for supporting the United
Food and Commercial Workers International Union, Local 1167 or any other labor organization.
WE WILL not in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights listed above.
To the extent we adopted or otherwise maintained our predecessor employer’s unlawful work
rules and policy set forth above, WE WILL rescind them.
To the extent we adopted or otherwise maintained our predecessor employer’s unlawful work
rules and policy set forth above, WE WILL furnish all of you with inserts for the current edition of
the Rules of Conduct and employee handbook or other applicable document(s) that (1) advise
that the unlawful provisions, above, have been rescinded, or (2) provide the language of lawful
provisions; or publish and distribute to all current employees a revised Rules of Conduct and
employee handbook that (1) do not contain the unlawful provisions, or (2) provides the language
of lawful provisions.
WE WILL, within 14 days from the date of the Board's Order, ensure that our files do not contain
any reference to the unlawful discharge of Xonia Trespalacios, and remove any such references
if they exist. Within 3 days thereafter, WE WILL notify her in writing that this has been done and
that the discharge will not be used against her in any way.
Fresh & Easy Neighborhood Market, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
888 South Figueroa Street, 9th Floor
Los Angeles, California 90017-5449
Hours: 8:30 a.m. to 5 p.m.
213-894-5200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 213-894-5229.
APPENDIX B
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL not maintain a work rule prohibiting unauthorized soliciting of contributions on
company premises.
WE WILL not maintain a work rule prohibiting distribution of printed matter on company
premises without permission.
WE WILL not maintain a work rule subjecting employees to discipline for the “inability or
unwillingness to work harmoniously with other employees.”
WE WILL not maintain a policy requiring employees to agree to submit all employment disputes
and claims to binding arbitration as a condition of employment.
WE WILL not discharge or otherwise discriminate against any of you for supporting the United
Food and Commercial Workers International Union, Local 1167 or any other labor organization.
WE WILL not in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights listed above.
WE WILL rescind the work rules and policy set forth above.
WE WILL furnish all of you with inserts for the current edition of the Rules of Conduct and
employee handbook or other applicable document(s) that (1) advise that the unlawful
provisions, above, have been rescinded, or (2) provide the language of lawful provisions; or
publish and distribute to all current employees a revised Rules of Conduct and employee
handbook that (1) do not contain the unlawful provisions, or (2) provides the language of lawful
provisions.
We have removed from our files any reference to the unlawful discharge of Xonia Trespalacios,
and have notified her in writing that this has been done and that the discharge will not be used
against her in any way.
2 Sisters Food Group, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
888 South Figueroa Street, 9th Floor
Los Angeles, California 90017-5449
Hours: 8:30 a.m. to 5 p.m.
213-894-5200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 213-894-5229.