MRS. GREEN'S NATURAL MARKET D/B/A FRESH & GREEN'S

National Labor Relations Board - Board Decisions

Aug 29, 2014

361 N.L.R.B. 362 (N.L.R.B. 2014)

362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fresh & Green’s of Washington, D.C., LLC and Unit-
ed Food and Commercial Workers, Local 400.
Case 05–CA–065595
August 29, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On June 28, 2013, the Board issued a Decision and
Order in this proceeding, which is reported at 359 NLRB
1314 (2013). Thereafter, the Respondent filed a petition
for review in the United States Court of Appeals for the
District of Columbia Circuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the Board
issued an order setting aside the Decision and Order, and
retained this case on its docket for further action as ap-
propriate.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s supplemental decision and the record in light of
the exceptions and briefs. We have also considered the
now-vacated Supplemental Decision and Order, and we
agree with the rationale set forth therein.1 Accordingly,
1 The judge found that the General Counsel established under Wright
Line, 251 NLRB 1083, 1089 (1980), enfd. 622 F.2d 899 (1st Cir. 1981),
cert. denied 495 U.S. 989 (1982), that the Respondent unlawfully dis-
charged employee Maria Yliquin for her protected conduct as a shop
steward. The Respondent excepts to this finding, claiming, in part, that
the General Counsel failed to show that the Respondent harbored ani-
mus toward Yliquin’s activities as a steward because the Respondent
did not discharge another steward, employee Sally Crabb. In rejecting
that argument, the judge noted that Crabb “may not have been as ag-
gressive in that position as Yliquin.” We need not rely on the judge’s
inference. Instead, we apply the well-established principle that “[a]
discriminatory motive, otherwise established, is not disproved by an
employer’s proof that it did not take similar actions against all union
adherents.” Master Security Services, 270 NLRB 543, 552 (1984); see
also Conley Trucking, 349 NLRB 308, 323 fn. 38 (2007), enfd. 520
F.3d 629 (6th Cir. 2008) (citing NLRB v. Nabors, 196 F.2d 272, 276
(5th Cir. 1952)).
Member Johnson concurs with his colleagues that the Respondent
violated Sec. 8(a)(3) and (1) by discharging both employees Maria
Yliquin and Esam Amireh, but with two important caveats.
Regarding Amireh’s discharge, the General Counsel was required to
demonstrate, as part of his prima facie case under Wright Line, that the
Respondent, through Store Manager Mary Huffman, had knowledge
that Union Representative Richard Wildt brought Amireh’s scheduling
concerns to Huffman both on Amireh’s behalf and at his request. Be-
we affirm the judge’s rulings, findings, and conclusions
and adopt the judge’s recommended Order2 to the extent
and for the reasons stated in the Supplemental Decision
and Order reported at 359 NLRB 1314, which is incorpo-
rated herein by reference.
APPENDIX
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

cause the record confirms this knowledge, Member Johnson joins his
colleagues in finding the violation.
Moreover, the Respondent argues that Huffman had discretion con-
cerning whether to hire/retain Yliquin (and Amireh) when the D.C.
store changed ownership, and that Huffman’s decision to retain Yliquin
(and Amireh) belies any antiunion animus. This argument essentially
raises the same-actor inference from Title VII law, under which courts
assume that where the same person does the hiring and termination of
an employee, the discharge was not likely to have been because of an
unlawful discriminatory motive. See Tellepsen Pipeline Services Co. v.
NLRB, 320 F.3d 554, 569–570 fn. 4 (5th Cir. 2003) (finding in a Sec.
8(a)(3) case that the same-actor inference “is not implicated by the
facts” but noting that it “has been applied only in [the] context of race,
gender, and age discrimination cases”).
In Member Johnson’s view, consideration of the same-actor infer-
ence should not be foreclosed in the Board’s traditional discrimination
analysis. For instance, where the nature and extent of an alleged dis-
criminatee’s union or protected concerted activity was the same at the
time of hire and at the time of discharge, and the same person con-
trolled both the hiring and the termination decisions, the same-actor
inference might well apply. However, the inference would not apply in
this case because the hiring decision was actually made on a corporate-
wide basis by more highly-placed individuals. While store managers
such as Huffman might have been able to argue—perhaps even suc-
cessfully—in favor of individual exceptions to a blanket hiring deci-
sion, such influence is not the functional equivalent of the same person
having discrete hiring and discharge authority with respect to a particu-
lar employee such as Yliquin or Amireh. Further, the inference would
not apply here because the protected activity at issue generally occurred
after the Respondent made the decision to hire Yliquin and Amireh.
2 In adopting paragraphs 2(c) and 2(d) of the Board’s June 28, 2013
Order, we rely on Don Chavas LLC d/b/a Tortillas Don Chavas, 361
NLRB 102 (2014). In addition, we substitute the attached notice in
accordance with our decision in Durham School Services, 360 NLRB
694 (2014).
361 NLRB No. 35

FRESH & GREENS OF WASHINGTON, D.C., LLC 363
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the United Food &
Commercial Workers, Local 400, or any other labor or-
ganization.
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, within 14 days from the date of the Board’s
Order, offer Maria Yliquin and Esam Amireh full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Maria Yliquin and Esam Amireh
whole for any loss of earnings and other benefits result-
ing from their discharges, less any net interim earnings,
plus interest.
WE WILL compensate Maria Yliquin and Esam Amireh
for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and WE WILL file a report with
the Social Security Administration allocating the back-
pay award to the appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Maria Yliquin and Esam Amireh, and
WE WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the discharges
will not be used against them in any way.

FRESH & GREEN’S OF WASHINGTON, D.C., LLC

The Board’s decision can be found at
www.nlrb.gov/case/05–CA–065595 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.