Thursday, March 4, 2010

Administrative Law Judge Finds Tesco's Fresh & Easy Neighborhood Market Violated Labor Relations Act in Ex-Store Employee, UFCW Union Complaint

Tesco's Fresh & Easy Neighborhood Market has been found by a Federal Administrative Law Judge to be in violation of a section of the U.S. National Labor Relations Act, regarding an unfair labor practices complaint filed with the National Labor Relations Board (NRLB) against the El Segundo, California-based food and grocery chain last year by Deana Kenton, a former employee at Fresh & Easy store number 1247 on East Lake Mead Boulevard in Las Vegas, Nevada, and the United Food & Commercial Workers Union (UFCW).

Former store employee Kenton, who was fired by Fresh & Easy, and the UFCW union charged in their unfair labor practices complaint last year that Tesco's Fresh & Easy Neighborhood Market violated Sections 8(a)(1), (3), and (4) of the National Labor Relations Act.

These sections of the act pertain in general to allowing employees the free ability, within mandated guidelines, to involve themselves in the organization of labor unions at the workplace. Administrative Law Judge Gregory Z. Meyerson heard the case in Las Vegas, Nevada on November 17-18, 2009.

The complaint charged that Tesco's Fresh & Easy Neighborhood Market violated Section 8(a)(1) of the National Labor Relations Act by "promulgating and maintaining an unlawful no-distribution policy, by interrogating its employees about their union activities and sympathies, by creating an impression among its employees that their union activities were under surveillance, and by soliciting employee complaints and grievances and promising to improve terms and conditions of employment if the employees refrained from union organizational activities."

Additionally, Ms. Kenton's and the UFCW union's complaint alleged that Fresh & Easy "violated Section 8(a)(3) of the Act by discharging its employees Tamara Williams (Williams) and Deana Kenton (Kenton) because of their support for the Union, and also violated Section 8(a)(4) of the Act by discharging Kenton because she cooperated with the Board in the investigation of unfair labor practices charges filed against the Respondent."

Tesco's Fresh & Easy denied they committed any unfair labor relations practices and fought the case at the two day hearing in November.

Judge Meyerson's decision on Deana Kenton's and the UFCW's unfair labor practices complaint against Tesco's Fresh & Easy has only been released by the NRLB recently. The first release date for the full decision was February 5, 2010, and a second notice was just released on March 3, 2010.

In his decision Judge Meyerson found that Tesco's Fresh & Easy Neighborhood Market had violated Section 8(a)(1) of the National Labor Relations Act, which basically prohibits employers from interfering with the rights of employees to organize, form, join, or assist a labor organization or union and to bargain collectively. [The complete language of the Act is here.]

The judge, however, recommended in his ruling that the other unfair labor act charges against Fresh & Easy contained in the complaint be dismissed.

Below (in italics) is Judge Meyerson's "order of action" for Tesco's Fresh & Easy to take having been found to have committed the labor relations act violation:


The Respondent, Fresh & Easy Neighborhood Market Inc., its officers, agents, successors, and assigns, shall

1. Cease and desist from:(a) Promulgating and maintaining in its employee handbook and on its company intranet site an unlawfully broad no-distribution rule prohibiting the distribution of literature on its premises for any purpose;

(b) Interrogating its employees about their union activities and sympathies;

(c) Creating an impression among its employees that their union activities were under surveillance; and

(d) In any like and related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them by Section 7 of the Act.2. Take the following affirmative action necessary to effectuate the policies of the Act:(a) Within 14 days after service by the Region, post at each of its Las Vegas, Nevada, area stores copies of the attached notice marked “Appendix.”27 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed any of the stores involved in these proceedings, the Respondent 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 April 1, 2009; and

(b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

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.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.

Dated at Washington, D.C. on February 9, 2010.

Gregory Z. Meyerson

Administrative Law Judge

[You can view the actual written notice Fresh & Easy is required to post in all of its Metropolitan Las Vegas, Nevada region stores at page 3o in the document linked here.]

Decisions by Administrative Law Judges are not binding legal precedent. And such decisions can be appealed to formal legal courts if one or both parties involved choose to do so, unless they've agreed in advance to not do so.

Judge Meyerson's complete decision, along with the full narrative history (which is an interesting read) of the unfair labor practices complaint filed last year by former Fresh & Easy Las Vegas store employee Deana Kenton and the United Food & Commercial Workers union, is available at this link.

We suggest you review the document in order to get a comprehensive understanding of the case from the perspectives of both sides.

Fresh & Easy Buzz has reported on, written about, and offer extensive analysis on the UFCW union's campaign to organize Tesco Fresh & Easy store workers and Fresh & Easy's response. You can read a selection of those posts here.


Anonymous said...

Fresh and Easy California stores threaten survailence on employees all the time for theft.

Fresh & Easy Buzz said...

Anonymous said...
Fresh and Easy California stores threaten survailence on employees all the time for theft.

March 25, 2010 9:24 PM

RE: Anon:

It would be helpful to the readers if you would elaborate on your statement/comment a bit. Feel free to do so here. Or send us an e-mail at

Anonymous said...

In the UK cameras are everwhere. Although many Americans aren't used to Big Brother follwing us, eventually survealliance cameras will be commonplace.

There are countless video cams at fresh and easy. Two in every aisle, in the employee breakroom, parking lot, & back room - including in the coolers. Cameras recording audio & video are literally everywhere. I'm sure the abundance of cameras prevent internal theft, the most common cause of theft in a retail environment.

I feel the cameras are there to moinitor employees more than anyone. After a few occourances of vandalisim & theft nothing was done to at the very least identify the person so they would be disallowed from the shop. However, should an empolyee be documented taking so much as a dying flower, they would be fired & charged with theft. Its a strange double standard, but it does keep employees honest.

Anonymous said...

It is not just Fresh and Easy that has this issue! Wild Rocket Foods their producer hired a team of security guards to monitor different areas of their building in Riverside, CA. They did not want the Union people or practices there either!! However, I can tellyou first hand what is going on! I worked there! Do not supportF&E by shopping there! Wild Rocket has violated every Civil Right and Workers' Comp. law you can imagine!!! This will all come out eventually how all of the higher ups are able to come to America and make a huge profit on stocks but as a whole F&E are showing the biggest lost!!

Anonymous said...

Harrassment is a two way street. I was just hassled by union organizers at a Fresh and Easy in CA, claiming F&E violates labor laws. I guess so, but the law took care of it. Before union workers unfurl their "Shame on so and so" banners they ought to examine their own behavior first. I see a double standard there. Based on this and the behavior during the last strike I don't have much respect for UFCW.

Anonymous said...

I am an American who firmly believes in the rights of workers and the power of unions. I myself am a public servant and have paid union dues, and was raised by a mom who was a teacher whose union was strong in protecting the rights of it's workers. HOWEVER, the idea of unionizing Fresh & Easy is LUDICROUS to me. #1, Tesco, as has been said is from the UK. #2, and more importantly, imho, F&E was launched from the beginning as a NEW TYPE OF MARKET. A SELF-SERVE Market!!!!!!! Can I repeat, SELF SERVE!!! Unionizing American Tech Support Pros, Webmasters or Paralegals--YES, Worthy of Consideration. Unionizing F&E employees who don't even ring up the groceries??? That to me is a blinded sense of entitlement. Go get a job at Vons/Safeway or Ralphs/Kroger...