Friday, November 13, 2015

NLRB v. Fresh & Easy Neighborhood Market (9th Cir. - Nov. 13, 2015)

The Ninth Circuit issues this labor law opinion today, written by Judge Berzon.  I'll say as an aside that I'd loved to have been there when the petitioner, the United Food and Commercial Workers Union, learned that Judge Berzon -- a famous union-side labor law attorney -- was on the panel; moreover, that she was joined by Judge Pregerson (and a district judge sitting by designation).  Talk about a dream panel for your side!  The resulting party at the UFCW must have been a blast.

It'll perhaps come as no surprise to learn that the UFCW wins the appeal.  The Ninth Circuit decides that the subpoena that the UFCW issued to Fresh & Easy was not, in fact, properly served, but that the improper service didn't matter because Fresh & Easy didn't properly exhaust its remedies and did not suffer any prejudice from the improper service.  So the subpoena -- which was issued in advance of an NLRB hearing about an unfair labor charge -- should be enforced.

Fair enough.

There's a Fresh & Easy store very close to my home, and it's a place where my family often shops.  For that reason, plus the fact I read the news, I'm keenly aware that while the dispute at issue here was undoubtedly hotly contested when it was first brought (in January 2011), the relevance of this issue (and the subpoena) seems virtually nil at this point.  Since Fresh & Easy is now closing of its stores and going out of business.  Indeed, just last night, my wife stopped by there to try to pick up a few things, and described the place as being like an old-time Eastern European grocery store.  The shelves are nearly empty, with only the most random grocery items left for sale (albeit at huge discounts).  And even the things like the store's lights and fixtures have price tags on them.  If there's ever a place where a sign "Everything Must Go!" would be appropriate, Fresh & Easy fits the bill.

And it's not just my local neighborhood store.  Every Fresh & Easy is closing.  Forever.

So the respondent, Fresh & Easy, is now in bankruptcy, and is liquidating.  And won't have any (or at least any union) employees in very short course.

For this reason, I looked at the opinion to see if there was any discussion about whether the case is moot or not.  Since, at this point, I'm not at all sure that anyone cares in the slightest about whether Fresh & Easy did something wrong in December 2010 when it posted signs in front of four of its California stores that said "“Sorry but we don’t allow solicitation, loitering or the posting of flyers."  Similarly, I have some serious reservations about whether the NLRB hearing about this alleged unfair labor practice -- for which the subpoenas at issue were issued -- actually matters at all at this point, or will ever actually recommence.  Since everyone's being laid off anyway.  Any mention of any of this stuff, or whether it makes the case moot?

Nope.  No mention.  Not even in a footnote.

Which maybe doesn't matter on the merits.  Maybe since, at I type, there's still at least one unionized employee manning the cashier at a nearly-vacant Fresh & Easy store, the appeal isn't technically moot.  (Though I still wonder, given the realities of the situation, whether federal courts and/or the NLRB can grant any effective relief at this point, which might matter doctrinally.)

I guess we'll have to see.

I'll add one closing observation.  The appeal was filed in 2012.  Oral argument in the Ninth Circuit was heard on February 6, 2014.  The unanimous opinion, without a dissent, was issued today, over a year and a half after oral argument.

Twenty-one months is a long time to write an opinion.  Things can happen in the meantime.

Including but not limited to one of the parties going completely out of business and the case becoming effectively over.