Dairy Farmers of America

National Labor Relations Board - Unpublished Board Decisions

Jun 12, 2013

31-RC-103359 (N.L.R.B. Jun. 12, 2013)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DAIRY FARMERS OF AMERICA
Employer
and Case 31-RC-103359
TEAMSTERS LOCAL UNION NO. 186
Petitioner
ORDER
Employer’s Request for Review of the Regional Director’s Decision and Direction of
Election is denied as it raises no substantial issues warranting review.1
MARK GASTON PEARCE, CHAIRMAN
RICHARD F. GRIFFIN, JR., MEMBER
SHARON BLOCK, MEMBER
Dated, Washington, D.C., June 12, 2013.

1 The Employer contends that the Board does not have a valid quorum under Noel Canning v. NLRB, 705 F.3d 490
(D.C. Cir. 2013) and NLRB v. New Vista Nursing & Rehabilitation, 2013 WL 2099742, -- F.3d -- (3d Cir. May 16,
2013), and therefore an election cannot be directed. The Employer further contends that, due to the Board’s alleged
lack of a quorum, the Regional Director’s appointment was invalid, and so the Regional Director’s Decision and
Direction of Election was likewise invalid. For the reasons stated in Bloomingdale’s, Inc., 359 NLRB No. 113
(2013), these arguments are rejected.
We likewise reject the Employer’s related contention that the Regional Director would lack authority to process
representation petitions if the Board lacked a quorum. The Board’s delegation of its decisional authority in
representation cases to Regional Directors dates back to 1961 and has never been withdrawn. See 26 Fed. Reg.
3889 (May 4, 1961). Consistent with the 1961 Delegation, NLRB Regional Directors remain vested with the
authority to conduct elections and certify their results, regardless of the Board’s composition at any given moment.
Furthermore, in New Process Steel, the Supreme Court expressly stated that such delegations were not affected by
its decision, and, following that decision, no fewer than three courts of appeals have upheld the principle that Board
delegations of authority to non-members remain valid during a loss of quorum by the Board. See New Process Steel
L.P. v. NLRB, 130. S.Ct. 2635, 2643 n.4 (2010); Frankl v. HTH Corp., 650 F.3d 1334, 1354 (9th Cir. 2011); Osthus
v. Whitesell Corp., 639 F.3d 841, 844 (8th Cir. 2011); Overstreet v. El Paso Disposal, LP, 625 F.3d 844, 853 (5th
Cir. 2010).