Fordham Hill Owners Corporation

National Labor Relations Board - Board Decisions

Apr 29, 2013

02-RC-098661 (N.L.R.B. Apr. 29, 2013)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
FORDHAM HILL OWNERS CORPORATION
Employer
and Case 02-RC-098661
UNITED FEDERATION OF SPECIAL POLICE
and SECURITY OFFICERS, INC.
Petitioner
DECISION AND ORDER
On April 9, 2013, we issued an Order denying the Employer’s Request for Review of the
Regional Director’s Decision and Direction of Election and also denying the Employers’ request
to hold this proceeding in abeyance. We stated that a decision would follow.
In its Request for Review, the Employer contends that the Regional Director’s Decision
and Direction of Election should be rescinded and the petition dismissed, or held in abeyance,
because the Board and the Regional Director lack the authority to act in this matter. We find no
merit in these contentions and accordingly find that the Employer has raised no substantial issues
warranting review.1

1 Specifically, the Employer contends that the Board lacks a quorum because the President’s recess appointments are
constitutionally invalid. We reject this argument. We recognize that the United States Court of Appeals for the
District of Columbia Circuit has concluded that the President’s recess appointments were not valid. See Noel
Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). However, we agree with the Regional Director that, as the court
itself acknowledged, its decision conflicts with rulings of at least three other courts of appeals. See Evans v.
Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005); U.S. v. Woodley, 751 F.2d 1008 (9th
Cir. 1985); U.S. v. Allocco, 305 F.2d 704 (2d Cir. 1962). This question remains in litigation, and pending a
definitive resolution, the Board is charged to fulfill its responsibilities under the Act. See Belgrove Post Acute Care
Center, 359 NLRB No. 77, slip op. 1, fn. 1 (2013).
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representation cases to Regional Directors dates back to 1961 and has never been withdrawn.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
MARK GASTON PEARCE, CHAIRMAN
RICHARD F. GRIFFIN, JR., MEMBER
SHARON BLOCK, MEMBER
Dated, Washington, D.C., April 29, 2013.

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).