Bloomingdales, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 2013

359 N.L.R.B. 1015 (N.L.R.B. 2013)

BLOOMINGDALES, INC. 1015

359 NLRB No. 113
Bloomingdale’s, Inc. and Fatemeh Johnmohammadi.
Case 31–CA–071281
April 30, 2013
ORDER DENYING MOTION
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
Upon a charge and amended charges filed by Fatemeh
Johnmohammadi, an individual, the Acting General
Counsel issued a complaint in this proceeding on Octo-
ber 31, 2012, against Bloomingdale’s Inc., the Respond-
ent, alleging that it violated Section 8(a)(1) of the Na-
tional Labor Relations Act.
The Respondent moves to dismiss the complaint on the
ground that it is barred by the National Labor Relations
Board’s alleged lack of a quorum under Noel Canning v.
NLRB, 705 F.3d 490 (D.C. Cir. 2013). Specifically, the
Respondent contends that under the Act, all actions of
the Board, including those of its appointees, agents, and
delegatees, are void ab initio when the Board acts in the
absence of three validly appointed members. We reject
these arguments.
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, supra. However, as the court
itself acknowledged, its decision conflicts with rulings of
at least three other courts of appeals. See Evans v. Ste-
phens, 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 defini-
tive resolution, the Board is charged to fulfill its respon-
sibilities under the Act. See Belgrove Post Acute Care
Center, 359 NLRB 633, 633 fn. 1 (2013).
Moreover, to the extent that the Respondent suggests
that the Acting General Counsel lacks the power to in-
vestigate and prosecute charges of unfair labor practices
in the absence of a Board quorum, the Respondent’s ar-
gument is meritless. Under the NLRA, the General
Counsel is an independent officer appointed by the Pres-
ident and confirmed by the Senate, and staff engaged in
the investigation and prosecution of unfair labor practic-
es are directly accountable to the General Counsel. See
29 U.S.C. §153(d); NLRB v. Food & Commercial Work-
ers Local 23, 484 U.S. 112, 127–128 (1987); NLRB v.
FLRA, 613 F.3d 275, 278 (D.C. Cir. 2010). The authori-
ty of the General Counsel to investigate unfair labor
practice charges and prosecute complaints derives not
from any “power delegated” by the Board, but rather
directly from the language of the NLRA.
Accordingly, we deny the Respondent’s motion to
dismiss the complaint due to the National Labor Rela-
tions Board’s lack of a proper quorum. The Respondent
has failed to establish that it is entitled to judgment as a
matter of law.