MISSION PRODUCE, INC.

National Labor Relations Board - Board Decisions

Feb 5, 2015

362 NLRB No. 15 (N.L.R.B. 2015)

362 NLRB No. 15
.NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Mission Produce, Inc. and Retail, Wholesale, and De-
partment Store Union, Southeast Coun-
cil/UFCW. Cases 10–CA–106374 and 10–RC–
095843
February 5, 2015
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed by the Union on
June 3, 2013, the Acting General Counsel issued the
complaint on June 14, 2013, alleging that the Respondent
has violated Section 8(a)(5) and (1) of the Act by refus-
ing the Union’s request to bargain following the Union’s
certification in Case 10–RC–095843. The Respondent
filed an answer admitting in part and denying in part the
allegations in the complaint, and asserting affirmative
defenses.
On July 3, 2013, the Acting General Counsel filed a
Motion for Summary Judgment. On July 9, 2013, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. No party responded.
The National Labor Relations Board has consolidated
these proceedings and delegated its authority in this pro-
ceeding to a three-member panel.
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification on the ground that
the Board lacked a quorum under NLRB v. Noel Can-
ning, 705 F.3d 490 (D.C. Cir. 2013), affirmed in relevant
part 134 S.Ct. 2550 (2014), and Laurel Baye Healthcare
of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir.
2009). The Respondent contends that in the absence of a
quorum, the Board’s agents and/or delegees lacked the
authority to act on the Board’s behalf. Therefore, the
Respondent argues, the petition in the representation pro-
ceeding was improperly processed, the election was im-
properly held, the Union should not have been certified,
and the matter should have been dismissed.
At the time of the Decision and Certification of Repre-
sentative in Case 10–RC–095843, the composition of the
Board included two persons whose appointments to the
Board had been challenged as constitutionally infirm.
On June 26, 2014, the United States Supreme Court is-
sued its decision in NLRB v. Noel Canning, supra, hold-
ing that the challenged appointments to the Board were
not valid. Under these circumstances, we will not give
the prior Decision and Certification of Representative
preclusive effect, and we will consider anew the matters
raised in the underlying representation proceeding.
In its objection to the election, the Respondent argued
for the first time that the processing of the petition was
barred because the Board lacked a quorum. The Re-
spondent offers no justification for its failure to make
this argument in a timely fashion in the representation
proceeding. Indeed, the Respondent not only failed to
raise a timely challenge to the authority of the Regional
Director, it entered into a Stipulated Election Agreement
in which it waived the right to a hearing and expressly
agreed to the conduct of a secret-ballot election. There-
fore, we reject the Respondent’s arguments as untimely,
and we find that the Respondent is estopped from attack-
ing the propriety of an election to which it has expressly
agreed. See ManorCare of Kingston, PA, LLC, 361
NLRB No. 17, slip op. at 1 fn. 1 (2014).
Moreover, even assuming that the Respondent’s chal-
lenge to the Regional Director’s authority was not other-
wise barred, the Respondent’s argument is without merit.
The delegation to Regional Directors of the authority to
enter into Stipulated Election Agreements and conduct
elections pursuant thereto is longstanding. See, e.g.,
Douglas Aircraft Co., 56 NLRB 281 (1944). Congress
expressly indicated its approval of this practice in Sec-
tion 9(c)(4) of the Act. More generally, in 1961, the
Board delegated decisional authority in representation
cases to Regional Directors pursuant to the 1959
amendment of Section 3(b) of the National Labor Rela-
tions Act expressly authorizing such a delegation. Pub.
L. 86-257, 86th Cong., 1st Sess., § 701(b), 73 Stat. 519,
542; 26 Fed.Reg. 3911 (1961); see Magnesium Casting
Co. v. NLRB, 401 U.S. 137, 142 (1971) (by Sec. 3(b)
Congress allowed the Board to make a delegation of its
authority over representation elections to the Regional
Director). This delegation occurred when the Board had
a quorum and has never been revoked. Finally, Section
102.178 of the Board’s Rules and Regulations provides
that “during any period when the Board lacks a quorum
normal Agency operations should continue to the great-
est extent permitted by law.” See also Section 102.182
(representation cases should be processed to certification
“[t]o the extent practicable”); The Avenue Care & Reha-
bilitation Center, 361 NLRB No. 151, slip op. at 1 fn. 1
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(2014); Durham School Services, LP, 361 NLRB No. 66
(2014).1
The Board has considered anew the objection to the
election held in Case 10–RC–095843 on February 13,
2013, and the Regional Director’s report recommending
disposition of it. As noted above, the election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 5 for and 1 against the Petitioner,
with no challenged ballots.
The Board has reviewed the record in Case 10–RC–
095843 in light of the exception and brief, has adopted
the Regional Director’s findings and recommendations to
the extent and for the reasons stated above, and finds that
a certification of representative should be issued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Retail, Wholesale, and Department Store
Union, Southeast Council/UFCW, and that it is the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full time and regular part-time warehouse employ-
ees, including packers, stackers, shipping clerks, truck
drivers, and QA technicians, employed by Mission
Produce, Inc. at 3550 Southside Industrial Parkway,
Suite 200, Atlanta, Georgia 30354; but excluding sales
employees, office clerical employees, managers, pro-
fessional employees, guards and supervisors as defined
by the Act.
NOTICE TO SHOW CAUSE
As noted above, the Respondent has refused to bargain
for the purpose of testing the validity of the certification

1 In view of the Board’s disposition of the merits of the Respond-
ent’s contentions as described in the text, Member Miscimarra does not
reach or rely on the discussion of waiver, supra.
of representative in the U.S. Courts of Appeals. Alt-
hough the Respondent’s legal position may remain un-
changed, it is possible that the Respondent has or intends
to commence bargaining at this time. It is also possible
that other events may have occurred during the pendency
of this litigation that the parties may wish to bring to our
attention.
Having duly considered the matter,
1. The General Counsel is granted leave to amend the
complaint on or before February 17, 2015, to conform
with the current state of the evidence.
2. The Respondent’s answer to the amended com-
plaint is due on or before March 3, 2015.
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before March 24, 2015 (with affidavit of
service on the parties to this proceeding), as to why the
Board should not grant the General Counsel’s motion for
summary judgment. Any briefs or statements in support
of the motion shall be filed by the same date.
Dated, Washington, D.C. February 5, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD