MISSION PRODUCE, INC.

National Labor Relations Board - Board Decisions

Apr 29, 2013

10-RC-095843 (N.L.R.B. Apr. 29, 2013)

NOT INCLUDED PGB
IN BOUND VOLUMES Atlanta, GA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
MISSION PRODUCE, INC.
Employer
and Case 10-RC-095843
RETAIL WHOLESALE AND DEPARTMENT
STORE UNION SOUTHEAST COUNCIL/UFCW
Petitioner
DECISION AND CERTIFICATION OF REPRESENTATIVE
The National Labor Relations Board has considered an objection to an election held
February 13, 2013, and the Regional Director’s report recommending disposition of it. The
election was conducted 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 light of the exceptions and brief,1 has adopted the
Regional Director’s findings and recommendations, and finds that a certification of
representative should be issued.

1 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, 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. at 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representation cases to Regional Directors dates back to 1961 and has never been withdrawn.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
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 exclusive collective-
bargaining representative of the employees in the following appropriate unit:
All full time and regular part-time warehouse employees, including packers,
stackers, shipping clerks, truck drivers, and QA technicians, employed by the
Employer at 3550 Southside Industrial Parkway, Suite 200, Atlanta, Georgia
30354; but excluding sales employees, office clerical employees, managers,
professional employees, guards and supervisors as defined by the Act.
Dated, Washington, D.C., April 29, 2013.
___________________________________
Mark Gaston Pearce, Chairman
___________________________________
Richard F. Griffin, Jr., Member
___________________________________
Sharon Block, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

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).