Peacock Productions of NBC Universal Media, LLC

National Labor Relations Board - Unpublished Board Decisions

Jun 12, 2013

02-RC-092111 (N.L.R.B. Jun. 12, 2013)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
PEACOCK PRODUCTIONS OF NBC UNIVERSAL MEDIA, LLC
Employer
and Case 02-RC-092111
WRITERS GUILD OF AMERICA EAST, INC.
Petitioner
ORDER
Employer’s Request for Review of the Regional Director’s Decision and Direction
of Election is granted as it raises substantial issues with regard to the supervisory status
of the freelance and run-of-show producers.1
MARK GASTON PEARCE, CHAIRMAN
RICHARD F. GRIFFIN, JR., MEMBER
SHARON BLOCK, MEMBER
Dated, Washington, D.C., June 12, 2013

1 The Employer argues that the Board lacks a quorum because the President’s
recess appointments of two current Board members were constitutionally invalid. We
reject this argument for the reasons stated in Bloomingdales, Inc., 359 NLRB No. 113
(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Directors dates back to 1961 and has never been withdrawn.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 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).