Fred Meyer Stores, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 2010

355 NLRB No. 141 (N.L.R.B. 2010)

355 NLRB No. 141
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.
Fred Meyer Stores, Inc. and United Food and Com-
mercial Workers Local 367, affiliated with
United Food and Commercial Workers Interna-
tional Union. Cases 19–CA–32171
August 26, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On January 4, 2010, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 354 NLRB No. 127.1 Thereafter, the
Respondent filed a petition for review in the United
States Court of Appeals for the District of Columbia Cir-
cuit. On June 17, 2010, the United States Supreme Court
issued its decision in New Process Steel, L.P. v. NLRB,
130 S.Ct. 2635, holding that under Section 3(b) of the
Act, in order to exercise the delegated authority of the
Board, a delegee group of at least three members must be
maintained. Thereafter, the Board issued an order setting
aside the above-referenced decision and order, and re-
tained this case on its docket for further action as appro-
priate.
The National Labor Relations Board has consolidated
these proceedings and delegated its authority in both pro-
ceedings to a three-member panel.2
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. The Board’s January 4, 2010 decision states that the
Respondent is precluded from litigating any representa-
tion issues because, in relevant part, they were or could
have been litigated in the prior representation proceed-

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 Consistent with the Board’s general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the members who participated in the original deci-
sion. Furthermore, under the Board’s standard procedures applicable to
all cases assigned to a panel, the Board Members not assigned to the
panel had the opportunity to participate in the adjudication of this case
prior to the issuance of this decision.
ing. The prior proceeding, however, was also a two-
member decision and we do not give it preclusive effect.
We have considered the Respondent’s request for re-
view of the Regional Director’s Decision and Direction
of Election, and find that it raises no substantial issues
warranting review. Accordingly, we affirm the decision
to deny the request for review in the prior proceeding.
Having resolved the representation issues raised by the
Respondent in this proceeding, we next consider the
question whether the Board can rely on the results of the
election. For the reasons stated below, we find that the
election was properly held and the tally of ballots is a
reliable expression of the employee’s free choice.
As an initial matter, had the Board decided not to issue
decisions during the time that the delegee group con-
sisted of two Board Members, the Regional Director
would have conducted the election as scheduled and im-
pounded the ballots. In this regard, Section 102.67(b) of
the Board’s Rules and Regulations states:
The Regional Director shall schedule and conduct any
election directed by the [Regional Director’s] decision
notwithstanding that a request for review has been filed
with or granted by the Board. The filing of such a re-
quest shall not, unless otherwise ordered by the Board,
operate as a stay of the election or any other action
taken or directed by the Regional Director: Provided,
however, That if a pending request for review has not
been ruled upon or has been granted[,] ballots whose
validity might be affected by the final Board decision
shall be segregated in an appropriate manner, and all
ballots shall be impounded and remain unopened pend-
ing such decision. (Emphasis in original).
.
See also Casehandling Manual (Representation) Secs.
11274, 11302.1(a) (same). In such a scenario, after resolv-
ing the representation issues, we would direct that the im-
pounded ballots be opened and counted.
Thus, it is clear that the decision of the two sitting
Board Members to continue to issue decisions did not
affect the outcome of the election. With or without a
two-member decision on the original request for review,
the election would have been conducted as scheduled.
This result is required by Section 102.67(b) of the
Board’s Rules, and, under New Process Steel, the two
sitting Board Members did not have the authority to issue
an order directing otherwise. Since the timing of the
election was not affected by the issuance of a two-
member decision on the request for review, we find that
the decision of the Regional Director to open and count
the ballots was, at worst, harmless error that did not af-
fect the tally of ballots. Similarly, we find that the Re-
gional Director’s Certification of Representative based
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
on that tally was valid.3 Accordingly, inasmuch as there
is no valid basis for challenging the results of the election
or the Regional Director’s Certification of Representa-
tive, we will rule on the General Counsel’s Motion for
Summary Judgment.
Ruling on Motion for Summary Judgment
The Respondent admitted its refusal to bargain prior to
the decision in New Process Steel, but contests the valid-
ity of the Union’s certification. Having found no merit
in the Respondent’s challenges to the representation pro-
ceedings, we grant the Motion for Summary Judgment
and, to the extent consistent herewith, adopt the findings
of fact, conclusions of law, remedy, and order set forth in
the decision and order reported at 354 NLRB No. 127
(2010), which has been set aside and which is incorpo-
rated herein by reference.4

3 There is no question that a majority of valid ballots was cast for
the Union. To the extent that the date of the Certification of Represen-
tative may be significant in future proceedings, we will deem the Certi-
fication of Representative to have been issued as of the date of this
decision.
4 The Respondent has refused to bargain for the purpose of testing
the validity of the certification of representative in the U.S. Courts of
Appeals. The complaint so alleges and the Respondent admitted that
Dated, Washington, D.C. August 26, 2010
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
Craig Becker, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

allegation. We presume that Respondent’s legal position remains un-
changed, and therefore conclude that the Respondent will continue to
refuse to bargain for that purpose notwithstanding the Board’s decision
on the representation issues in this matter. We therefore find that fur-
ther proceedings would serve no purpose other than to delay the en-
forcement of employees’ rights under the Act. We further find that no
party will be prejudiced by the disposition of the motion for summary
judgment at this time. If the Respondent has or intends to commence
bargaining at this time, it may file a motion for reconsideration so stat-
ing and the Board will issue an appropriate order.
In incoporporating the prior decision, we note that we no longer rely
on Alta Vista Regional Hospital, 352 NLRB 809 (2008).