Manna Development Group, LLC and Bread of Life, LLC d/b/a Panera Bread, Joint Employers and/or a Sin

National Labor Relations Board - Board Decisions

Dec 16, 2014

361 N.L.R.B. 1236 (N.L.R.B. 2014)

1236 DECISIONS OF THE NATIONAL RELATIONS BOARD
Bread of Life, LLC d/b/a Panera Bread and Local 70,
Bakery, Confectionery, Tobacco Workers and
Grain Millers International Union (BCTGM),
AFL–CIO, CLC. Cases 07–CA–088519 and 07–
RC–072022
December 16, 2014
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
On November 21, 2012, the National Labor Relations
Board issued a Decision and Order in this proceeding,
which is reported at 359 NLRB 273. Thereafter, the Re-
spondent filed a petition for review in the United States
Court of Appeals for the District of Columbia Circuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the court
of appeals remanded this case for further proceedings
consistent with the Supreme Court’s decision.
The National Labor Relations Board has consolidated
the underlying representation proceeding with this unfair
labor practice proceeding and delegated its authority in
both proceedings to a three-member panel.
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. The Board’s November 21, 2012 decision
states that the Respondent is precluded from litigating
any representation issues because, in relevant part, they
were or could have been litigated in the prior representa-
tion proceedings. The prior proceeding, however, also
occurred at a time when the composition of the Board
included two persons whose appointments to the Board
had been challenged as constitutionally infirm, and we
do not give it preclusive effect. Accordingly, we consid-
er below the representation issues that the Respondent
has raised in this proceeding.
In its response to the Notice to Show Cause, the Re-
spondent reiterates its challenge to the composition of the
bargaining unit, arguing the certified unit of bakers is not
an appropriate unit for bargaining because it includes
bakers from only 6 of Respondent’s cafes, instead of all
17 cafes in its West Michigan Market.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
Respondent’s arguments in support of its Request for
Review of the Acting Regional Director’s Decision and
Direction of Election, and we find them without merit.
Accordingly, we deny the Request for Review in Case
07–RC–072022 as it raises no substantial issues warrant-
ing review.1
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 employ-
ees’ free choice.
As an initial matter, had the Board decided not to issue
decisions during the time that the composition of the
Board included two persons whose appointments to the
Board had been challenged as constitutionally infirm, the
Acting Regional Director would have conducted the elec-
tion as scheduled and counted the ballots. In this regard,
Section 102.67(b) of the Board’s Rules and Regulations
states, in relevant part:

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,
1 The Petitioner seeks to represent bakers working at the Respond-
ent’s six I-94 Corridor district cafes. The Respondent contends that the
unit should also include bakers working at its stores in its Grand Rapids
and Lakeshore districts. In denying the Respondent’s Request for
Review of the Acting Regional Director’s determination that the peti-
tioned-for unit is appropriate, we find that bakers at the I-94 Corridor
district cafes share a community of interest that is distinct from bakers
in the other districts. As found by the Acting Regional Director, the I-
94 Corridor is geographically coherent and distinct from the Grand
Rapids and Lakeshore districts; vacancy postings for baker positions do
not overlap between the I-94 Corridor and Grand Rapids/Lakeshore
districts; and there is little to no interdistrict interaction among the
bakers, as demonstrated by the separate celebration meetings. In addi-
tion, the Respondent groups bakers at the I-94 Corridor cafes on one
schedule, and groups bakers at the Grand Rapids and Lakeshore cafes
on another; the lead baker at an I-94 Corridor cafe performs attendance
checks only for cafes in the I-94 Corridor; there is a baker training
specialist devoted only to the Grand Rapids/Lakeshore districts and
another devoted to the I-94 Corridor district; and split shifts are only
available within a district. To be sure, as the Respondent states, there
are factors that support a West Michigan Market unit. However, all the
factors discussed above indicate that the I-94 bakers are at least a de
facto grouping. In these circumstances, we agree that the I-94 bakers
possess a sufficient community of interest to constitute an appropriate
unit. See generally NLRB v. Carson Cable TV, 795 F.2d 879, 884 (9th
Cir. 1986). Cf. Bashas’, Inc., 337 NLRB 710, 711 (2002) (petitioned-
for unit found inappropriate where no geographic coherence, lack of
conformity to administrative function or organizational grouping, and
no shared common supervision separate from employees at other
stores). Accordingly, we do not reach the question of whether the
Board’s test in Specialty Healthcare & Rehabilitation Center of Mobile,
357 NLRB No. 83 (2011), enfd. Kindred Nursing Center East, LLC v.
NLRB, 727 F.3d 552 (6th Cir. 2013), applies.
361 NLRB No. 142

PANERA BREAD 1237
operate as a stay of the election or any other action tak-
en 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, Part 2, Representation Pro-
ceedings, Sections 11274 and 11302.1(a) (same).
However, this vote and impound process does not ap-
ply when the Board lacks a quorum. In this regard, Sec-
tion 102.182 of the Board’s Rules and Regulations states:

Representation cases should be processed to certifica-
tion.— During any period when the Board lacks a
quorum, the second proviso of § 102.67(b) regarding
the automatic impounding of ballots shall be suspend-
ed. To the extent practicable, all representation cases
should continue to be processed and the appropriate
certification should be issued by the Regional Director
notwithstanding the pendency of a request for review,
subject to revision or revocation by the Board pursuant
to a request for review filed in accordance with this
subpart.

Thus, it is clear that the decision of the Board to con-
tinue to issue decisions did not affect the outcome of the
election. With or without a decision on the original Re-
quest for Review, the election would have been conduct-
ed as scheduled. This result is required by Section
102.67(b) of the Board’s rules, and, under Noel Canning,
the sitting Board Members did not have the authority to
issue an order directing otherwise. Thus, the timing of
the election was not affected by the issuance of a deci-
sion on the request for review, and we find that the de-
termination by the Acting Regional Director to open and
count the ballots was appropriate and in accordance with
Section 102.182. In any event, the actions of the Acting
Regional Director did not affect the tally of ballots. Ac-
cordingly, we will rely on the results of the election and
issue an appropriate certification.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Local 70, Bakery, Confectionery, Tobacco
Workers and Grain Millers International Union
(BCTGM), AFL–CIO, CLC, and that it is the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:

All full-time and regular part-time bakers, lead bakers,
and lead training bakers employed by Respondent at its
facilities located at 5119 West Main Street, Kalamazoo,
Michigan; 5627 Gull Road, Kalamazoo, Michigan;
5970 South Westnedge Avenue, Portage, Michigan;
2810 Capitol Avenue SW, Battle Creek, Michigan;
1285 Boardman Road, Jackson, Michigan 49202; and
3260 Niles Road, St. Joseph, Michigan; but excluding
all clerks, baker training specialists, confidential em-
ployees, managers and guards and supervisors as de-
fined in the Act and all other bakery/café employees.
NOTICE TO SHOW CAUSE
As noted above, 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. 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 December 26, 2014, to conform
with the current state of the evidence.
2. The Respondent’s answer to the amended complaint
is due on or before January 9, 2015.
NOTICE IS HEREBY GIVEN that cause be shown, in writ-
ing, on or before January 30, 2015 (with affidavit of ser-
vice 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.