03/06/2025: Lack of Quorum Argument Rejected by Regional Director
An explanation of why the NLRB can still process representation petitions.
Marlene's Natural Foods and Deli, 19-RC-359513 (Regional Election Decision)
On January 31, 2025, United Food and Commercial Workers Local 367 filed a petition seeking to represent employees at Marlene's Natural Foods and Deli's Tacoma, Washington facility. The employer did not dispute the appropriateness of the proposed bargaining unit but argued that Regional Directors lack authority to process representation petitions when the National Labor Relations Board (NLRB) lacks a quorum of three members.
The case arose after President Trump removed Board Member Gwynne Wilcox on January 27, 2025, reducing the number of Senate-confirmed Board members from three to two. Under Supreme Court precedent, the Board cannot issue decisions without a quorum of at least three members.
Regional Director Ronald K. Hooks rejected the employer's argument, explaining that the Board delegated authority to Regional Directors to process representation cases in 1961, and this delegated authority remains valid even when the Board lacks a quorum. The Regional Director cited numerous court decisions supporting this position, including Supreme Court precedent that explicitly distinguishes between the Board's inability to act without a quorum and the continuing validity of prior delegations to Regional Directors and the General Counsel.
The Regional Director also noted that in 2017, the Board adopted regulations specifically clarifying that representation cases may continue to be processed by Regional Directors during periods when the Board lacks a quorum. He dismissed the employer's reference to Loper Bright Enterprises v. Raimondo as inapplicable because it only addresses judicial standards of review.
Based on this analysis, the Regional Director determined that he retained authority to process the representation petition and directed an election to be held on February 21, 2024, at the employer's Tacoma facility.
Significant Cases Cited
New Process Steel, LP v. NLRB, 560 U.S. 674 (2010): Established that the NLRB must maintain a three-member quorum to issue decisions.
Brentwood Assisted Living Community, 355 NLRB No. 149 (2010): Affirmed that Regional Directors can properly process representation proceedings despite the Board lacking a quorum.
Magnesium Casting Co. v. NLRB, 401 U.S. 137 (1971): Upheld the Board's delegation of authority to Regional Directors for representation cases.
UC Health v. NLRB, 803 F.3d 669 (DC Cir. 2015): Confirmed that Regional Directors' delegated authority continues when the Board lacks a quorum.
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Distinguished as inapplicable to the question of Regional Directors' delegated authority.
Auto-Chlor System of Washington, Inc., 19-RC-357182 (Regional Election Decision)
In December 2024, the International Brotherhood of Electrical Workers, Local 46 (the "Union") filed an election petition seeking to represent employees at Auto-Chlor System of Washington's Seattle facility. The Union amended its petition to seek representation of a unit limited to sales service representatives. Auto-Chlor contested the appropriateness of the requested unit, arguing that all job classifications should be included in a "wall-to-wall" unit due to shared community of interest.
The parties later stipulated that any appropriate unit would include sales service representatives, installers, route supervisors, and rebuilders. This left four disputed classifications: production employees, office administrator, outside sales representative, and production supervisor.
Decision
Regional Director Ronald K. Hooks determined that:
The office administrator and outside sales representative should be included in the unit
The production employees and production supervisor should be excluded
The Regional Director applied community of interest analysis to determine whether the disputed classifications shared sufficient interests with the stipulated unit to warrant inclusion.
Community of Interest Analysis
The Regional Director examined six factors:
1. Departmental Organization
The production employees had a clear organizational divide from other classifications due to their work with chemicals and formed a discrete, identifiable unit within the branch. The office administrator and outside sales representative were not part of such a distinct unit and worked closely with sales service representatives.
2. Skills, Training, and Job Functions
Production employees had different job functions with minimal overlap with other classifications. They exclusively mixed chemicals, bottled and packaged products, and did not work with dishwasher equipment. The office administrator and outside sales representative had significant functional overlap with sales service representatives.
3. Functional Integration and Contact
While there was functional integration between all classifications (production employees make products that sales representatives sell), there was minimal direct contact between production employees and the stipulated unit. The office administrator and outside sales representative had regular contact with sales service representatives.
4. Interchange
Despite management testimony about potential interchange between positions, no concrete examples were provided of employees moving between classifications. The Regional Director found no evidence of actual interchange.
5. Terms and Conditions of Employment
All employees received the same benefits and were governed by the same employee handbook. Both sales service representatives and outside sales representatives could earn commissions, though under different structures. Most positions were paid hourly except the outside sales representative who was salaried.
6. Supervision
All employees shared the same supervisor with authority to hire, fire, and discipline, though day-to-day work was overseen by different leads.
Significant Cases Cited:
Overnite Trans. Co., 322 NLRB 723 (1996): Established that the Act requires only an appropriate unit, not the most appropriate unit.
NLRB v. Action Automotive, 469 U.S. 490 (1985): Articulated the "community of interest" standard for appropriate bargaining units.
United Operations, Inc., 338 NLRB 123 (2002): Listed factors the Board considers in determining community of interest.
Seaboard Marina, 327 NLRB 556 (1999): Established that the Board will not approve "fractured units" that are too narrow in scope or lack rational basis.
Hilton Hotel Corp., 287 NLRB 359 (1987): Held that frequent interchange may suggest blurred departmental lines and a fluid workforce.
Recovery Cafe, 19-RC-356493 (Regional Election Decision)
On February 19, 2025, Regional Director Ronald K. Hooks of NLRB Region 19 issued a Decision and Direction of Election in response to a representation petition filed by United Food and Commercial Workers Local 3000 seeking to represent employees at Recovery Café.
Recovery Café is a non-profit corporation providing social services and mental health services in Seattle, Washington. The organization consists of two café locations (SLU and SODO facilities) that provide direct services to individuals, plus a separate "Recovery Café Network" program that helps other communities start their own recovery cafés.
The petitioned-for unit included approximately 16 employees across both café locations and the Network program. The employer initially contested the unit's appropriateness based on a lack of community of interest between the SLU and SODO facilities, but later shifted to argue that Recovery Café employees and Recovery Café Network employees did not share a community of interest. The employer also contended that certain positions (program manager, finance manager, and office and facilities manager) should be excluded as confidential employees, and that the program manager should be excluded as a supervisor.
Community of Interest Analysis
The Regional Director analyzed several factors to determine whether café employees and Network employees shared a community of interest:
Departmental Organization: The evidence showed the petitioned-for unit did not conform to the employer's departmental organization. Network employees have different organizational priorities and report to different directors than café employees.
Skills and Duties: Network employees require bachelor's degrees and work remotely, while café employees generally have no educational requirements and work in-person. Their day-to-day tasks differ significantly.
Functional Integration, Contact, and Interchange: There was minimal evidence of interchange between café and Network employees. While Network employees occasionally participate in immersion visits at the cafés, these occur only 2-4 times per year.
Terms and Conditions of Employment: All employees are hourly, receive the same benefits, and are subject to the same work rules and policies.
Supervision: There is generally separate supervision for café and Network employees, with limited overlap.
Based on this analysis, the Regional Director concluded that Network employees do not share a community of interest with café employees, and an appropriate unit would exclude the Network classifications.
Supervisory and Confidential Status Analysis
The Regional Director then analyzed whether the program manager was a supervisor under Section 2(11) of the Act. The evidence did not establish that the program manager exercised independent judgment to hire, discipline, assign work, or responsibly direct other employees.
Regarding confidential status, the Regional Director found that while the program manager, office and facilities manager, and finance manager all had access to confidential information, the employer failed to establish a labor-nexus showing that they formulated, determined, or effectuated labor policy. Having access to information is not sufficient to establish confidential status under the labor-nexus standard.
Significant Cases Cited
NLRB v. Action Automotive, 469 U.S. 490 (1985): Established that community of interest is the primary factor in determining appropriate bargaining units.
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined "independent judgment" in the context of supervisory status under Section 2(11) of the Act.
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Clarified the three requirements for supervisory status under Section 2(11) of the Act.
NLRB v. Hendricks County Rural Electric Corp., 454 U.S. 170 (1981): Established the "labor-nexus" standard for determining confidential employee status.
Overnite Trans. Co., 322 NLRB 723 (1996): Held that a petitioner need only seek representation in an appropriate unit, not the most appropriate unit possible.