05/30/2025: Fifth Circuit Affirms GC's Pre-Hearing Prosecutorial Discretion
A union's petition for a two-facility unit was rejected as too narrow.
United Natural Foods v. NLRB, 21-60532 (Fifth Circuit)
This Fifth Circuit Court of Appeals decision addresses whether the NLRB's Acting General Counsel has prosecutorial discretion to withdraw an unfair labor practice complaint after an aggrieved party has filed a motion for summary judgment. The case was remanded by the Supreme Court for reconsideration in light of Loper Bright, which overruled Chevron deference.
Factual Background
United Natural Foods Inc. (UNFI) filed an unfair labor practice charge against Teamsters Local 117 and Local 313 in October 2019. The NLRB's Regional Director issued a Consolidated Complaint in July 2020 under then-General Counsel Peter Robb. After President Biden removed Robb and designated Peter Sung Ohr as Acting General Counsel in January 2021, the unions requested postponement of the scheduled hearing and asked Ohr to reconsider the complaint.
UNFI filed a motion for summary judgment against the unions in February 2021. Before the Board ruled on this motion, the Regional Director, acting on behalf of Acting General Counsel Ohr, withdrew the complaint against the unions, citing prosecutorial discretion. The Board denied UNFI's request for special permission to appeal this withdrawal, concluding that the Acting General Counsel's decision was an unreviewable act of prosecutorial discretion.
Jurisdictional Analysis
The court first addressed NLRB's challenge to jurisdiction. The court determined it had jurisdiction under Section 160(f) of the NLRA, which authorizes review of "final orders of the Board." The court applied the Bennett test for finality, finding that the Board's order both consummated the Board's decision-making process and had direct legal consequences by allowing the dismissal to stand and rendering UNFI's summary judgment motion moot.
Substantive Legal Analysis
The core issue concerned whether the Acting General Counsel retained prosecutorial discretion to withdraw the complaint after UNFI filed its summary judgment motion. UNFI argued that once it filed the motion, the decision became adjudicatory rather than prosecutorial, requiring Board action rather than unilateral General Counsel discretion.
The court analyzed this question under the framework established in UFCW, which distinguished between prosecutorial determinations (made solely by the General Counsel and unreviewable) and adjudicatory decisions (made by the Board and subject to judicial review). The Supreme Court in UFCW held that "until the hearing begins, settlement or dismissal determinations are prosecutorial."
Following Loper Bright's elimination of Chevron deference, the court exercised independent judgment rather than deferring to the agency's interpretation. However, the court concluded that the Board acted within its statutory authority. The court reasoned that the NLRA's text grants the General Counsel "final authority" over prosecution of complaints, and the statutory division of responsibilities supports the conclusion that this authority continues until the Board begins adjudication through a hearing.
Crucially, the Board had taken no action on UNFI's summary judgment motion—it had neither issued a Notice to Show Cause nor transferred the case to itself. The court rejected UNFI's argument that filing a summary judgment motion alone divested the General Counsel of prosecutorial authority, noting this would allow private parties to unilaterally limit the General Counsel's statutory authority.
Federal Rules of Civil Procedure Analysis
The court extensively addressed arguments about applying Federal Rule of Civil Procedure 41(a)(1)(A)(i), which prevents plaintiffs from dismissing cases after defendants file summary judgment motions. The court found this analogy inappropriate for several reasons: the Supreme Court in UFCW cautioned against analogizing the General Counsel's role to other contexts; applying Rule 41 would conflict with NLRB regulation 102.18, which permits withdrawal "before the hearing"; and such application would undermine the General Counsel's statutory prosecutorial authority.
The court also noted that even if Rule 41 applied, UNFI was not an "opposing party" to NLRB but rather an aggrieved party seeking prosecution of the unions.
Dissenting Opinion
Judge Oldham filed a dissenting opinion criticizing the majority for reaching the same result as before Loper Bright despite the Supreme Court's grant, vacation, and remand for reconsideration. He argued that the majority's approach undermined Loper Bright's mandate for independent judicial review and warned against courts continuing to effectively defer to agencies under the guise of independent analysis.
The court denied both NLRB's motion to dismiss for lack of jurisdiction and UNFI's petition for review.
Significant Cases Cited
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Overruled Chevron deference and required courts to exercise independent judgment in determining whether agencies have acted within their statutory authority.
NLRB v. United Food & Commercial Workers Union, Local 23 (UFCW), 484 U.S. 112 (1987): Established the framework distinguishing between prosecutorial determinations by the General Counsel and adjudicatory decisions by the Board, holding that settlement or dismissal determinations are prosecutorial until hearings begin.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984): Previously required courts to defer to reasonable agency interpretations of ambiguous statutes, but was overruled by Loper Bright.
Bennett v. Spear, 520 U.S. 154 (1997): Established the two-part test for determining whether agency action is "final" for purposes of judicial review under the Administrative Procedure Act.
Boilermakers Union Local 6 v. NLRB, 872 F.2d 331 (9th Cir. 1989): Analogous case where the Ninth Circuit reviewed a Board order concluding that the General Counsel had prosecutorial discretion to withdraw a complaint and ultimately denied review, finding the decision was unreviewable prosecutorial discretion.
Breakthru Beverage Missouri, LLC, 14-RC-364141 (Regional Election Decision)
This National Labor Relations Board Regional Director decision addresses a representation petition filed by Liquor and Wine Sales Representatives Union, Local 3, seeking to represent employees at only two of Breakthru Beverage Missouri, LLC's five Missouri facilities - St. Louis and Cape Girardeau - while excluding similar workers at Kansas City, Columbia, and Springfield locations. The petition was dismissed because the proposed unit was found inappropriate under NLRB standards governing both multilocation bargaining units and employee classification inclusion.
Background and Operations
Breakthru Beverage Missouri operates as an alcoholic beverage distributor throughout Missouri from warehouses in St. Louis and Kansas City, with additional offices in Columbia, Cape Girardeau, and Springfield. The company organizes operations into East Region (St. Louis and Cape Girardeau) and West Region (Kansas City, Springfield, and Columbia) for personnel management. The petitioned-for unit included approximately 266 employees in sales positions: Sales Representatives, Sales Merchandisers, Key Account Managers, Account Development Specialists, Sales Development Representatives, and Category Managers.
Legal Framework
The Regional Director applied two NLRB standards: the American Steel Construction test for determining whether Category Managers should be included based on community of interest factors, and the Exemplar multilocation standard examining employee skills, functional integration, geographic proximity, centralized management, bargaining history, and union organizing extent.
Category Manager Exclusion
Category Managers were excluded from any appropriate unit due to fundamentally different job functions and lack of community of interest with other employees. They perform data analysis and create product placement recommendations for entire store chains, report through separate corporate command structure to Chicago headquarters, and have HR functions handled by corporate rather than Missouri personnel.
Multilocation Analysis
The Regional Director found employees at St. Louis and Cape Girardeau locations do not share a community of interest distinct from excluded locations. Key factors included uniform job descriptions, training, compensation, and benefits across all Missouri locations; centralized HR functions; statewide sales goals; regular employee transfers between regions (eleven since 2011); and field-based work limiting significance of office assignments. One employee testified being unaware of regional divisions until the unionization effort.
Functional Integration
The decision emphasized integrated sales operations across all locations, with different job classifications working together toward common statewide goals. Sales Representatives generate orders, Sales Merchandisers handle displays, Account Development Specialists expand offerings, and Key Account Managers serve large chains - all contributing to shared supplier and product-specific objectives regardless of location.
Conclusion
Applying United Operations community of interest factors and the Exemplar multilocation test, the Regional Director concluded the proposed unit demonstrated an overwhelming community of interest among all employees in included classifications across all Missouri locations, making geographic limitation inappropriate under NLRB standards.
Significant Cases Cited
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Established the three-prong test for appropriate bargaining units requiring shared community of interest, group identifiability, and sufficient distinction from excluded employees.
Exemplar, Inc., 363 NLRB 1500 (2016): Set forth the standard for multilocation bargaining unit analysis examining employee skills, functional integration, geographic proximity, centralized management, and union organizing.
United Operations, Inc., 338 NLRB 123 (2002): Established traditional community of interest factors for evaluating whether employee groups share sufficient common interests for bargaining unit inclusion.
Laboratory Corp. of America Holdings, 341 NLRB 1079 (2004): Held multilocation units inappropriate if petitioned-for employees lack community of interest distinct from excluded location employees.
Boeing Co., 337 NLRB 152 (2001): Established that unit appropriateness inquiry ends once a petitioned-for unit is found appropriate without considering other potential units.