Bloomingdales, Inc.

BLOOMINGDALES, INC. 1015 359 NLRB No. 113 Bloomingdale’s, Inc. and Fatemeh Johnmohammadi. Case 31–CA–071281 April 30, 2013 ORDER DENYING MOTION BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK Upon a charge and amended charges filed by Fatemeh Johnmohammadi, an individual, the Acting General Counsel issued a complaint in this proceeding on Octo- ber 31, 2012, against Bloomingdale’s Inc., the Respond- ent, alleging that it violated Section 8(a)(1) of the Na- tional Labor Relations Act. The Respondent moves to dismiss the complaint on the ground that it is barred by the National Labor Relations Board’s alleged lack of a quorum under Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). Specifically, the Respondent contends that under the Act, all actions of the Board, including those of its appointees, agents, and delegatees, are void ab initio when the Board acts in the absence of three validly appointed members. We reject these arguments. We recognize that the United States Court of Appeals for the District of Columbia Circuit has concluded that the President’s recess appointments were not valid. See Noel Canning v. NLRB, supra. However, as the court itself acknowledged, its decision conflicts with rulings of at least three other courts of appeals. See Evans v. Ste- phens, 387 F.3d 1220 (11th Cir. 2004), cert. denied 544 U.S. 942 (2005); U.S. v. Woodley, 751 F.2d 1008 (9th Cir. 1985); U.S. v. Allocco, 305 F.2d 704 (2d Cir. 1962). This question remains in litigation, and pending a defini- tive resolution, the Board is charged to fulfill its respon- sibilities under the Act. See Belgrove Post Acute Care Center, 359 NLRB 633, 633 fn. 1 (2013). Moreover, to the extent that the Respondent suggests that the Acting General Counsel lacks the power to in- vestigate and prosecute charges of unfair labor practices in the absence of a Board quorum, the Respondent’s ar- gument is meritless. Under the NLRA, the General Counsel is an independent officer appointed by the Pres- ident and confirmed by the Senate, and staff engaged in the investigation and prosecution of unfair labor practic- es are directly accountable to the General Counsel. See 29 U.S.C. §153(d); NLRB v. Food & Commercial Work- ers Local 23, 484 U.S. 112, 127–128 (1987); NLRB v. FLRA, 613 F.3d 275, 278 (D.C. Cir. 2010). The authori- ty of the General Counsel to investigate unfair labor practice charges and prosecute complaints derives not from any “power delegated” by the Board, but rather directly from the language of the NLRA. Accordingly, we deny the Respondent’s motion to dismiss the complaint due to the National Labor Rela- tions Board’s lack of a proper quorum. The Respondent has failed to establish that it is entitled to judgment as a matter of law.