Summary of NLRB Decisions for Week of May 26 - 30, 2025

The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB.  Inquiries should be directed to the Office of the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

No Published Decisions Issued.

***

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued.

C Cases

No Unpublished C Cases Issued.

***

Appellate Court Decisions

United Natural Foods, Inc., Board Nos. 19-CB-250856 and 19-CA-249264 (reported at 370 NLRB No. 127) (5th Cir. May 28, 2025).

In a published opinion that issued after remand from the Supreme Court, the Fifth Circuit again denied the petition for review.  After the Board prevailed in the prior review proceeding, the Employer petitioned for a writ of certiorari, which was pending when the Supreme Court issued Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024) (overruling Chevron U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 (1984)).  Shortly thereafter, and before passing on the merits of the petition, the Supreme Court issued an order granting the petition, vacating the judgment, and remanding the case to the Fifth Circuit for further consideration in light of Loper Bright.  United Natural Foods, Inc. v. NLRB, 144 S. Ct. 2708 (2024). 

The Fifth Circuit’s prior opinion contained three principal holdings: (1) the Court had jurisdiction over the petition for review, (2) the Board permissibly rendered its order denying the Employer’s request for special permission to appeal a February 2021 order dismissing a complaint that issued during the tenure of Acting General Counsel Peter Sung Ohr, and (3) the Employer’s challenge to the Acting General Counsel’s authority, based on the theory that his designation was invalid because the President had unlawfully removed the former General Counsel, was foreclosed by Exela Enterprise Solutions, Inc. v. NLRB, 32 F.4th 436 (5th Cir. 2022).  United Natural Foods, Inc. v. NLRB, 66 F.4th 536 (5th Cir. 2023) (Judges Higginbotham and Higginson; Judge Oldham, dissenting in part).

On remand, the same Fifth Circuit panel ordered the parties to file supplemental letter briefs and reply briefs addressing the applicability of Loper Bright.  In its opinion, the Court held that two issues it previously decided—jurisdiction and the removal challenge—were unaffected by the overruling of Chevron and the Court’s analysis would remain unchanged.  On the issue it substantively reconsidered, the Court held that “the Board acted within its statutory authority under the NLRA when it concluded that the Acting General Counsel’s decision [to dismiss the complaint] was an unreviewable act of prosecutorial discretion.” 

In determining the standard of review to apply to that issue, the Court quoted Loper Bright’s statements that courts must “exercise [our] independent judgment in deciding whether an agency has acted within its statutory authority,” and that “[c]areful attention to the judgment of the Executive Branch may help inform that inquiry.”  The Court also noted Loper Bright’s instruction that “when a particular statute delegates authority to an agency consistent with constitutional limits, [we] must respect the delegation.”  The court explained that “whereas previously” it could “defer to NLRB’s reasonable interpretation,” it must now instead “exercise [its] independent judgment in deciding whether the NLRB has acted within its statutory authority.” 

The Court additionally noted that Loper Bright made clear that by overturning Chevron, it did “not call into question prior cases that relied on the Chevron framework,” and that those cases are “still subject to statutory stare decisis despite our change in interpretive methodology.” It then found that the key Supreme Court case that it previously relied on for a “permissible interpretation” of the parameters of the General Counsel’s prosecutorial discretion, NLRB v. United Food & Com. Workers Union, Local 23, AFL-CIO, 484 U.S. 112 (1987), remained good law, despite its reliance on Chevron, but was “no longer dispositive.”  

The Court’s opinion is here.

***

Administrative Law Judge Decisions

Felton Institute, Inc. (32–CA–298516; JD(SF)–12–25) San Francisco, CA.  Administrative Law Judge Eleanor Laws issued her decision on May 23, 2025.  Charge filed by Service Employees International Union, Local 1021.

***

To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.