Whole Foods Bid to Repel Union Swipes at Hobbled Labor Board

Whole Foods’ challenge to a recent union election win at a Philadelphia store has the potential to further cripple the National Labor Relations Board while it lacks a functioning quorum.

The Amazon-owned grocery chain told the regional director overseeing the case that she can’t certify the union’s win. The company argued against the validity of an NLRB regulation that delegates the board’s authority to certify election results to RDs in the absence of a quorum.

The regional director will likely reject that argument, labor law observers said. But Whole Foods Market Group Inc. could then go to federal court to challenge the rule—and seek an order effectively paralyzing much of the agency’s ability to process worker attempts to unionize for as long as the NLRB lacks a quorum, they said.

President Donald Trump’s unprecedented termination of NLRB member Gwynne Wilcox dropped the board to two members, one shy of what it needs for a quorum. The US Supreme Court ruled in 2010’s New Process Steel, LP v. NLRB that the board cannot issue decisions without a quorum.

The NLRB will remain hobbled until Trump nominates at least one new member who goes on to win Senate confirmation, or Wilcox obtains a court order reinstating her via her lawsuit contesting the president’s apparently illegal move to fire her without cause.

No Quorum, No Review

In the wake of New Process Steel, the NLRB issued special rules for periods when it has no quorum. The agency later clarified that representation cases should be processed to certification via delegated authority to the regional directors.

Whole Foods argued last week that the delegation rule runs afoul of the National Labor Relations Act’s guarantee that parties can appeal RD decisions to the board.

The Supreme Court undermined the validity of rulings that support NLRB delegation when the justices overturned the Chevron doctrine last June in Loper Bright Enterprises v. Raimondo, the company said.

“The board’s reliance on such vulnerable case law cannot unequivocally override WFM’s objection on this basis,” Whole Foods said.

If the regional director rules against the company’s argument, it couldn’t get review of that decision because there’s no functioning NLRB to hear its appeal—thus illustrating the breakdown in board procedure that it premised its argument on.

Court Option

Although companies and unions can only appeal in federal court an NLRB order that comes out of an unfair labor practice case, Whole Foods could attempt challenging the board’s delegation regulation through a narrow exception created by the Supreme Court, said Anne Lofaso, a labor law professor at the University of Cincinnati.

The high court’s 1958 ruling in Leedom v. Kyne allows parties to file in district court to contest board orders that exceed its powers and run contrary to the NLRA, said Lofaso, a former appellate attorney at the NLRB.

A district court that agreed with Whole Foods could issue a nationwide injunction suspending the board’s delegation to the regional directors, said Mark Gaston Pearce, a former NLRB chair.

For example, when Justice Ketanji Brown Jackson was a district judge, she blocked parts of an election rule from taking effect, said Pearce, a visiting professor at Georgetown University.

Potential for Delay

The United Food and Commercial Workers International Union affiliate chosen by the Whole Foods workers in a Philadelphia store called the board’s challenge an attempt to delay bargaining.

“We fully expected Whole Foods to try to stall this process,” UFCW Local 1776 President Wendell Young said in a statement.

The company could delay the process by refusing to bargain, which would generate an unfair labor practice case that would serve as a vehicle to test certification in court, said Rebecca Dormon, a labor consultant at People Results. Such a case wouldn’t go to court until a functioning board ruled on it.

But the vast majority of employers agree to bargain after certification, said Dormon, a former NLRB assistant regional director.

Whole Foods’ attorney, Jeremy Brown of Epstein Becker & Green PC, didn’t respond to requests for comment.

The case is Whole Foods Market Group, Inc., N.L.R.B. Reg’l Dir., Case 04-RC-355267, objection filed 2/3/25.