United States Court of Appeals, District of Columbia Circuit
Hospital of Barstow, Inc., doing business as Barstow Community Hospital, Petitioner
National Labor Relations Board, Respondent California Nurses Association/National Nurses Organizing Committee, Intervenor
February 13, 2018
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
Kaitlin A. Kaseta argued the cause for petitioner. With her
on the briefs was Bryan T. Carmody.
Barbara A. Sheehy, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
Richard F. Griffin, Jr., General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, and Jill A. Griffin, Attorney.
Daro argued the cause and filed the brief for intervenor.
Before: Griffith, Srinivasan and Wilkins, Circuit Judges.
Srinivasan, Circuit Judge.
case comes to this court a second time. It grows out of a
decision of the National Labor Relations Board holding that
Hospital of Barstow refused to bargain in good faith with a
union representing nurses at the facility. The main issue
concerns whether a Regional Director of the Board retained
authority to certify the union during a period in which the
Board itself lacked power to take action because its
membership had slipped below the statutorily mandated quorum.
If the Board itself had lost power to take any action, could
a Regional Director, exercising Board-delegated authority,
conduct a representation election and certify the results?
previous decisions, we held that, notwithstanding the lapse
of a Board quorum, Regional Directors retain authority to
direct elections administered under a so-called stipulated
election agreement-an agreement under which the employer and
union agree to have a Regional Director conduct the election,
but subject to the possibility of Board review if a party
opts to seek it. See UC Health v. NLRB, 803 F.3d 669
(D.C. Cir. 2015); SSC Mystic Operating Co. v. NLRB,
801 F.3d 302 (D.C. Cir. 2015). This case involves a so-called
consent election agreement, not a stipulated election
agreement. In a consent election agreement, the parties agree
in advance that the Regional Director's decisions will be
final and unreviewable.
previous decisions concerning stipulated election agreements,
we deferred to the Board's interpretation of the
NLRA's quorum provision in upholding the authority of
Regional Directors to conduct and certify elections when the
Board lacks a quorum. When we first considered this case, the
Board had yet to address whether it had the same
understanding of the quorum provision in the context of a
consent election agreement. We remanded the case to enable
the Board to consider that question. Hosp. of Barstow,
Inc. v. NLRB, 820 F.3d 440 (D.C. Cir. 2016).
remand, the Board saw no salient difference between consent
election agreements and stipulated election agreements. It
thus interpreted the NLRA's quorum provision to allow
Regional Directors to conduct representation elections under
a consent election agreement notwithstanding the lapse of a
Board quorum. As in our previous decisions, we again sustain
the Board's understanding of the statute as reasonable.
We also reject the hospital's various challenges to the
Board's finding of unfair labor practices and to the
remedies imposed by the Board.
National Labor Relations Act provides that the Board shall
consist of five members, 29 U.S.C. § 153(a), and allows
the Board to delegate its powers to panels made up of three
or more members, id. § 153(b). The Act
prescribes that "three members of the Board shall, at
all times, constitute a quorum of the Board."
same NLRA provision authorizes the Board to delegate to
Regional Directors the authority to conduct representation
elections, rule on the parties' objections to the
election procedures, and certify the results. See
id. In 1961, the Board delegated its authority over
representation proceedings to Regional Directors, who have
conducted representation elections since that time.
See Delegation of Authority, 26 Fed. Reg. 3911-02
(May 4, 1961). The Board retains authority to review any
action of a Regional Director upon the filing of a request by
an interested party. But parties also can waive their right
to request Board review. See 29 C.F.R. §
102.67(g). The result is that a Regional Director's
action is final if the parties elect not to seek Board review
or if the Board denies review and leaves the underlying
January 3, 2012, the terms of three Board members had expired
and their seats remained vacant because the Senate did not
confirm the President's nominees. On January 4, 2012, the
President, asserting authority under the Recess Appointments
Clause, U.S. Const. art. II, § 2, cl. 3, appointed three
individuals to the Board. The Supreme Court, however, held
those recess appointments to be invalid. NLRB v. Noel
Canning, 134 S.Ct. 2550 (2014). On July 30, 2013, the
Senate confirmed two new nominees to the seats. During the
intervening period, the Board lacked a quorum. See
29 U.S.C. § 153(b). The Regional Directors nonetheless
continued to conduct representation elections and certify the
results pursuant to the Board's 1961 delegation of
of Barstow operates an acute-care facility in California. In
2012, the California Nurses Association/National Nurses
Organizing Committee (the Union) initiated an organizing
campaign to represent Barstow's nurses. On May 2, 2012,
during the time the Board lacked a quorum, Barstow and the
Union entered into a consent election agreement, under which
a Regional Director would conduct the ...