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Hospital of Barstow, Inc. v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

July 31, 2018

Hospital of Barstow, Inc., doing business as Barstow Community Hospital, Petitioner
National Labor Relations Board, Respondent California Nurses Association/National Nurses Organizing Committee, Intervenor

          Argued February 13, 2018

          On 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.

          Nicole Daro argued the cause and filed the brief for intervenor.

          Before: Griffith, Srinivasan and Wilkins, Circuit Judges.


          Srinivasan, Circuit Judge.

         This 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?

         In 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.

         In our 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).

         On 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.



         The 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." Id.

         The 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 decision undisturbed.

         As of 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 authority.


         Hospital 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 ...

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