Nat'l Labor Relations Bd. v. Bluefield Hosp. Co.

• Decision Date: 06 May 2016
• Docket Number: No. 15–1203.,15–1203.
• Citation: 821 F.3d 534
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, National Nurses Organizing Committee, Intervenor, v. BLUEFIELD HOSPITAL CO., LLC, d/b/a Bluefield Regional Medical Center; Greenbrier VMC, d/b/a Greenbrier Valley Medical Center, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

821 F.3d 534

NATIONAL LABOR RELATIONS BOARD, PetitionerNational Nurses Organizing Committee, Intervenor

v.BLUEFIELD HOSPITAL CO., LLC, d/b/a Bluefield Regional Medical Center; Greenbrier VMC, d/b/a Greenbrier Valley Medical Center, Respondents.

No. 15–1203.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 26, 2016.

Decided: May 6, 2016.

ARGUED: Micah Prieb Stoltzfus Jost, National Labor Relations Board, Washington, D.C., for Petitioner. Kaitlin Ann Kaseta, Charleston, South Carolina, for Respondents. ON BRIEF: Jill Ann Griffin, Supervisory Attorney, Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, National Labor Relations Board, Washington, D.C., for Petitioner. Bryan T. Carmody, Carmody & Carmody LLP, Glastonbury, Connecticut, for Respondents.

Before AGEE and THACKER, Circuit Judges, and HENRY E. HUDSON, United States District Judge for the Eastern District of Virginia, sitting by designation.

Application for enforcement granted by published opinion. Judge AGEE wrote the opinion, in which Judge THACKER and Judge HUDSON joined.

AGEE, Circuit Judge:

This case involves a labor dispute between two West Virginia hospitals, Bluefield Regional Medical Center and Greenbrier Valley Medical Center (collectively, the “Hospitals”), and a group of their employees. After registered nurses employed at the Hospitals elected the National Nurses Organizing Committee (the “Union”) as their bargaining representative, the Hospitals challenged the election results and refused the Union's requests to bargain. The National Labor Relations Board (the “Board”) issued a final decision concluding the Hospitals violated the National Labor Relations Act (the “Act”), 29 U.S.C. § 151 et seq., by refusing to bargain with the Union. The Board then brought an application for enforcement before this Court, which the Hospitals oppose. For the reasons set forth below, we grant the Board's application for enforcement.

I.

A.

To place the issues in context, we briefly explain some of the Board's functions and the authority the Act grants the Board. As a quasi-judicial body, the Board is responsible for determining whether certain conduct constitutes an unfair labor practice in violation of the Act. 29 U.S.C. §§ 158, 160. In addition, the Board has principal authority to conduct representation proceedings, in which employees may select a collective bargaining representative. Id. § 159(b), (c). The Act expressly permits the Board to delegate to its Regional Directors authority to oversee representation elections and to certify election results. Id. § 153(b). The Board delegated that general authority to its Regional Directors in 1961, and they have been administering and certifying results of representation elections since that time. 26 Fed.Reg. 3911 (May 4, 1961).

Although the Regional Directors have delegated authority to oversee representation elections, the Board retains plenary authority to “review any action of a regional director” at the objection of an interested person. 29 U.S.C. § 153(b). However, the parties may waive that right and agree to give the Regional Director's decision finality. See 29 C.F.R. § 102.62.¹ In the absence of such an agreement, a Regional Director's actions only become final if the parties decline to seek Board review or if the Board, upon review, does not alter the Regional Director's decision. 29 U.S.C. § 153(b).²

Section 3(a) of the Act requires that the Board be composed of five members appointed by the President upon advice and consent of the Senate. Id. § 153(a). “[T]hree members of the Board shall, at all times, constitute a quorum of the Board[.]” Id. § 153(b).

The Act permits the Board to delegate “any or all of the powers which it may itself exercise” to panels made up of three or more of its members, with two panel members constituting a panel quorum. Id. § 153(b). This delegation of cases across various panels is intended to allow the Board to process labor disputes more efficiently. The panel delegation survives the expiration of up to two of the five Board members' terms, such that the Board may continue to adjudicate unfair labor practice disputes pending appointment of new members so long as the three-member Board quorum requirement is met. Id. § 153(b).

As of January 3, 2012, the terms of three of the Board's five members had expired. Asserting authority under the Recess Appointments Clause, U.S. Const. art. II, § 2, cl. 3, the President appointed three persons to the Board to fill these vacancies on January 4, 2012, during a brief recess between the Senate's twice-weekly pro forma sessions. In NLRB v. Noel Canning, –––U.S. ––––, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), the Supreme Court held those appointments unconstitutional as not within the President's powers. Id. at 2578. These Board seats remained vacant until August 5, 2013 when the Senate confirmed new Board members for the seats. By reason of the three vacancies, the Board was composed of only two members from January 3, 2012 through August 5, 2013 and thus lacked a quorum as required by the Act. During this period, Regional Directors continued to oversee representation elections and certify election results pursuant to the 1961 delegation of authority from the Board.

B.

The Hospitals provide inpatient and outpatient care in Bluefield and Ronceverte, West Virginia. In August 2012, while the Board lacked a quorum, the Union filed two petitions with the Board seeking to become the bargaining entity for registered nurses at the Hospitals.³ The Hospitals and the Union entered into Consent Election Agreements (the “Agreements”) that, among other things, identified the proposed bargaining unit and provided that the Regional Director, Claude Harrell, would oversee secret-ballot elections in accordance with the Board's regulations.⁴ Under the Agreements and corresponding regulations, the parties were required to file objections to the results of the elections with the Regional Director no later than seven days after the ballots were tallied. The Agreements specified that “[t]he method of investigation of objections and challenge[s], including whether to hold a hearing, shall be determined by the Regional Director, whose decision shall be final.” J.A. 314. The Regional Director also retained the authority to certify the Union as the representative of the Hospitals' registered nurses, pending the outcome of the elections.

The Regional Director held a representation election at each hospital on August 29 and 30, 2012, and the Union prevailed in both elections. In response, the Hospitals filed several objections to the election results. The Regional Director issued notices of hearings for the objections and gave written notification to the Hospitals that the Board's rules and regulations required the Hospitals to submit evidence in support of their objections within specific time limits. See 29 C.F.R. § 102.69. The Hospitals did not produce any evidence in support of their objections, nor did they seek an extension of time to do so. On September 24, 2012, the Regional Director overruled the Hospitals' objections and withdrew the hearing notices, actions that amounted to final rulings on the objections under the Agreements. The Regional Director certified the Union as the registered nurses' collective bargaining representative the next day. See J.A. 38–41.

The Union then made several requests to bargain with the Hospitals on behalf of the registered nurses. The Hospitals refused to bargain, and the Union filed unfair labor practice charges with the Board. On November 29, 2012, the Regional Director issued a consolidated complaint on behalf of the Acting General Counsel of the Board, Lafe Solomon, which alleged that the Hospitals' refusal to bargain with the Union violated Sections 8(a)(1) and (5) of the Act. See 29 U.S.C. § 158(a)(1), (a)(5). The Hospitals answered by admitting their refusal to bargain, but claiming an oral agreement between the Union and the Hospitals required arbitration of election disputes and precluded the Regional Director from overruling their election objections.⁵

While the unfair labor practice proceedings were ongoing, the United States Court of Appeals for the District of Columbia Circuit issued its decision in Noel Canning v. NLRB, 705 F.3d 490 (D.C.Cir.2013), aff'd on other grounds, ––– U.S. ––––, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), holding that the President's recess appointment of the three Board members on January 4, 2012 was unlawful and that the Board as then constituted lacked a quorum. On February 8, 2013, the Hospitals filed an amended answer citing the Noel Canning decision and arguing under that case the actions of the Regional Director in certifying the Union were invalid because the certifications issued during the time in which the Board lacked a quorum. The Board's acting general counsel moved for summary judgment.

Upon confirmation of new members by the U.S. Senate, the Board regained a quorum on August 5, 2013. Almost a year later, the Supreme Court issued its decision in NLRB v. Noel Canning, ––– U.S. ––––, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), affirming, albeit on different grounds, the District of Columbia Circuit's holding that the President's recess appointments were unconstitutional. The Hospitals then raised the Supreme Court's Noel Canning decision, along with various other affirmative defenses, in a third amended answer to the consolidated complaint, arguing specifically that the Regional Director lacked authority to approve the Agreements or issue the election certifications when the Board lacked a quorum. Tangentially, the Hospitals contended that the Regional Director's appointment was invalid because the Board's Acting General Counsel was not validly holding his position at the time he appointed the Regional Director.

On December 16, 2014, the Board granted...