Argued: January 26, 2016
On Application for Enforcement of an Order of the National Labor Relations Board. (10-CA-093042)
Micah Prieb Stoltzfus Jost, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner.
Kaitlin Ann Kaseta, Charleston, South Carolina, for Respondents.
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.
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.
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.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).
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, 134 S.Ct. 2550 (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.
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. 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. 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 ...