4th Cir. Rejects Challenges to NLRB Certifications

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By Lawrence E. Dubé

May 6 — Two West Virginia hospitals failed to show the National Labor Relations Board acted improperly in ordering them to bargain with a labor union elected by hospital nurses, the U.S. Court of Appeals for the Fourth Circuit held.

Bluefield Hospital Co. and Greenbrier VMC argued that certifications of the National Nurses Organizing Committee were invalid because an NLRB regional director's authority was affected by the board's loss of a quorum in 2012 and 2013. They also argued the director's appointment was invalid because the agency acting general counsel's authority had lapsed at the time of the regional office appointment.

Writing for the court May 6, Judge G. Steven Agee rejected the challenges, deferring to the NLRB's finding that the regional director's appointment was proper and concluding a lapse in the authority of the acting general counsel's lapsed “makes no difference.”

Hospitals Disputing Union Certifications

According to the decision and NLRB records, the union filed NLRB election petitions in 2012, seeking to represent nurses at Bluefield Regional Medical Center and Greenbrier Valley Medical Center.

The hospitals and the union signed consent agreements, approved by an NLRB regional director, providing for secret ballot elections to resolve the questions of union representation.

The union prevailed 79-49 at Bluefield, and 59-45 at Greenbrier, but the hospitals refused to recognize the union or negotiate with it, and the NLRB decided in 2014 that they had committed an unfair labor practice (361 N.L.R.B. No. 154, 202 LRRM 1699 (2014)). The board later filed a petition in the Fourth Circuit for enforcement of its order requiring the hospitals to bargain with the union.

Argument Over NLRB Loss of Quorum

In the appellate court proceeding, the hospitals argued that the five-seat NLRB lacked a required three-member quorum from January 2012 until August 2013, and the regional director's actions in 2012 were invalid,

However, the NLRB had earlier approved delegations of its authority in representation cases to regional directors.

Deferring to the board's conclusion that such a delegation survived the loss of the board quorum, Agee rejected the hospitals' argument that the absence of a quorum deprived the regional director of authority to act.

Solomon Appointment Not in Issue

The appeals court also rejected the argument that the regional director's authority was affected by a lapse in Acting General Counsel Lafe E. Solomon's authority under the Federal Vacancies Reform Act after he was nominated for a full term as general counsel in 2013.

Stating it is the board, rather than the general counsel, that has “final authority to appoint a Regional Director,” the court said the regional director was duly appointed by the board and the loss of the acting general counsel's authority wasn't in issue.

The court enforced the order for the hospitals to recognize and bargain with the nurses' union.

Judges Stephanie D. Thacker and Henry E. Hudson joined in the opinion.

NLRB attorney Micah P. S. Jost in Washington argued for the board. Kaitlin A. Kaseta in Charleston, S.C., argued for Bluefield Hospital Co. and Greenbrier VMC.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com