NLRB Directors Retained Power While Board Lacked Quorum

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By Lawrence E. Dubé

July 18 — A regional director had authority to process a representation election case and certify a bargaining representative for a unit of hospital nurses despite the National Labor Relations Board's lack of a quorum during 2012 and 2013, a board panel found in a unanimous supplemental decision ( Hosp. of Barstow, Inc., 2016 BL 203602, 364 N.L.R.B. No. 52, 7/15/16 ).

The NLRB made its finding July 15 in a case the U.S. Court of Appeals for the District of Columbia Circuit remanded to the board in April (820 F.3d 440, 2016 BL 136359, 206 LRRM 3170 (D.C. Cir. 2016)). Hospital of Barstow Inc. in California challenged the board's certification and an unfair labor practice order, and the court said the board should have an opportunity to defend the certification.

Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran upheld the board's certification, finding the regional director had authority to act under a consent agreement signed by the hospital and the California Nurses Association/National Nurses Organizing Committee.

The hospital July 18 filed a petition for review (No. 16-1243) of the supplemental decision and order.

Case Back at NLRB on D.C. Circuit Remand

The hospital signed an NLRB consent election agreement with the CNA/NNOC in May 2012.

Pursuant to the agreement, a regional director supervised an election among the hospital's nurses, who voted for representation. The regional director certified the union.

CNA/NNOC filed unfair labor practice charges against the hospital, including allegations the employer refused to bargain with the union. The board found National Labor Relations Act violations. It refused to consider the hospital's argument that the election certification was improperly issued during the interval—January 2012 to August 2013—when the board lacked a quorum ( 361 N.L.R.B. No. 34, 200 LRRM 1702 (2014)).

Court Questioned Impact of Consent Agreement

The appeals court had rejected similar challenges in UC Health v. NLRB, 803 F.3d 669, 2015 BL 302560,204 LRRM 3289 (D.C. Cir. 2015), and SSC Mystic Operating Co. v. NLRB, 801 F.3d 302, 2015 BL 302561,204 LRRM 3277 (D.C. Cir. 2015).

Those two cases involved stipulated election agreements that allowed board review. The court had not considered consent agreements like the one Hospital of Barstow signed, which made the regional director's election-related actions final and unreviewable by the board.

Writing for the court in April, Judge Sri Srinivasan said the NLRB should be allowed to address the question. The board accepted a remand of the case.

Board Says Quorum Loss Had No Effect

Pearce, Hirozawa and McFerran wrote that Congress authorized the board to delegate representation case functions to its regional directors, and Section 102.182 of the board's rules and regulations allows the officials to process cases to certification “to the extent practicable.”

Stating the parties, not the NLRB, chose to make the regional director's decisions final, Pearce, Hirozawa and McFerran said the board's loss of a quorum in 2012 and 2013 did not limit the regional director's authority “to process the underlying representation proceeding, and to issue a certification pursuant to the parties' consent agreement.”

The board adopted and reissued its unfair labor practice order.

The hospital July 18 filed a petition for review (No. 16-1243) of the supplemental decision and order.

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

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