UC Health v. National Labor Relations Board

803 F.3d 669, 419 U.S. App. D.C. 441, 204 L.R.R.M. (BNA) 3289, 2015 U.S. App. LEXIS 16628
CourtCourt of Appeals for the D.C. Circuit
DecidedSeptember 18, 2015
Docket14-1049, 14-1193
StatusPublished
Cited by22 cases

This text of 803 F.3d 669 (UC Health v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
UC Health v. National Labor Relations Board, 803 F.3d 669, 419 U.S. App. D.C. 441, 204 L.R.R.M. (BNA) 3289, 2015 U.S. App. LEXIS 16628 (D.C. Cir. 2015).

Opinions

Opinion for the Court filed by Circuit Judge GRIFFITH.

Concurring opinion filed by Senior Circuit Judge EDWARDS.

Dissenting opinion filed by Senior Circuit Judge SILBERMAN.

GRIFFITH, Circuit Judge:

In NLRB v. Noel Canning, — U.S. -, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), the Supreme Court determined that the National Labor Relations Board lacked authority to act during the time that three of its five members held office via appointments that violated the Recess Appointments Clause. This petition for review asks whether a Regional Director of the Board had authority to conduct a union election and certify its result during that same time. We conclude that the Regional Director maintained his authority and therefore deny the petition for review.

I

A

Section 3(a) of the National Labor Relations Act (NLRA) calls for a National Labor Relations Board made up of five members who are appointed by the President with the advice and consent of the Senate. 29 U.S.C. § 153(a). The Board has two main functions under the NLRA. Its quasi-judicial function involves deciding whether particular conduct violates the provisions of the Act that bar unfair labor practices. Id. §§ 158, 160. The Board also has the primary responsibility for directing and [671]*671holding representation elections by which employees may choose to designate representatives for purposes of collective bargaining. Id. § 159(b), (c). Representation proceedings differ from unfair labor practice proceedings in that they may only be reviewed in a court of appeals when they are relevant to the court’s review of an unfair labor practice proceeding. See Am. Fed’n of Labor v. NLRB, 308 U.S. 401, 409, 60 S.Ct. 300, 84 L.Ed. 347 (1940). The Act authorizes the Board to delegate to Regional Directors the authority to direct representation elections and certify the results. 29 U.S.C. § 153(b). The Board first delegated its authority over representation proceedings to the Regional Directors in 1961. See 26 Fed.Reg. 3911 (May 4, 1961). Regional Directors have been responsible for administering and certifying the results of representation elections in their particular regions ever since.

In what turns out to be a critical distinction for the purposes of this challenge, the statute preserves for the Board the power to review “any action of a regional director” taken pursuant to that delegation, should a party object. 29 U.S.C. § 153(b). Thus, though the Board may empower Regional Directors to oversee representation elections, the terms of the delegation authorized under the Act provide that no Regional Director’s actions are ever final on their own; they only become final if the parties decide not to seek Board review or if the Board leaves those actions undisturbed. Id.

The Act separately 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. 29 U.S.C. § 153(b). When such a panel is created, the Act provides that two of its members make up a quorum of that group. Id. This provision allows the Board to process cases more quickly by spreading them across more panels. Moreover, it allows the Board to continue to function without requiring the attendance of all members. Should two of the five members’ terms expire, the Board can continue to act despite the vacancies, while waiting for Congress to appoint new members. Nevertheless, the statute mandates that “three members of the Board shall, at all times, constitute a quorum of the Board.” Id.

Between August 2010 and January 3, 2012, three of the Board’s five members’ terms expired and the Senate refused to confirm any of the President’s nominees to fill the vacancies, leaving the Board without a quorum and therefore unable to' act. Claiming authority under the Recess Appointments Clause, see U.S. Const, art. II, § 2, cl. 3, the President named three individuals to the Board during a three-day break between pro forma Senate sessions, but the Supreme Court held those appointments unconstitutional in Noel Canning, 134 S.Ct. 2550. No Senate-confirmed appointees were sworn in until August 5, 2013. In the interim, Regional Directors continued to hold elections and certify the results, relying upon the Board’s previous delegation of authority.

B

UC Health is a nonprofit corporation that operates a hospital and provides inpatient and outpatient medical care near the University of Cincinnati in Ohio. In March 2013, while the Board lacked a quorum, the UC Health Public Safety Union filed a petition with the Board seeking to represent a unit of security officers employed by the company. UC Health and the Union entered into a Stipulated Election Agreement that identified the appropriate bargaining unit and established that the Regional Director would supervise a secret-ballot election following the Board’s regulations. Under those regulations, if either [672]*672party files timely objections to the election, it is entitled to plenary review by the Board of any decision of the Regional Director addressing those objections. 29 C.F.R. § 102.67(c). If no objections are filed, the Regional Director “shall” certify the results. Id. § 102.69(b).

The Regional Director held the representation election on April 16, 2013, and the Union prevailed by a small margin. The Regional Director certified the results ■without objection from UC Health or the Union on April 24. Shortly thereafter, the Union requested that UC Health bargain, but the company refused. Citing that refusal to bargain, the Acting General Counsel charged UC Health with an unfair labor practice. The company defended itself on the ground that the Regional Director had acted without authority because the Board lacked a quorum at the time of the election.

The Board granted summary judgment to the Acting General Counsel, finding that the company’s argument was untimely because it had not been made during the representation proceedings. See UC Health and UC Health Public Safety Union, 360 N.L.R.B. No. 71 (2014). And even if not waived, the Board concluded that UC Health’s argument was without merit because the Board had delegated authority over representational proceedings to the Regional Directors in 1961; “[p]ursuant to this delegation, NLRB Regional Directors remain vested with the authority to conduct elections and certify their results, regardless of the Board’s composition at any given moment.” Id. at *1 n. 2. Therefore, the Board determined that the election was valid and UC Health had committed an unfair labor practice by refusing to bargain with the Union. Id. at *2-3. UC Health filed a petition for review in this court. We have jurisdiction under 29 U.S.C. § 160(e), (f).

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Bluebook (online)
803 F.3d 669, 419 U.S. App. D.C. 441, 204 L.R.R.M. (BNA) 3289, 2015 U.S. App. LEXIS 16628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/uc-health-v-national-labor-relations-board-cadc-2015.