National Labor Relations Board v. Bluefield Hospital Co.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1203

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.

On Application for Enforcement of an Order of the National Labor

Relations Board. (10-CA-093042)

Argued: January 26, 2016 Decided: May 6, 2016

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.

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.

2

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

3

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

1

Unless otherwise indicated, all citations to the Code of

Federal Regulations are to the version in effect at the time the

described events took place.

2 Parties, upon mutual consent, may give up their right to

plenary Board review by entering into one of several standard

(Continued)

4

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).

election agreements. See 29 C.F.R. § 102.62. The parties in

this case chose to enter into a “[c]onsent election agreement

with final regional director determinations of post-election

disputes,” meaning that the rulings and determinations of the

Regional Director with respect to a union election “shall be

final . . . with the same force and effect, in that case, as if

issued by the Board.” Id. § 102.62(a); see also J.A. 15-20.

Distinct from a consent election agreement is a stipulated

election agreement, which provides that the representation

“election shall be conducted under the direction and supervision

of the regional director,” but retains “Board review of the

regional director’s resolution of post-election disputes.” 29

C.F.R. § 102.62(b).

5

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.

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

6

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

3

It is undisputed that the Hospitals are “employer[s]”

engaged in “commerce,” and the Union qualifies as a “labor

organization,” under the definitional provisions of the Act. 29

U.S.C. § 152(2), (5), (6), (7).

4 The Agreements waived the Hospitals’ right to pre-election

hearings, which are otherwise mandatory. See 29 U.S.C.

§ 159(c)(1).

7

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

8

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 NLRB v. Noel Canning, 705 F.3d

490 (D.C. Cir. 2013), aff’d on other grounds, 134 S. Ct. 2550

(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,

134 S. Ct. 2550 (2014), affirming, albeit on different grounds,

5 During the unfair labor practice proceedings, the

Hospitals submitted a sworn statement, stating the Hospitals and

the Union agreed orally that the parties would submit election

objections to the Board and an arbitrator concurrently, and that

the agreement was reduced to writing in a document entitled

“Election Procedure Agreement.” However, no written agreement

was offered to the Board or otherwise made a part of the record.

9

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 summary judgment to

the Acting General Counsel, finding that the Hospitals’ refusal

to bargain with the Union violated Sections 8(a)(1) and (5) of

the Act. The Board found that the Hospitals waived Board review

of the Regional Director’s actions with respect to the election

objections because the defense could have been raised during the

representation phase and the Agreements stated that the Regional

Director’s actions would be final. Alternatively, the Board

concluded the Regional Director had validly exercised authority

over the representation proceedings under the longstanding

delegation of such authority by the Board to its Regional

Directors in 1961. The Board also concluded the Regional

Director’s appointment by the Acting General Counsel was valid.

10

Accordingly, the Board ordered the Hospitals to bargain with the

Union, to implement any resulting understanding in a signed

agreement, and to post a remedial notice.

The Board now brings an application for enforcement

pursuant to 29 U.S.C. § 160(e). We have jurisdiction in this

appeal under that statute.

II.

The Hospitals raise several arguments in opposition to the

application for enforcement, which they contend require vacating

the certificates of elections and remanding for new elections.

Primarily, the Hospitals argue the Regional Director lacked

authority to act during the period when the Board did not have a

quorum thereby rendering his decisions on the elections invalid.

The Hospitals also contend the Regional Director’s appointment

to that position occurred after the Board lost a quorum and is

void, thus rendering invalid any actions he took including

conducting and certifying the elections. Relatedly, the

Hospitals argue the Regional Director’s appointment was invalid

because the Acting General Counsel had also lost authority to

act at the time of his appointment. The Hospitals lastly posit

that the Regional Director erred in requiring them to present

evidence in support of their election objections because a

separate contract with the Union precluded such a requirement.

11

For the reasons discussed below, we resolve each of these

arguments in favor of the Board.

A.

As an initial matter, the Board contends that we need not

reach any issue regarding the Board’s lack of a quorum because

the Hospitals waived that argument by failing to raise it during

the representation proceedings and by entering into the

Agreements. The District of Columbia Circuit recently rejected

nearly identical waiver arguments from the Board in UC Health v.

NLRB, 803 F.3d 669 (D.C. Cir. 2015). It held that UC Health had

not waived its no-quorum challenge premised on Noel Canning

because “challenges to the composition of an agency can be

raised on review [by a Circuit Court] even when they are not

raised before the agency.” Id. at 672-73. In addition, it

observed that holding that an election agreement foreclosed the

no-quorum challenge would present a fairness problem:

UC Health did not expressly give up the challenge it

brings now when it executed the Agreement; it merely

signed a form agreement providing that the Board's

regulations would govern the election. Indeed, when

UC Health entered the Stipulated Election Agreement,

no one knew whether Congress might confirm the

President's appointments and obviate the quorum issue

by the time the representation election in this case

took place. And for that matter, UC Health could not

have known with any certainty that the Board had no

quorum even without Senate approval for the

President's appointments until the Supreme Court

handed down its decision in Noel Canning fourteen

12

months after the election. We will not hold UC Health

responsible for failing to see the future.

Id. at 673.

The reasoning in UC Health applies with equal force here,

as the Hospitals raised a no-quorum argument before the Board

and long before the enforcement application in this Court. This

is not the circumstance where a party failed to pursue

diligently a viable defense. The Hospitals promptly raised

before the Board the Supreme Court’s Noel Canning decision,

handed down approximately 22 months after the representation

elections took place, and we thus find no waiver.

B.

The Hospitals’ main argument is that the authority of the

Regional Director lapsed during any period in which the Board

lacked a quorum. Citing to the Restatement (Third) of Agency, §

3.07(4) (Am. Law Inst. 2006), the Hospitals contend that once

the principal (the Board) lost its authority, then its agent

(the Regional Director) lost all delegated authority that

derived from the principal: “an agent may carry out a delegated

authority only so long as the entity that delegated the

authority continues to hold the necessary authority of its own.”

Opening Br. 17. As a consequence, the Hospitals conclude the

Agreements and certifications of elections issued by the

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Regional Director “were void ab initio” because they occurred

when the Board lacked a quorum. Opening Br. 16.

The Board responds that the Supreme Court has implicitly

rejected the Hospitals’ underlying argument in New Process

Steel, L.P. v. NLRB, 560 U.S. 674 (2010). Further, the Board

contends even if New Process Steel is not controlling, the

Board’s interpretation of the Act verifying the ongoing

authority of Regional Directors is entitled to deference under

Chevron, U.S.A., Inc., v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984).

We find the Hospitals’ argument wanting in view of the

Chevron deference owed the Board’s interpretation of the Act

regarding the authority of Regional Directors during the absence

of a Board quorum. 6 The Board has construed the Act as

6

The Board correctly points out that the Supreme Court has,

in dictum, implicitly acknowledged that delegation to Regional

Directors survives the loss of a Board quorum in New Process

Steel, L.P. v. NLRB, 560 U.S. 674 (2010). The issue in that

case was whether two Board members could continue to act on

behalf of the Board after the Board itself lost a quorum. Id.

at 682-83. While the Supreme Court made clear that the Board

lost the authority to act, the Court also observed that its

“conclusion that the delegee group ceases to exist once there

are no longer three Board members to constitute the group does

not cast doubt on the prior delegations of authority to nongroup

members, such as, the regional directors or the general

counsel.” Id. at 684 n.4. We give great weight to Supreme

Court dicta. See McCravy v. Metro. Life Ins. Co., 690 F.3d 176,

182 n.2 (4th Cir. 2012) (assuming that the pertinent language is

dictum, “we cannot simply override a legal pronouncement

endorsed . . . by a majority of the Supreme Court.”); United

(Continued)

14

authorizing Regional Directors to exercise delegated authority

during a period in which the Board lacks a quorum. Bluefield

Hosp. Co., 361 N.L.R.B. No. 154 (2014).

The validity of an agency’s interpretation of a

congressional act the agency is charged to administer is

reviewed by a Court under the familiar two-step test set out in

Chevron. See Montgomery Cty., Md. v. F.C.C., 811 F.3d 121, 2015

WL 9261375, at *6 (4th Cir. Dec. 18, 2015) (“Here, a Chevron

analysis is appropriate because the issue before us involves the

FCC’s interpretation of a statute it is charged with

administering.”). At step one, the Court determines “whether

Congress has directly spoken to the precise question at issue.”

Chevron, 467 U.S. at 842. Here, that would mean if Congress has

plainly addressed whether Regional Directors may continue to act

in the absence of a Board quorum, “that is the end of the

matter[,] for the court, as well as the agency, must give effect

to the unambiguously expressed intent of Congress.” Id. at 842-

43. However, if the statute is silent or ambiguous, the Court

will proceed to Chevron’s second step, which asks whether the

Board’s interpretation is “a permissible construction of the

States v. Fareed, 296 F.3d 243, 246 (4th Cir. 2002) (following

“dictum endorsed by six justices” of the Supreme Court).

Because the Chevron deference argument resolves this issue, we

do not specifically address the effect of New Process Steel.

15

statute.” Id. at 843. If it is, then we must defer. Id. at

844; see also City of Arlington v. FCC, 133 S. Ct. 1863, 1870-71

(2013).

Beginning with the first step of the Chevron analysis,

whether the statute speaks directly and unambiguously to the

Regional Director’s authority during the absence of a Board

quorum, we examine the relevant statutory text:

The Board is authorized to delegate to any group of

three or more members any or all of the powers which

it may itself exercise. The Board is also authorized

to delegate to its regional directors its powers under

section 159 of this title to determine the unit

appropriate for the purpose of collective bargaining,

to investigate and provide for hearings, and determine

whether a question of representation exists, and to

direct an election or take a secret ballot under

subsection (c) or (e) of section 159 of this title and

certify the results thereof, except that upon the

filing of a request therefor with the Board by any

interested person, the Board may review any action of

a regional director delegated to him under this

paragraph, but such a review shall not, unless

specifically ordered by the Board, operate as a stay

of any action taken by the regional director. A

vacancy in the Board shall not impair the right of the

remaining members to exercise all of the powers of the

Board, and three members of the Board shall, at all

times, constitute a quorum of the Board, except that

two members shall constitute a quorum of any group

designated pursuant to the first sentence

hereof. . . .

29 U.S.C. § 153(b). Nothing in the statute addresses the effect

of the Board’s loss of quorum on a prior delegation of authority

to Regional Directors. See Id. As Congress has not plainly

addressed the issue, we must engage in the second part of the

16

Chevron analysis: whether the Board’s interpretation that the

delegation of authority to Regional Directors survives despite

the absence of a Board quorum is a reasonable one to which we

owe deference.

Relying on the express statutory authorization in Section

3(b) of the Act, the Board delegated decisional authority in

representation proceedings to Regional Directors in 1961. 26

Fed. Reg. 3911 (May 4, 1961). At the time of this delegation to

the Regional Directors, the Board had sufficient members to meet

the Board quorum requirement. 26 NLRB Ann. Rep. 1 (1962). The

Board has never rescinded that delegation.

Although the Board lacked a quorum at the time the Regional

Director conducted the elections at issue here, “[t]he policy of

the National Labor Relations Board is that during any period

when the Board lacks a quorum normal Agency operations should

continue to the greatest extent permitted by law.” 29 C.F.R.

§ 102.178; see also id. § 102.182 (“During any period when the

Board lacks a quorum, . . . [t]o the extent practicable, all

representation cases should continue to be processed and the

appropriate certification should be issued by the Regional

Director[.]”).

Only one other Circuit Court of Appeals, the District of

Columbia Circuit, has addressed this precise issue of whether

the Board’s interpretation of the Act, which delegated authority

17

to Regional Directors remains intact during the absence of a

Board quorum, is reasonable and entitled to Chevron deference.

UC Health, 803 F.3d 669; SSC Mystic Operating Co. v. NLRB, 801

F.3d 302 (D.C. Cir. 2015). The D.C. Circuit has now twice held

that the Board’s interpretation “easily” satisfies the standard

of being “reasonable and consistent with the statute’s purpose.”

UC Health, 803 F.3d at 675; SSC Mystic Operating Co., 801 F.3d

at 309 (concluding the Regional Director’s authority to conduct

the representation election was “beyond dispute”). In UC

Health, the court explained its conclusion as follows:

This is a sensible interpretation that is in no way

contrary to the text, structure, or purpose of the

statute. . . . Moreover, allowing the Regional

Director to continue to operate regardless of the

Board’s quorum is fully in line with the policy behind

Congress’s decision to allow for the delegation in the

first place. Congress explained that the amendment to

the [Act] that permitted the Board to delegate

authority to the Regional Directors was “designed to

expedite final disposition of cases by the Board.”

See 105 Cong. Rec. 19,770 (1959) (statement of Sen.

Barry Goldwater). Permitting Regional Directors to

continue overseeing elections and certifying the

results while waiting for new Board members to be

confirmed allows representation elections to proceed

and tees up potential objections for the Board, which

can then exercise the power the [Act] preserves for it

to review the Regional Director's decisions once a

quorum is restored. And at least those unions and

companies that have no objections to the conduct or

result of an election can agree to accept its outcome

without any Board intervention at all. The Board’s

interpretation thus avoids unnecessarily halting

representation elections any time a quorum lapses due

to gridlock elsewhere.

18

Id. at 675-76. We find the reasoning in UC Health persuasive

and agree that the Board’s interpretation is “imminently

reasonable.” Id. at 676.

The Hospitals attempt to distinguish UC Health on its

facts, as those parties entered into a Stipulated Election

Agreement whereby the Board retained plenary power to review the

outcome of the representation proceedings. See 29 C.F.R.

§ 102.62(b) (describing “stipulated election agreements”). The

parties in this case signed Consent Election Agreements, which

vested in the Regional Director final authority to oversee the

representation elections and certify their results, and it

foreclosed Board review over representation proceedings. See

Id. § 102.62(a) (describing “Consent Election Agreement”). This

distinction makes no difference, as we simply apply the contract

terms of the Agreements.

Agreement by contract is among the ways to relinquish the

right to plenary Board review and confer on the Regional

Director final authority over representation proceedings. UC

Health, 803 F.3d at 680 (“Only the acquiescence of the parties

or the Board’s ratification can give binding force to a Regional

Director’s determination.”). This is a matter of contract law,

not administrative law. NLRB v. MEMC Elec. Materials, Inc., 363

F.3d 705, 709 (8th Cir. 2004) (stating the Board was “on sound

ground in emphasizing that parties are bound by an approved

19

election agreement, just as they are bound by other contracts”).

“When asked to approve election agreements, the Board's long-

standing approach has been to honor the parties' freedom of

contract, unless their contract is contrary to the statute or

Board policy.” Id. By signing the Agreements, the Hospitals

signed a contract in which they agreed to give up Board review

and to vest the Regional Director with authority to issue final

decisions at the representation phase. The Hospitals are bound

by that contract just as they are bound by other contracts.

Accordingly, we give deference to the Board’s

interpretation and conclude that the Regional Director’s

authority to act was not abrogated during the period when the

Board lacked a quorum. 7

7 Although we acknowledge the recent decision of the D.C.

Circuit in Hosp. of Barstow, Inc. v. N.L.R.B., No. 14-1167, 2016

WL 1720366 (D.C. Cir. Apr. 29, 2016), we find it inapposite here

for two distinct reasons. First, no petition for review was

filed in this case. See 29 U.S.C. § 160(f) (requiring a

petition for review to be in writing and filed with the Court).

Second, in Hospital of Barstow, the Board did not offer an

interpretation of the statutory quorum provision that would

raise Chevron deference on appeal, concluding only “that the

challenge to the Regional Director’s authority had been waived.”

Id. at *3. In this case, however, the Board argued waiver and

provided an interpretation of the statute whereby the Regional

Director could act in the absence of a Board quorum. For the

reasons discussed, we owe that interpretation Chevron deference.

20

C.

The Hospitals also urge the Court to hold that the Regional

Director was not validly appointed because the Acting General

Counsel, Lafe Solomon, was without authority to act at the time

of Regional Director Harrell’s appointment. Citing Section 3(d)

of the Act, the Hospitals contend Solomon was a temporary

appointee to his position and that his authority had lapsed

under the statute at the time the Regional Director was

appointed. See 29 U.S.C. § 153(d) (limiting temporary

appointment to “forty days when the Congress is in session

unless a nomination to fill such vacancy shall have been

submitted to the Senate”). We do not find this argument

persuasive because it is the Board, not the General Counsel,

which has final authority to appoint a Regional Director. And

the Board did, in fact, approve Harrell as the Regional

Director.

The Act provides that “[t]he Board shall appoint . . .

regional directors.” 29 U.S.C. § 154(a); see also 29 C.F.R.

§ 102.5 (“The term regional director as used herein shall mean

the agent designated by the Board as the regional director for a

particular region[.]”). The General Counsel is vested by the

Act with “general supervision” over employees in the regional

offices. 29 U.S.C. § 153(d). The Board has implemented rules

and regulations delegating certain appointive responsibilities

21

to the General Counsel, but as to Regional Directors a

designation by the General Counsel is valid “only upon approval

of the Board.” 67 Fed. Reg. 62992-93 (Oct. 1, 2002); see also

24 Fed. Reg. 6666-67 (Aug. 15, 1959). In other words, the Board

must ratify the Regional Director’s appointment and any

“appointment” by the General Counsel is of no effect until the

Board acts. For that reason, even if we assume Solomon’s

appointment as Acting General Counsel had lapsed at the time of

the Regional Director’s appointment, it makes no difference. It

is the Board -– not the General Counsel -- that retains final

authority over the appointment of a Regional Director, and the

Board approved the appointment of the Regional Director in this

case. Accordingly, the Hospitals’ argument fails. 8

8Before the Board, the Hospitals also argued the Acting

General Counsel “lacked the authority to prosecute the

consolidated complaint.” Bluefield Hosp., 361 N.L.R.B. No. at 2

n.5. The Board rejected this argument, and the Hospitals do not

raise this issue on appeal, a point they confirmed at oral

argument. Oral Argument at 18:05-18:15. Although we are fully

cognizant of the decisions in SW General, Inc. v. NLRB, 796 F.3d

67, 83 (D.C. Cir. 2015), and Hooks v. Kitsap Tenant Support

Services, Inc., No. 13-35912, 2016 WL 860335 (9th Cir. Mar. 7,

2016), the Hospitals have waived any argument in that regard.

Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 604 n.4

(4th Cir. 2010) (concluding that an argument not raised in the

opening brief is waived); see also SW General, 796 F.3d at 83

(“We address the [Federal Vacancies Reform Act (“FVRA”)]

objection in this case because the petitioner raised the issue.

. . . We doubt that an employer that failed to timely raise an

FVRA objection -- regardless of whether enforcement proceedings

are ongoing or concluded -- will enjoy the same success.”).

22

D.

The Hospitals also contend that the Board appointed the

Regional Director after the Board lost a quorum and

consequently, the appointment was invalid. This is a factual

dispute; either the Board acted to appoint the Regional Director

before it lost a quorum or it didn’t. In resolving such a

factual dispute, “[t]he findings of the Board with respect to

questions of fact if supported by substantial evidence on the

record considered as a whole shall be conclusive.” 29 U.S.C.

§ 160(e).

The Board determined that the Regional Director’s

appointment became final on December 22, 2011, approximately one

week before the Board lost its quorum. Bluefield Hosp., 361

N.L.R.B. No. at 2 n.5. That factual finding is supported in the

record by a document entitled “Minute of Board Action” of

December 22, 2011, which states that the Board “unanimously

approved” the selection of Claude Harrell as Regional Director

for Region 10 by votes taken December 21 and 22, 2011. Board’s

Response Br., Attach. A. The “Minute of Board Action” settles

the issue, as it is substantial evidence. We are bound on

appeal by that finding and thus find no merit in the Hospitals’

argument.

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E.

Having resolved the issues related to the authority of the

Board or the Regional Director to act, we turn to the merits.

Section 8(a)(1) of the Act makes it an unfair labor

practice “to interfere with, restrain, or coerce employees in

the exercise of [their rights under the Act],” while Section

8(a)(5) makes it an unfair labor practice for an employer “to

refuse to bargain collectively with the representatives of his

employees.” 29 U.S.C. § 158(a)(1), (5). The Hospitals admit

they refused to bargain with the Union, but contend that the

Board erred in its decision to uphold the results of the

representation elections because the Regional Director should

not have overruled their objections to the election results on

procedural grounds.

“‘Congress has entrusted the Board with a wide degree of

discretion in establishing the procedure and safeguards

necessary to insure the fair and free choice of bargaining

representatives by employees.’” NLRB v. Md. Ambulance Servs.,

Inc., 192 F.3d 430, 433 (4th Cir. 1999) (quoting NLRB v. A.J.

Tower Co., 329 U.S. 324, 330 (1946)); see also NLRB v. Waterman

Steamship Corp., 309 U.S. 206, 226 (1940) (“The control of the

election proceeding, and the determination of the steps

necessary to conduct [an] election fairly were matters which

Congress entrusted to the Board alone.”). “The results of a

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Board-supervised representation election are presumptively

valid,” NLRB v. Flambeau Airmold Corp., 178 F.3d 705, 707 (4th

Cir. 1999), and we will overturn a representation election only

where the Board has clearly abused its discretion, Elizabethtown

Gas Co. v. NLRB, 212 F.3d 257, 262 (4th Cir. 2000).

The applicable regulations governing post-election

objections instruct parties to file election objections

“[w]ithin 7 days after the tally of ballots has been prepared”

and “[w]ithin 7 days after the filing of objections, or such

additional time as the Regional Director may allow, the party

filing objections shall furnish to the Regional Director the

evidence available to it to support the objections.” 29 C.F.R.

§ 102.69(a)(emphasis added). The NLRB’s “casehandling manual”

provides: “Absent the timely receipt of sufficient evidence, the

Regional Director should overrule the objections without any

further processing.” Nat’l Labor Relations Bd., Casehandling

Manual (Part 2, Representation Proceedings) § 11392.6 (2014).

The Hospitals admit they were aware that their supporting

evidence for the filed objections was to be submitted in the

respective cases no later than September 12 and 13, 2012. They

further admit that they declined to submit any evidence and made

no request for an extension of time to submit evidence. The

regional director overruled their objections on September 24,

well after the 7-day deadline had passed. “[I]t is not

25

sufficient for an employer merely to question the interpretation

of or legal conclusions drawn from the facts by the Regional

Director.” Nat’l Posters, Inc. v. NLRB, 720 F.2d 1358, 1362

(4th Cir. 1983). “To be entitled to a hearing, the objecting

party must make a proffer of evidence which prima facie would

warrant setting aside the election.” NLRB v. Hydrotherm, Inc.,

824 F.2d 332, 335 (4th Cir. 1987) (internal quotation marks

omitted). The Regional Director was well within his authority

to overrule the objections and rescind the hearings notices, and

indeed the Board’s rules directed him to do so in this

circumstance.

The Hospitals counter that they were not obligated to

submit evidence in support of their objections because they had

an oral agreement with the Union to submit the matter to an

arbitrator. However, the Board has since explained that it

consistently rejects employers’ claims of “an oral ad hoc

agreement between the parties g[iving] exclusive jurisdiction to

an arbitrator.” D.H.S.C., LLC, 362 N.L.R.B. No. 78, at *1 n.3

(Apr. 30, 2015) (noting the Board had rejected an identical

argument several times before and warning that continuing to

press the “nonmeritorious” argument could result in disciplinary

proceedings). To the extent the Hospitals now claim this oral

agreement was reduced to writing at some point, it is not in the

26

record. See 9 U.S.C. § 2 (requiring agreements to arbitrate to

be in writing under the Federal Arbitration Act).

We therefore conclude the Hospitals’ sole challenge to the

merits of the Board’s final decision to be baseless.

III.

For the reasons set out above, we grant the Board’s

application for enforcement of its order.

APPLICATION FOR ENFORCEMENT GRANTED

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