Hosp. of Barstow, Inc. v. Nat'l Labor Relations Bd.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 13, 2018 Decided July 31, 2018

No. 16-1343

HOSPITAL OF BARSTOW, INC., DOING BUSINESS AS BARSTOW

COMMUNITY HOSPITAL,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

CALIFORNIA NURSES ASSOCIATION/NATIONAL NURSES

ORGANIZING COMMITTEE,

INTERVENOR

Consolidated with 16-1289

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Kaitlin A. Kaseta argued the cause for petitioner. With her

on the briefs was Bryan T. Carmody.

Barbara A. Sheehy, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the brief

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were Richard F. Griffin, Jr., General Counsel, John H.

Ferguson, Associate General Counsel, Linda Dreeben, Deputy

Associate General Counsel, and Jill A. Griffin, Attorney.

Nicole Daro argued the cause and filed the brief for

intervenor.

Before: GRIFFITH, SRINIVASAN and WILKINS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: This case comes to this court

a second time. It grows out of a decision of the National Labor

Relations Board holding that Hospital of Barstow refused to

bargain in good faith with a union representing nurses at the

facility. The main issue concerns whether a Regional Director

of the Board retained authority to certify the union during a

period in which the Board itself lacked power to take action

because its membership had slipped below the statutorily

mandated quorum. If the Board itself had lost power to take

any action, could a Regional Director, exercising

Board-delegated authority, conduct a representation election

and certify the results?

In previous decisions, we held that, notwithstanding the

lapse of a Board quorum, Regional Directors retain authority

to direct elections administered under a so-called stipulated

election agreement—an agreement under which the employer

and union agree to have a Regional Director conduct the

election, but subject to the possibility of Board review if a party

opts to seek it. See UC Health v. NLRB, 803 F.3d 669 (D.C.

Cir. 2015); SSC Mystic Operating Co. v. NLRB, 801 F.3d 302

(D.C. Cir. 2015). This case involves a so-called consent

election agreement, not a stipulated election agreement. In a

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consent election agreement, the parties agree in advance that

the Regional Director’s decisions will be final and

unreviewable.

In our previous decisions concerning stipulated election

agreements, we deferred to the Board’s interpretation of the

NLRA’s quorum provision in upholding the authority of

Regional Directors to conduct and certify elections when the

Board lacks a quorum. When we first considered this case, the

Board had yet to address whether it had the same understanding

of the quorum provision in the context of a consent election

agreement. We remanded the case to enable the Board to

consider that question. Hosp. of Barstow, Inc. v. NLRB, 820

F.3d 440 (D.C. Cir. 2016).

On remand, the Board saw no salient difference between

consent election agreements and stipulated election

agreements. It thus interpreted the NLRA’s quorum provision

to allow Regional Directors to conduct representation elections

under a consent election agreement notwithstanding the lapse

of a Board quorum. As in our previous decisions, we again

sustain the Board’s understanding of the statute as reasonable.

We also reject the hospital’s various challenges to the Board’s

finding of unfair labor practices and to the remedies imposed

by the Board.

I.

A.

The National Labor Relations Act provides that the Board

shall consist of five members, 29 U.S.C. § 153(a), and allows

the Board to delegate its powers to panels made up of three or

more members, id. § 153(b). The Act prescribes that “three

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members of the Board shall, at all times, constitute a quorum

of the Board.” Id.

The same NLRA provision authorizes the Board to

delegate to Regional Directors the authority to conduct

representation elections, rule on the parties’ objections to the

election procedures, and certify the results. See id. In 1961,

the Board delegated its authority over representation

proceedings to Regional Directors, who have conducted

representation elections since that time. See Delegation of

Authority, 26 Fed. Reg. 3911-02 (May 4, 1961). The Board

retains authority to review any action of a Regional Director

upon the filing of a request by an interested party. But parties

also can waive their right to request Board review. See 29

C.F.R. § 102.67(g). The result is that a Regional Director’s

action is final if the parties elect not to seek Board review or if

the Board denies review and leaves the underlying decision

undisturbed.

As of January 3, 2012, the terms of three Board members

had expired and their seats remained vacant because the Senate

did not confirm the President’s nominees. On January 4, 2012,

the President, asserting authority under the Recess

Appointments Clause, U.S. Const. art. II, § 2, cl. 3, appointed

three individuals to the Board. The Supreme Court, however,

held those recess appointments to be invalid. NLRB v. Noel

Canning, 134 S. Ct. 2550 (2014). On July 30, 2013, the Senate

confirmed two new nominees to the seats. During the

intervening period, the Board lacked a quorum. See 29 U.S.C.

§ 153(b). The Regional Directors nonetheless continued to

conduct representation elections and certify the results

pursuant to the Board’s 1961 delegation of authority.

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B.

Hospital of Barstow operates an acute-care facility in

California. In 2012, the California Nurses

Association/National Nurses Organizing Committee (the

Union) initiated an organizing campaign to represent

Barstow’s nurses. On May 2, 2012, during the time the Board

lacked a quorum, Barstow and the Union entered into a consent

election agreement, under which a Regional Director would

conduct the election and the parties agreed that the Regional

Director’s election rulings and certification would be final.

The nurses voted in favor of the Union. Barstow lodged

two objections with the Regional Director, both of which were

rejected. On June 29, 2012, the Regional Director certified the

Union’s election. Soon after, Barstow and the Union

commenced the bargaining process, but the negotiations ended

after Barstow declared an impasse. In September 2012, the

Union filed a charge with the Board alleging that Barstow had

engaged in unfair labor practices and had refused to bargain

with the Union. An administrative law judge agreed and found

that Barstow had violated the Act.

The Board largely affirmed the ALJ’s decision. Hosp. of

Barstow, Inc., 361 NLRB 352 (2014). The Board determined

that Barstow, in two ways, had failed to bargain in good faith.

First, Barstow refused to submit proposals on many of the labor

issues over which the parties were bargaining, stating that it

would do so only after the Union submitted its proposals on all

issues. Second, Barstow declared impasse over the Union’s

use of certain customized forms that enabled a nurse to

document situations that might be unsafe or jeopardize the

nurse’s license. The Board also concluded that Barstow

committed an unfair labor practice when it unilaterally changed

its certification training policy. Finally, the Board held that

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Barstow, by entering negotiations with the Union, had waived

its ability to contend that the Board’s lack of a quorum divested

the Regional Director of authority to certify the election. The

Board thus did not reach the merits of that issue.

To remedy Barstow’s bargaining violations, the Board

ordered Barstow to cease its unfair practices and resume

bargaining with the Union. The Board also required Barstow

to reimburse the Union’s negotiating expenses.

Barstow petitioned for review in this court. We held that

the Board had erred in ruling that Barstow waived its ability to

challenge the Regional Director’s authority to conduct the

representation election. Hosp. of Barstow, 820 F.3d at 442-43.

With regard to the merits of that issue, we had recently

sustained the Board’s understanding that, notwithstanding the

lapse of a Board quorum, Regional Directors retained authority

to certify elections conducted pursuant to a stipulated election

agreement, under which either party can seek Board review of

the Regional Director’s actions. See UC Health, 803 F.3d 669;

SSC Mystic, 801 F.3d 302. This case, though, involved a

consent election agreement, under which the parties agree that

a Regional Director’s election rulings will be final. 29 C.F.R.

§ 102.62(a). And whereas we had deferred to the Board’s

interpretation of the NLRA’s quorum provision in the context

of a stipulated election agreement, the Board had yet to

interpret the provision in the context of a consent election

agreement. We remanded the case to enable the Board to opine

on whether, in the latter context (like in the former one), a

Regional Director retains authority to certify representation

elections during a time in which the Board lacks a quorum.

Hosp. of Barstow, 820 F.3d at 445.

On remand, the Board interpreted the NLRA to authorize

Regional Directors to continue exercising their delegated

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authority under a consent election agreement, notwithstanding

a lapse in the Board’s quorum. Hosp. of Barstow, Inc., 364

NLRB No. 52, slip op. at 4 (July 15, 2016). The Board also

readopted its earlier decision that Barstow had violated the Act

and reissued its order of remedies. Id. at 4-5.

Barstow now petitions for review of the Board’s decision,

and the Board seeks cross-enforcement of its order. The Union

has intervened in support of the Board’s decision.

II.

Barstow principally contends that the Regional Director

lacked delegated authority to conduct and certify the

representation election because, at the time, the Board did not

have a statutorily mandated quorum of three members. We

reject that challenge, and also reject Barstow’s various

challenges to the Board’s finding of unfair labor practices and

the associated remedies.

A.

The NLRA prescribes that “three members of the Board

shall, at all times, constitute a quorum.” 29 U.S.C. § 153(b).

The same provision also authorizes the Board to delegate to

Regional Directors the Board’s authority to conduct

representation elections and certify the results. Id.

1.

In UC Health, 803 F.3d 669, we upheld the Board’s

interpretation of the NLRA’s quorum provision to allow

Regional Directors to direct and certify representation elections

during a time the Board lacks a quorum. The case involved an

election conducted pursuant to a stipulated election agreement,

under which the parties can opt to seek the Board’s

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discretionary review of the Regional Director’s election

rulings. See id. at 671-72.

UC Health examined the Board’s interpretation of the

quorum provision under “the familiar two-step Chevron test.”

Id. at 673 (citation omitted). At the first step, we “conclude[d]

that the statute is silent on the issue of the Regional Director’s

power to act when the Board lacks a quorum.” Id. at 674. We

thus proceeded to assess whether, at the second step, the

Board’s interpretation “is reasonable and consistent with the

statute’s purpose.” Id. at 675. We held that “the Board’s

interpretation easily meets this requirement.” Id.

We explained that the question was not whether the Board

itself (or a subset of the Board) could take actions when it

lacked a quorum. That had been the issue we addressed in

Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d

469 (D.C. Cir. 2009). There, we determined that a subset of

the Board could not exercise the Board’s “plenary, final

authority . . . in its place” at a time when the Board lacked a

quorum. UC Health, 803 F.3d at 678-79 (discussing Laurel

Baye).

In UC Health, the question instead was whether, when the

Board lacks a quorum, a Regional Director can exercise

authority that had been delegated by the Board at a time it did

have a quorum. We emphasized that, unlike the Board (or a

subset of the Board as in Laurel Baye), Regional Directors

“never similarly occupy the Board’s role as a final

decisionmaker.” Id. at 679. “No decision of the Regional

Directors is ever final under its own power.” Id. at 680. Rather,

“[o]nly the acquiescence of the parties or the Board’s

ratification can give binding force to a Regional Director’s

determination.” Id. “In other words,” we reasoned, “a

Regional Director never has the last say on anything unless a

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party fails to object. In that event, it is the parties’ choice to

leave the Regional Director’s decisions unchallenged that

effectively makes the election final.” Id.

“Moreover,” we explained, “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.” Id. at

675. We determined that the purpose of allowing a delegation

of authority to Regional Directors was “to expedite final

disposition of cases by the Board.” Id. (citation omitted). “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.” Id. at 675-76.

We thus deferred to the Board’s reasonable interpretation of the

NLRA’s quorum provision, id. at 676, and we reiterated that

holding in our companion decision in SSC Mystic, 801 F.3d at

308-09.

2.

This case, unlike UC Health and SSC Mystic, involves an

election conducted under a consent election agreement.

Whereas the parties to a stipulated election agreement can seek

discretionary Board review of a Regional Director’s election

decisions, the parties to a consent election agreement agree to

forgo Board review and accept the Regional Director’s

decisions as final. The Board found that distinction to be an

immaterial one in its decision below.

The Board explained that, even in the case of a stipulated

election agreement, the Regional Director’s decisions can still

be final if the parties do not seek Board review. The Board saw

no “meaningful distinction between the ‘finality’ accorded to

the Regional Director’s certification of [a] representative based

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on the parties’ consent election agreement and the ‘finality’

accorded to the Regional Director’s certification of [a]

representative in UC Health based on the parties’ choice not to

seek Board review to which they otherwise were entitled under

their stipulated election agreement.” Hosp. of Barstow, 364

NLRB No. 52, slip op. at 3. Because “it is the parties’

agreement, not the Board’s delegation, that gives the Regional

Director’s decision finality” under a consent election

agreement, the Board determined that the lapse of a quorum did

not divest the Regional Director of authority to certify the

Union in this case. Id. at 6.

Barstow urges us to reject the Board’s interpretation of the

NLRA’s quorum provision in the context of a consent election

agreement. As in UC Health, however, we again defer to the

Board’s interpretation of the statute. UC Health explains why

our decision in Laurel Baye does not control when the question

concerns the exercise of delegated authority by a Regional

Director (as opposed to a subset of the Board “occupy[ing] the

Board’s role as a final decisionmaker”). UC Health, 803 F.3d

at 679. UC Health also establishes that the quorum provision

is ambiguous on whether a Regional Director retains authority

to certify a representation election when the Board lacks a

statutory quorum. See id. at 674. The question for us, then, is

whether the Board’s interpretation is reasonable, in which case

we must defer to it. Id. at 675. We conclude the Board’s

interpretation is reasonable.

The sole potentially salient difference between stipulated

election agreements and consent election agreements is that, in

the latter, the parties agree at the outset that they will forgo

Board review. The parties thus know in advance that the

Regional Director’s actions will generally be final. Cf. Pierre

Apartments, 217 NLRB 445, 446 (1975) (noting possibility of

Board review even under consent election agreement if there is

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fraud, misconduct, or gross mistakes amounting to arbitrary

and capricious rulings by the Regional Director.).

But while the parties know that the Regional Director’s

decisions will be final in the case of a consent election

agreement, the finality results from the parties’ choice to forgo

Board review, not from the Board’s delegation of authority

itself. In that sense (and as the Board explained), the finality

arising under a consent election agreement mirrors the finality

arising under a stipulated election agreement when neither

party chooses to seek Board review. The Board reasonably saw

no material distinction between the two. In both situations, the

delegation of authority to the Regional Director does not

inherently involve authority to render final Board decisions.

Rather, in both situations, the parties can choose to give a

Regional Director the final say by opting against Board review.

It is true that, under the Board’s regulations, a Regional

Director’s decisions pursuant to a consent election agreement

are treated as “final . . . with the same force and effect, in that

case, as if issued by the Board.” 29 C.F.R. § 102.62(a). But

the regulations similarly describe a Regional Director’s

decision under a stipulated election agreement as “final” if

there is no grant of discretionary review by the Board, 29

C.F.R. § 102.67(g), which includes a situation in which neither

party asks for Board review. See 2 NLRB Casehandling

Manual, Representation Proceedings § 11364.7(a) (Jan. 2017).

And while a Regional Director’s actions under a consent

election agreement are accorded “the same force and effect . . .

as if issued by the Board,” they have that “force and effect”

only “in that case,” 29 C.F.R. § 102.62(a): unlike the Board’s

own rulings, a Regional Director’s decision is not “Board

precedent in future cases.” Proposed Rules Governing

Consent-Election Agreements, 69 Fed. Reg. 44,612, 44,612

(proposed July 22, 2004) (rule codified at 29 C.F.R. § 102.62).

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That difference reinforces that the Board could reasonably

understand a Regional Director’s delegated authority to survive

the Board’s loss of a quorum.

Barstow submits that, under our decisions in UC Health

and SSC Mystic, the parties to a consent election agreement

cannot give a Regional Director the power to render final

decisions in a given case. Barstow relies on our holding in UC

Health and SSC Mystic that, when the parties agree to a

Regional Director’s conduct of a representation election, they

do not thereby waive their ability to challenge—on judicial

review—the Regional Director’s authority to act. UC Health,

803 F.3d at 673; SSC Mystic, 801 F.3d at 308. That holding

about the ability to raise a challenge on judicial review has no

bearing on the issue we consider here. In particular, nothing in

UC Health or SSC Mystic suggests that parties who desire to

enter into a consent election agreement cannot agree to give the

Regional Director the final say by waiving their ability to seek

Board review.

Barstow, finally, attempts to draw a distinction between

stipulated and consent election agreements based on timing.

Under a stipulated election agreement, a Regional Director’s

decision becomes final only if the parties opt against seeking

Board review after certification of the election. The parties to

a consent election agreement, by contrast, waive their right to

seek Board review at the outset, before the election begins.

Barstow thus submits that, in the case of a consent election

agreement, the Regional Director is cloaked with authority to

provide the final say on election matters at the time of her or

his rulings. And if the Board itself could not issue rulings at

that time because of the absence of a quorum, Barstow argues,

neither can the Regional Director.

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The Board was not compelled to draw a distinction

between consent and stipulated election agreements on that

basis. In both contexts, a Regional Director exercises

delegated authority to oversee and certify elections, and her

rulings become final without Board action only if the parties

choose to forgo seeking Board review. At every relevant

time—the time of the Regional Director’s rulings and

certification, as well as the time of the parties’ decision to forgo

Board review—the Board may lack a quorum. Regardless, the

Board permissibly concluded, the Regional Director does not

“stand in the Board’s place.” UC Health, 803 F.3d at 680.

Rather, the Regional Director exercises delegated, non-final

authority, even though her decisions can be the final word if

the parties choose to forgo Board review.

The parties’ choice to do so, we held in UC Health, need

not be seen to vitiate the Board’s delegation of non-final

election authority to Regional Directors, notwithstanding the

lapse of a Board quorum. The same is true here. We thus defer

to the Board’s interpretation of the NLRA’s quorum provision

and conclude that the Regional Director had authority to

conduct the election and certify its results in favor of the Union.

B.

Having concluded that the Regional Director had authority

to certify the Union’s election, we now turn to Barstow’s

challenges to the merits of the Board’s decision, none of which

we find persuasive.

1.

Barstow contends that the Board erred in rejecting

Barstow’s request to submit this dispute to arbitration. The

Board has discretion to defer labor disputes to arbitration. See

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DaimlerChrysler Corp. v. NLRB, 288 F.3d 434, 444-45 (D.C.

Cir. 2002); Collyer Insulated Wire, Gulf & W. Sys. Co., 192

NLRB 837, 840 (1971). In deciding whether to do so, the

Board considers a number of factors, including the length and

productivity of the parties’ bargaining relationship, the

existence of any claim of employer animosity toward the

employees’ exercise of protected rights, the coverage of the

parties’ arbitration agreement, and ultimately, the suitability of

the dispute to arbitration. See United Cerebral Palsy of NYC,

347 NLRB 603, 605 (2006). We uphold the Board’s decision

on deferral as long as the decision is “rational and consistent

with the Act.” DaimlerChrysler Corp., 288 F.3d at 444.

In this case, the Board declined to defer the dispute to

arbitration for two reasons. First, the parties had not entered

into a collective-bargaining agreement establishing an

arbitration procedure. Second, the parties’ bargaining

relationship was brief and unproductive. The Board’s reliance

on those considerations is consistent with its precedent, and we

see no basis to reject the Board’s approach or conclusion.

With regard to the absence of an agreement establishing an

arbitration procedure, Barstow argues that the parties had

entered into a “Labor Relations Agreement” that included an

arbitration provision. That agreement, however, was never

signed or executed; and according to the agreement’s own

terms, it would take effect and bind the parties only if signed.

As for the duration and nature of the parties’ bargaining

relationship, Barstow argues that the Board unduly focused on

the brevity of the parties’ relationship. But that focus was

consistent with previous decisions in which the Board has

determined that “short and fraught” relationships are not well

suited for arbitration. E.g., San Juan Bautista, Inc., 356 NLRB

736, 737 (2011). In short, the Board permissibly declined to

defer the dispute to arbitration.

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2.

The NLRA 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)(5). In

that regard, the employer must “meet [with the Union] at

reasonable times” and “confer in good faith with respect to

wages, hours, and other terms and conditions of employment.”

Id. § 158(d). The employer also cannot interfere with, restrain,

or coerce employees in the exercise of their protected rights.

Id. § 158(a)(1).

The Board adopted the ALJ’s finding that Barstow had

violated the NLRA by refusing to submit its bargaining

proposals until the Union set forth its proposal in full. The

Board also adopted the ALJ’s finding that Barstow violated the

Act by declaring an impasse and refusing to bargain. We can

overturn the Board’s decision in those respects only if it is

arbitrary or is unsupported by substantial evidence in the

record. See Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 348

(D.C. Cir. 2011). We sustain the Board’s decision.

The record fully supports the Board’s finding that Barstow

failed to bargain in good faith by refusing to put forward

proposals until the Union presented its proposals on every issue

over which the parties were bargaining. Barstow observes that

there had been some previous discussions of several bargaining

subjects. But after reaching tentative agreements on a handful

of issues, Barstow refused to offer further proposals until the

Union set forth its proposal in full. To the extent Barstow

claims that it could aggressively defend a bargaining position,

it does not dispute that an outright refusal to submit proposals

or counterproposals evidences bad-faith bargaining. See, e.g.,

Fed. Mogul Corp., 212 NLRB 950, 951 (1974).

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The Board determined that Barstow also violated the Act

by declaring a bargaining impasse over the Union’s support of

nurses using “assignment despite objection” (“ADO”) forms to

document conditions that, in the nurses’ view, were unsafe or

that could threaten their nursing licenses. The Board found that

the ADO forms never became a subject of bargaining, such that

Barstow could not declare an impasse over the matter. That

finding is supported by substantial evidence. Neither Barstow

nor the Union made any proposals concerning the forms. The

only time the parties discussed them was when Barstow

insisted that the Union discontinue using them before Barstow

would resume the bargaining process. In that context, the

Board permissibly concluded that Barstow’s declaration of

impasse was unlawful because it was based on an issue outside

the scope of the parties’ bargaining.

Barstow contends that the ADO forms were necessarily

tied to the Union’s bargaining proposal because the Union

provided the forms to nurses who sat on the bargaining council.

But that shows, at most, that the Union used the forms to

prepare for negotiations; it hardly shows that the forms were a

subject over which the parties in fact engaged in bargaining.

To the contrary, the Union continued to express its willingness

to bargain over the ADO forms and other issues even after

Barstow declared impasse.

3.

Finally, Barstow argues that we should decline to enforce

the Board’s award of negotiating expenses to the Union. We

have acknowledged that “the choice of remedies is primarily

within the province of the Board.” United Steelworkers of Am.

v. NLRB, 376 F.2d 770, 773 (D.C. Cir. 1967). The Board can

order reimbursement of an aggrieved party’s bargaining

expenses when the opposing party’s bad-faith conduct has

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“infected the core” of the process, rendering traditional

remedies inadequate to remedy the violation. Fallbrook Hosp.

Corp. v. NLRB, 785 F.3d 729, 738 (D.C. Cir. 2015). We upset

the Board’s choice of remedy only if the order was a “clear

abuse of discretion.” United Steelworkers, 376 F.2d at 773. We

find no such abuse here.

The Board found that, throughout the bargaining process,

Barstow “deliberately acted to prevent any meaningful

progress” by refusing to bargain. Hosp. of Barstow, 361 NLRB

at 355. Barstow does not dispute that it refused to provide

bargaining proposals on many issues for the first five

bargaining sessions, and subsequently refused to bargain until

the nurses ceased using the ADO forms, ultimately declaring

an impasse. Barstow contends that its conduct was not as

egregious as the employers’ conduct in previous Board

decisions ordering a reimbursement remedy. But as we have

explained, the Board’s prior decisions do not necessarily

establish a floor for reimbursement awards; rather, the Board

weighs the facts of each case to determine whether

reimbursement is necessary to make an aggrieved party whole.

See Fallbrook, 785 F.3d at 738. Here, the Board took into

account the totality of Barstow’s bargaining conduct and

permissibly determined that reimbursement of the Union’s

expenses was needed to remedy the violations.

* * * * * *

In its opening brief, Barstow listed a number of issues

beyond those discussed in this opinion when noting the issues

raised by its petition. Barstow Op’g Br. 2-5. But Barstow

forfeited those issues by offering no argument on them. See,

e.g., Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).

For the foregoing reasons, we deny Barstow’s petition for

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review and grant the Board’s cross-application for

enforcement.

So ordered.