Hospital of Barstow Inc., d/b/a Barstow Community Hospital

National Labor Relations Board - Board Decisions

Jul 15, 2016

364 NLRB No. 52 (N.L.R.B. 2016)

364 NLRB No. 52
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Hospital of Barstow, Inc. d/b/a Barstow Community
Hospital and California Nurses Associa-
tion/National Nurses Organizing Committee
(CNA/NNOC), AFL–CIO. Cases 31–CA–090049
and 31–CA–096140
July 15, 2016
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On August 29, 2014, the National Labor Relations
Board issued a Decision and Order in this proceeding,
reported at 361 NLRB No. 34, in which it adopted the
findings of Administrative Law Judge Jay R. Pollack that
the Respondent violated Section 8(a)(5) and (1) of the
National Labor Relations Act by refusing to submit any
bargaining proposals or counterproposals until it received
the Union’s entire contract proposal, and by declaring
impasse and refusing to bargain unless the Union di-
rected unit employees to stop using the union-provided
Assignment Despite Objection (ADO) form to document
circumstances that they believed were unsafe for patients
or could jeopardize their nursing licenses. Id. at 1. The
Board also found that “[t]he Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally implementing
its HeartCode policy to replace onsite, instructor-led
training with the online training program, and by limiting
the number of hours that employees could be paid for
completing the program.” Id. at 3. Finally, the Board
rejected the Respondent’s claim, raised for the first time
in the unfair labor practice case, that the Regional Direc-
tor lacked authority to certify the Union in Case 31–RC–
080046 because the certification issued at a time when
the Board lacked a quorum. The Board did not address
the merits of the Respondent’s quorum-based argument,
finding that the Respondent waived its right to challenge
the certification when it entered into negotiations with
the Union. Id. at 1, fn. 5.
Subsequently, the Respondent petitioned the United
States Court of Appeals for the District of Columbia Cir-
cuit for review, and the Board filed a cross-application
for enforcement. In support of its petition for review, the
Respondent argued, inter alia, that the Board erred in
finding that the Respondent waived its quorum-based
challenge to the authority of the Regional Director to
certify the Union as the collective-bargaining representa-
tive of a unit of the Respondent’s employees. The es-
sence of the Respondent’s argument, as refined during
oral argument before the court, centered on its interpreta-
tion of the court’s recent decisions in SSC Mystic Oper-
ating Co. v. NLRB, 801 F.3d 302 (D.C. Cir. 2015); and
UC Health v. NLRB, 803 F.3d 669 (D.C. Cir. 2015). In a
November 15, 2015 letter to the court, the Respondent
stated:
The Hospital’s position in response to the Board’s cita-
tions to supplemental authorities was clearly articulated
during oral argument – namely, the Hospital argues that
this Court’s holdings in UC Health and SS Mystic [sic]
clearly hold: (1) that the Hospital has not waived its ar-
gument concerning the validity of the Union’s certifica-
tion, given its underlying challenge to the composition
of the Board, which cannot be waived; and (2) that the
Board’s delegation of “final, plenary authority” to the
Board’s Regional Directors via Consent Election
Agreements, when the Board itself lacked quorum, vio-
lated the National Labor Relations Act. (Citations omit-
ted.)
On April 29, 2016, the D.C. Circuit granted the Re-
spondent’s petition for review, finding that the Respond-
ent did not waive its argument that the Regional Director
lacked delegated authority to certify the Union during a
time when the Board lacked a quorum. Hospital of
Barstow, Inc. v. NLRB, 820 F.3d 440, 442–443 (D.C. Cir.
2016) (citing UC Health, 803 F.3d at 671–75; and SSC
Mystic, 801 F.3d at 308). With regard to the merits of
the Respondent’s quorum-based argument, however, the
court found that its decisions in UC Health and SSC Mys-
tic were not dispositive. Id. at 443–444. The court rea-
soned that UC Health and SSC Mystic each involved a
stipulated election agreement where the Regional Direc-
tor’s actions were subject to Board review, whereas this
case involves a consent election agreement where “the
parties agree that the Regional Director’s actions in con-
nection with the election will be final and unreviewable
by the Board.” Id. at 444 (citation omitted). Because the
Board had not yet addressed the merits of the Respond-
ent’s quorum-based argument in the context of a consent
election agreement, the court vacated the Board’s deci-
sion and remanded the case “to enable the Board to ren-
der an interpretation as to whether, under the quorum
statute, Regional Directors retained power over represen-
tation elections notwithstanding the lapse of a Board
quorum in the circumstances presented by this case.” Id.
at 441.
By letter dated June 6, 2016, the NLRB Office of the
Executive Secretary advised the parties that the Board
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
has decided to accept the remand.1 The Executive Secre-
tary further advised the parties that any statements of
position with respect to the issues raised by the remand
must be received by the Board on or before June 20,
2016. Thereafter, the Charging Party and the Respond-
ent each filed a statement of position.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
We accept as the law of the case the court’s finding
that the Respondent did not waive its argument that the
Regional Director lacked delegated authority to certify
the Union during a time when the Board lacked a quor-
um. Accordingly, we consider below the merits of the
Respondent’s quorum-based challenge to the authority of
the Regional Director in this matter.
The Board’s delegation of its decisional authority in
representation cases to regional directors dates back to
1961, and is expressly authorized by the Labor-
Management Reporting and Disclosure Act of 1959,
which amended Section 3(b) of the National Labor Rela-
tions Act to include the following language:
The Board is also authorized to delegate to its regional
directors its powers under section 9 to determine the
unit appropriate for the purpose of collective bargain-
ing, to investigate and provide for hearings, and deter-
mine whether a question of representation exists, and to
direct an election or take a secret ballot under subsec-
tion (c) or (e) of section 9 and certify the results thereof,
except that upon the filling of a request therefore with
the Board by any interested person, the Board may re-
view 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.
Pub. L. 86-257, 86th Cong., 1st Sess., § 701(b), 73 Stat.
519, 542; see Magnesium Casting Co. v. NLRB, 401 U.S.
137, 142 (1971) (by Section 3(b) Congress allowed the
Board to make a delegation of its authority over representa-
tion elections to the regional director).
This new authority was “‘designed to expedite final
disposition of cases by the Board, by turning over part of
its caseload to its Regional Directors for final determina-
tion.’” Magnesium Casting Co., 401 U.S. at 141 (quoting
Sen. Goldwater, a Conference Committee member); see
105 Cong. Rec. 19,770 (1959) (statement of Sen. Gold-
water that the new provision would enable the Board to
give Regional Directors the power “to act in all respects

1 On June 1, 2016, the parties filed a Joint Motion for Issuance of
Expedited Mandate asking the Court to “return the proceedings to the
agency, so that the Board may promptly reassume jurisdiction over the
proceedings.” The mandate issued on June 8, 2016.
as the Board would act,” subject to discretionary Board
review). Acting on that authority, the Board in 1961
delegated decisional authority in representation cases to
regional directors. See 26 Fed. Reg. 3911 (May 4,
1961). The Board also promulgated rules implementing
that delegation. See 29 C.F.R. Part 102, Subparts C, D
and E; Magnesium Casting, 401 U.S. at 138.2 The 1961
delegation and the Board’s implementing rules have re-
mained in effect without interruption for more than half a
century, and regional directors have routinely exercised
their delegated authority in accordance with those rules
throughout the intervening decades, including during
those periods when the Board itself lacked a quorum.3
Subpart X of the Board’s Rules and Regulations estab-
lishes policies and procedures applicable during any pe-
riod when the Board lacks a quorum. That subpart be-
gins with the following general statement of policy:
The 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.
Sec. 102.178 of the Board’s Rules and Regulations. With
regard to the processing of representation cases when the
Board lacks a quorum, Section 102.182 states that represen-
tation cases should be processed to certification “[t]o the
extent practicable”. Thus, consistent with Section 3(b) of
the Act, the 1961 Delegation, and the Board’s Rules and
Regulations, 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.
See SSC Mystic Operating Co., LLC d/b/a Pendleton Health

2 Shortly after the 1961 delegation, the Board described it as “a new
procedural step—and one of the most important in Board history.” 26th
Annual Report of the NLRB, at 1 (1961). “The significance of this
delegation was confirmed when the regional directors disposed of the
first 52 cases in an average of 34 days from filing to direction of elec-
tion,” when cases in the prior 6 months had averaged 113 days. Id. at 2.
3 The delegation provides, in relevant part:
Pursuant to section 3(b) of the National Labor Relations Act, as
amended, and subject to the amendments to the Board’s Statements of
Procedure, Series 8, and to its Rules and Regulations, Series 8, effec-
tive May 15, 1961, and subject to such further amendments and in-
structions as may be issued by the Board from time to time, the Board
delegates to its Regional Directors “its powers under section 9 to de-
termine the unit appropriate for the purpose of collective bargaining,
to investigate and provide for hearings, and determine whether a ques-
tion of representation exists, and to direct an election or take a secret
ballot under subsection (c) or (e) of section 9 and certify the results
thereof.” Such delegation shall be effective with respect to any petition
filed under subsection (c) or (e) of section 9 of the Act on May 15,
1961.
This delegation occurred when the Board had a quorum and has never been
withdrawn.
HOSPITAL OF BARSTOW, INC. 3
& Rehab. Ctr., 360 NLRB No. 68, slip op. at 1, fn. 1 (2014),
enfd. 801 F.3d 302 (D.C. Cir. 2015); UC Health, 360
NLRB No. 71, slip op. at 1, fn. 2 (2014), enfd. 803 F.3d 669
(D.C. Cir. 2015); and Bluefield Hospital Co., LLC, d/b/a
Bluefield Regional Medical Ctr. 361 NLRB No. 154, slip
op. at 2, fn. 5 (2014), enfd. --- F.3d ---, 2016 WL 2609605
(4th Cir. 2016). See also Manor at St. Luke Village Facility
Operations, LLC d/b/a The Manor at St. Luke Village, 361
NLRB No. 99, slip op. at 2 (2014); Durham School Ser-
vices, LP, 361 NLRB No. 66, slip op. at 1 (2014).
In the context of stipulated election agreements, the
D.C. Circuit Court of Appeals found the foregoing analy-
sis to be “a sensible interpretation that is in no way con-
trary to the text, structure, or purpose of the statute.” UC
Health, 803 F.3d at 675; see also SSC Mystic Operating
Co., 801 F.3d at 309 (“The Regional Director had author-
ity to conduct this election even though the Board had no
quorum.”) (citing UC Health, 803 F.3d at 673–79).
Moreover, even where a regional director’s decision be-
comes final because no party objects, the D.C. Circuit
found no basis for concern—“In that event, it is the par-
ties’ choice to leave the Regional Director’s decisions
unchallenged that effectively makes the election final.”
UC Health, 803 F.3d at 680. The question presented in
this case is whether the parties’ “choice to leave the Re-
gional Director’s decisions unchallenged” is any less
valid when it is manifested through a consent election
agreement, in which the parties agree that the Regional
Director’s decisions will be final. See, Section 102.62(a)
of the Board’s Rules and Regulations.
As noted above, under the 1961 Delegation, NLRB
Regional Directors have full authority to process repre-
sentation cases, conduct representation elections, and
certify the results thereof, subject to the Board’s authori-
ty to “review any action of a regional director” at the
objection of an interested person. See Section 3(b) of the
NLRA, 29 USC § 153(b). Thus, the Board has not dele-
gated its “final, plenary authority” to its regional direc-
tors. Board review, however, is not required in every
case—the parties may, at any time, waive their right to
request review, and in the absence of a request for re-
view, the regional director’s actions become final. See,
e.g., Section 102.67(g) of the Board’s Rules and Regula-
tions.
The Board also makes available to the parties three
types of informal consent procedures through which rep-
resentation issues may be resolved without recourse to
formal procedures. See Statement of the General Course
of Proceedings Under Section 9(c) of the Act, 79 F.R.
74469, 74471–72 (Dec. 15, 2014); Section 102.62(a)–(c)
of the Board’s Rules and Regulations. These procedures
are purely voluntary. One such procedure is a consent
election agreement, in which the parties agree to waive
their right to a pre-election hearing, agree to an election
among a defined unit of employees, and agree that the
regional director’s determination of post-election dis-
putes will be final. Section 102.62 (a) of the Board’s
Rules and Regulations. Thus, it is the parties’ agree-
ment, not the Board’s delegation, that gives the Regional
Director’s decision finality.4 Stated another way, the
distinguishing characteristic of a consent election agree-
ment is the parties’ express agreement to forgo Board
review and allow the Regional Director’s decisions to be
final. We do not see a meaningful distinction between
the “finality” accorded to the Regional Director’s certifi-
cation of representative based on the parties’ consent
election agreement and the “finality” accorded to the
Regional Director’s certification of 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.5 Indeed, given the parties’
unequivocal choice to proceed promptly to an election
and allow the Regional Director to resolve post-election
issues without direct Board review, we would find it par-
ticularly anomalous to nullify the parties’ choice solely
because, due to a lack of quorum, there was no Board
empowered to consider a request for review that the par-
ties had consciously and expressly chosen to forgo.
To conclude, in the underlying representation proceed-
ing in this case, the Respondent and the Union made a
conscious choice to enter into a consent election agree-
ment through which they obtained certain benefits, in-
cluding a prompt election and expeditious resolution of
any post-election issues. In so doing, they chose to forgo
their right to seek direct Board review of the Regional
Director’s actions, to which they otherwise were entitled,
and to allow the Regional Director’s decision in the rep-
resentation case to be final. In this regard, we find the
following analysis of the court in UC Health, supra, to be
particularly instructive:
In what turns out to be a critical distinction for the pur-
poses of this challenge, the statute preserves for the
Board the power to review “any action of a regional di-
rector” taken pursuant to that delegation, should a party

4 As the court noted regarding a stipulated election agreement in UC
Health, supra, “No decision of the Regional Director’s is ever final
under its own power. Only the acquiescence of the parties or the
Board’s ratification can give binding force to a Regional Director’s
determination.” 803 F.3d at 680. Similarly, in a consent election
agreement it is the “acquiescence of the parties” that gives binding
force to the Regional Director’s determination.
5 UC Health, 803 F.3d at 680 (“[I]t is the parties’ choice to leave the
Regional Director’s decisions unchallenged that effectively makes the
election final.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
object. 29 U.S.C. § 153(b). Thus, though the Board
may empower Regional Directors to oversee represen-
tation elections, the terms of the delegation authorized
under the Act provide that no Regional Director’s ac-
tions are ever final on their own; they only become fi-
nal if the parties decide not to seek Board review or if
the Board leaves those actions undisturbed. Id.
UC Health, 803 F.3d at 671 (emphasis added).6
Simply stated, the Board has not delegated “final, ple-
nary authority” to its regional directors. As noted above,
it is the parties’ agreement, not the Board’s delegation,
which gives a regional director’s decisions finality in the
context of a consent election agreement.7
Furthermore, notwithstanding the parties’ consent
election agreement to allow the regional director’s deci-
sions to be final, the Board may consider a challenge to
the validity of the regional director’s certification in a
subsequent related unfair labor practice proceeding8 if
there is a showing of fraud, misconduct, or such gross
mistakes as to imply bad faith or that the regional direc-
tor’s rulings were arbitrary or capricious.9

6 The United States Court of Appeals for the Fourth Circuit reached
a similar conclusion in NLRB v. Bluefield Hospital Co., 2016 WL
2609605 at *4 (May 6, 2016). Pursuant to the D.C. Circuit’s remand,
we have provided a fuller explanation for that result in this case.
7 Accordingly, contrary to Respondent’s argument to the Court, this
case does not involve any Board delegation of final authority like that
considered in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB,
564 F.3d 469 (D.C. Cir. 2009).
8 In order to challenge a certification of representative, an employer
must avail itself of the well-established test-of-certification procedures
by refusing to recognize or bargain with the union and defending
against the resulting unfair labor practice complaint by asserting an
affirmative defense that the decisions of the Board (or Regional Direc-
tor) in the representation proceeding were improper. See NLRB v.
Downtown Bid Services Corp., 682 F.3d 109, 112 (D.C. Cir. 2012)
(refusal to bargain “sets up judicial review of an election certification
that is otherwise insulated from direct review”).
9 See e.g. Economics Laboratory, Inc., 286 NLRB No. 66 (1987),
enf. denied on other grounds, 857 F.2d 931, 938 (3d Cir. 1988); Area
E-7 Hospital Association, 233 NLRB 798 (1977); The Pierre Apart-
ments, 217 NLRB 445, 446 (1975); Vanella Buick Opel, Inc., 196
NLRB 215 (1972) and cases cited therein.
This standard, which the Board has long applied in consent elec-
tions, should be distinguished from the standard applied in directed
elections or elections conducted pursuant to a stipulation for certifica-
tion upon consent election, where Board review is available to the
parties in the representation case. Section 102.67(g) of the Board’s
Rules and Regulations generally precludes re-litigation of any represen-
tation issue that was or could have been presented in the underlying
representation proceeding. However, this rule is not absolute even in
directed or stipulated elections. If a Respondent offers to adduce newly
discovered or previously unavailable evidence, or alleges other special
circumstances, the Board may reexamine the decision made in the
representation proceeding. See, e.g. Capay, Inc. d/b/a Farm Fresh to
You, 363 NLRB No. 142, slip op. at 1 (2016), citing Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
In view of the court’s determination that the Respond-
ent did not waive its right to challenge the certification
when it entered into negotiations with the Union, which
we have accepted as the law of the case, we have re-
viewed the underlying representation proceeding under
the standards described above. The Respondent does not
allege, nor do we find, any evidence of fraud, miscon-
duct, or such gross mistakes as to imply bad faith or that
the Regional Director’s rulings were arbitrary or capri-
cious. Accordingly, we reject the Respondent’s chal-
lenge to the validity of the certification in Case 31–RC–
080046.
Based on the foregoing interpretation of the Act and
the Board’s 1961 delegation of authority, we find that the
Regional Director retained the authority to process the
underlying representation proceeding, and to issue a cer-
tification pursuant to the parties’ consent election agree-
ment, notwithstanding the lapse of a Board quorum.
Moreover, in view of the law of the case that Respondent
did not waive its right to challenge the Regional Direc-
tor’s certification in this unfair labor practice proceeding,
which the Respondent raised only after entering into ne-
gotiations with the Union, we have reviewed the underly-
ing representation proceeding under the standards de-
scribed above. As previously noted, we have found no
basis to disturb the rulings of the Regional Director in the
representation case.
Having found that the Regional Director was author-
ized to process the underlying representation proceeding,
and having rejected the Respondent’s challenge to the
validity of the certification in Case 31–RC–080046, we
turn to the merits of the instant unfair labor practice cas-
es.
As noted above, in its April 29, 2016 decision in this
matter, the Court of Appeals vacated the Board’s deci-
sion and remanded the case “to enable the Board to ren-
der an interpretation as to whether, under the quorum
statute, Regional Directors retained power over represen-
tation elections notwithstanding the lapse of a Board
quorum in the circumstances presented by this case.”
Hospital of Barstow, Inc., 820 F.3d at 441. In doing so,
the court did not reach the merits of the Board’s unfair
labor practice findings and remedy in the Decision and
Order in this proceeding, reported at 361 NLRB No. 34
(2014). Id. at 442. Accordingly, we have considered the
judge’s decision regarding the unfair labor practice is-
sues and the record in light of the exceptions and briefs.
We have also considered the now-vacated Decision and
Order, and we agree with the majority rationale set forth
therein regarding the unfair labor practice findings.
Based on our review of the record in this matter, we
adopt and reissue the Board’s Decision and Order report-
HOSPITAL OF BARSTOW, INC. 5
ed at 361 NLRB No. 34, which is incorporated herein by
reference.10

10 In its brief in support of its exceptions to the judge’s decision, the
Respondent argued that the complaint was not valid because Acting
General Counsel Solomon was not lawfully appointed under Section
3(d) of the Act. The original Board decision rejected this argument for
the reasons stated in The Ardit Co., 360 NLRB No. 15 (2013). 361
NLRB No. 34, slip op. at 1, fn. 4. Thereafter, the D.C. Circuit issued
its opinion in SW General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015),
cert. granted, __ U.S.L.W. ____ (U.S. June 20, 2016), holding that
Acting General Counsel Solomon’s authority under the Federal Vacan-
cies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq., ceased on January
5, 2011, when the President nominated Mr. Solomon for the position of
General Counsel. Although the Respondent has not raised this FVRA
argument before the Board, on June 29, 2016, General Counsel Richard
F. Griffin, Jr., issued a Notice of Ratification, which states, in relevant
part,
I was confirmed as General Counsel on November 4, 2013. After ap-
propriate review and consultation with my staff, I have decided that
the issuance of the complaint in this case and its continued prosecution
are a proper exercise of the General Counsel’s broad and unreviewa-
ble discretion under Section 3(d) of the Act.
*****
For the foregoing reasons, I hereby ratify the issuance and continued
prosecution of the complaint.
Dated, Washington, D.C. July 15, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

This ratification effectively moots any possible FVRA challenge in this
matter. See, e.g. Bloomindale’s, Inc., 363 NLRB No. 172 (2016).