By Ronald Miller, J.D. On remand from the D.C. Circuit, a three-member panel of the NLRB accepted as the law of the case the appeals court’s finding that an employer did not waive its argument that an NLRB regional director lacked delegated authority to certify a union during a time when the Board lacked a quorum. However, the Board concluded that it was the parties’ choice to enter into a consent election agreement, not the Board’s delegation, which gave the regional director’s decision finality in the context of the consent election agreement. Consequently, the Board rejected the employer’s challenge to the validity of the certification of a bargaining unit based on the Board’s lack of a quorum, where it failed to allege any evidence of fraud, misconduct, or gross mistakes to imply bad faith, or that the regional director’s ruling was arbitrary or capricious (Hospital of Barstow, Inc. dba Barstow Community Hospital, July 15, 2016). Delegation of decisional authority. The Board’s delegation of its decisional authority in representation cases to regional directors dates back to 1961, and is expressly authorized by the LMRDA. The Board has also promulgated rules implementing that delegation. The 1961 delegation and the Board’s implementing rules have remained in effect without interruption for more than 50 years, 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. Subpart X of the Board’s Rules and Regulations establishes policies and procedures applicable during any period when the Board lacks a quorum. With regard to the processing of representation cases when the Board lacks a quorum, Section 102.182 states that representation cases should be processed to certification "[t]o the extent practicable." Thus, consistent with Sec. 3(b) of the NLRA, the 1961 delegation, and the Board’s Rules and Regulations, regional directors remain vested with the authority to conduct elections and certify their results, regardless of the Board’s composition at any given moment. Consent election agreement. In the context of stipulated election agreements, the D.C. Circuit found the Board’s analysis to be "a sensible interpretation that is in no way contrary to the text, structure, or purpose of the statute." However, the question presented in this case is whether the parties’ "choice to leave the Regional 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. Under the 1961 delegation, regional directors have full authority to process representation cases, conduct representation elections, and certify the results thereof, subject to the Board’s authority to "review any action of a regional director" at the objection of an interested person. Thus, the Board has not delegated its "final, plenary authority" to its regional directors. However, under informal consent election procedures, 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 disputes will be final. Thus, it is the parties’ agreement, not the Board’s delegation, that gives regional director’s decisions finality. Under a consent election agreement the parties make a conscious choice to forego their right to seek direct Board review of the regional director’s actions and to allow the decision in the representational case to become final. Even so, the Board may consider a challenge to the validity of the regional director’s certification in a subsequent related unfair labor practice proceeding if there is a showing of fraud, misconduct, or such gross mistakes as to imply bad faith or that the regional director’s rulings were arbitrary or capricious. In this instance, the employer did not allege any evidence of fraud, misconduct, or such gross mistakes as to imply bad faith or that the regional director’s rulings were arbitrary or capricious. Consequently, the Board found that the regional director retained the authority to process the underlying representation proceeding and to issue a certification pursuant to the parties’ consent election agreement, notwithstanding the lapse of a Board quorum. Accordingly, the Board rejected the employer’s quorum-based challenge to the authority of the regional director here. Merits. Thereafter, the Board turned to the merits of the unfair labor practice cases, noting that, in vacating and remanding the Board’s earlier decision, the appeals court did not reach the merits of the Board’s unfair labor practice findings. Having reviewed that decision, the Board agreed with the majority rationale, and adopted and reissued that decision finding that the employer acted unlawfully 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 directed unit employees to stop using the union-provided form to document circumstances they believed were unsafe for patients or could jeopardize their nursing licenses. Additionally, the Board found that the employer unlawfully refused to bargain by unilaterally implementing an online training program to replace onsite, instructor-led training, and by limiting the number of hours that employees could be paid for completing the program.
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