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National Labor Relations Board (NLRB) regional directors retained their authority to supervise union representation cases during a 19-month period when the board lacked a quorum, the U.S. Court of Appeals for the District of Columbia Circuit ruled.
Employers were buoyed by the U.S. Supreme Court's 2014 decision in NLRB v. Noel Canning (134 S. Ct. 2550), which ruled that President Obama's "recess appointments" of three members to the five-member National Labor Relations Board (NLRB) on Jan. 3, 2012 violated the Recess Appointments Clause of the U.S. Constitution. Therefore, decisions and actions of that board were invalid until Aug. 3, 2013 when a constitutionally-appointed board was confirmed by the Senate. Employers were hopeful that the invalidity of the actions of the "recess board" extended as well to the actions of the NLRB's regional directors in administering and certifying the results of union representation elections during that period.
Those hopes were dashed by this decision, in which the appellate court held that the NLRB's regional directors had been delegated authority by the board since 1961 to administer and certify the results of union representation elections, and the court was bound to defer to the board's interpretation of the National Labor Relations Act (NLRA) that such authority prevailed even during periods where the quorum-less board itself lacked the authority to act.
UC Health operates a hospital with inpatient and outpatient medical care near the University of Cincinnati. In March 2013, while the board lacked a quorum, the UC Health public safety union filed a petition for election seeking to represent a unit of security officers. The parties stipulated to an election and an appropriate bargaining unit. On April 13, 2013, the union prevailed by a slim margin and on April 24 the regional director certified the election results without objection. Thereafter, UC Health refused to bargain, claiming that the regional director lacked the authority to act. The board ruled the company must recognize the union because "Regional Directors remain vested with the authority to conduct and certify their results, regardless of the Board's composition at any given moment." UC Health petitioned for review to the D.C. Circuit.
The D.C. Circuit deferred to the board's "reasonable interpretation" of the NLRA and upheld the authority of the regional directors to act even where the board lacked a quorum.
The court ruled that the board's interpretation of its authority under the NLRA was entitled to deference. The court held that the board's interpretation here was a "permissible construction of the statute" to which a court must defer as being reasonable and consistent with the statute's purpose. The court noted that elections should be conducted under the delegated authority of the regional directors, while review still may be blocked if the board lacks a quorum to act.
Thus, the court gave deference to the board's authority to continue to recognize its 1961 delegation of power to regional directors to administer and conduct representation elections even during periods when the board itself lacked a quorum to act.UC Health v. NLRB, D.C. Cir., No. 14-1049 (Sept. 18, 2015).Professional Pointer: While it would have been nice if the D.C. Circuit had extended the board's invalidity for lack of a quorum to the actions of its regional directors, in practice it would have created a temporary backlog of pending elections. Perhaps of greater long-term significance is the broad deference to the agency demonstrated here.
Hal Coxson is a shareholder in the Washington, D.C. office of Ogletree Deakins, a labor and employment law firm representing management.
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