NATIONAL LABOR RELATIONS BOARD, Pеtitioner, 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.
No. 15-1203
United States Court of Appeals, Fourth Circuit
Decided: May 6, 2016
821 F.3d 534
Moreover, the stipulation did not prejudice Morva for substantially the same reason. Jury Instruction No. 9, which was charged without objection, provides that “[a] prisoner of a state or local correctional facility remains a prisoner at all times until he is released from that status by the proper state authority. A prisoner who escapes from custody retains the status of prisoner during the entire course of such an unauthorized absence.” J.A. 492. This instruction is almost identical to the one charged in Mu‘Min. See 389 S.E.2d at 894 n. 7. So even without the stipulation, the Commonwealth could have proven that Morva‘s killing of McFarland satisfied the elements of capital murder under section 18.2-31(3). As a result, Morva‘s claim that his counsel was ineffective is not substantial and was properly dismissed for procedural default.
III.
For the foregoing reasons, we affirm the district court‘s judgment.
AFFIRMED
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.
AGEE, Circuit Judge:
This case involves a labor dispute between two West Virginia hospitals, Bluefield Regional Medical Center and Greenbrier Valley Medicаl 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“),
I.
A.
To plaсe 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.
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.
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.
As of January 3, 2012, the terms of three of the Board‘s five members had expired. Asserting authority under the Recess Appointments Clause,
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 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 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
While the unfair labor practice proceedings were ongoing, the United States Court of Appeals for the District of Columbia Circuit issued its decision in Noel Canning v. NLRB, 705 F.3d 490 (D.C.Cir.2013), aff‘d on other grounds, 134 S.Ct. 2550, 189 L.Ed.2d 538 (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. Thе 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, — U.S. —, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), affirming, albeit on different grounds, 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 Regionаl Director‘s appointment was invalid because the Board‘s
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. 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
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. Primаrily, 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 еlection objections because a separate contract with the Union precluded such a requirement. 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 raisеd 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 Boаrd had no quorum even without Senate approval for the President‘s appointments until the Supreme Court handed down its decision in Noel Canning fourteen 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 аrgument 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 Regional Director “were void ab initio” because they occurred when the Board lacked a quorum. Opеning 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, 130 S.Ct. 2635, 177 L.Ed.2d 162 (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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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
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 tеst set out in Chevron. See Montgomery Cty., Md. v. F.C.C., 811 F.3d 121, 129 (4th Cir. 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 statute.” Id. at 843. If it is, then we must defer. Id. at 844; see also City of Arlington v. FCC, — U.S. —, 133 S.Ct. 1863, 1870-71, 185 L.Ed.2d 941 (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) ofsection 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 . . . .
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 quo
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.”
Only one other Circuit Court of Appeals, the District of Columbia Circuit, has addressed this precise issue of whether the Board‘s interpretation оf the Act, which delegated authority to Regional Directors remains intact during the absence of a Board quorum, is reasonable and entitled to Chevron deference. 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). 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 hаve 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. 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
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
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
The Act provides that “[t]he Board shall appoint . . . regional directors.”
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.”
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. 154 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.
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.”
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 Regiоnal Director the evidence available to it to support the objections.”
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 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 record. See
We therefore conclude the Hospitals’ sole challenge to the merits of the Board‘s final decision to be baseless.
For the reasons set out above, we grant the Board‘s application for enforcement of its order.
APPLICATION FOR ENFORCEMENT GRANTED