PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1203

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

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.

On Application for Enforcement of an Order of the National Labor 

Relations Board. (10-CA-093042)

Argued: January 26, 2016 Decided: May 6, 2016 

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.

ARGUED: Micah Prieb Stoltzfus Jost, NATIONAL LABOR RELATIONS 

BOARD, Washington, D.C., for Petitioner. Kaitlin Ann Kaseta, 

Charleston, South Carolina, for Respondents. ON BRIEF: Jill 
2

Ann Griffin, Supervisory Attorney, Richard F. Griffin, Jr., 

General Counsel, Jennifer Abruzzo, Deputy General Counsel, John 

H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy 

Associate General Counsel, NATIONAL LABOR RELATIONS BOARD, 

Washington, D.C., for Petitioner. Bryan T. Carmody, CARMODY & 

CARMODY LLP, Glastonbury, Connecticut, for Respondents.
3

AGEE, Circuit Judge:

This case involves a labor dispute between two West 

Virginia hospitals, Bluefield Regional Medical Center and 

Greenbrier Valley Medical 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”), 29 U.S.C. § 151 et seq., by refusing to bargain with the 

Union. The Board then brought an application for enforcement

before this Court, which the Hospitals oppose. For the reasons 

set forth below, we grant the Board’s application for 

enforcement. 

I.

A.

To place 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. 29 U.S.C. §§ 158, 160. In 
4

addition, the Board has principal authority to conduct 

representation proceedings, in which employees may select a 

collective bargaining representative. Id. § 159(b), (c). The 

Act expressly permits the Board to delegate to its Regional 

Directors authority to oversee representation elections and to 

certify election results. Id. § 153(b). The Board delegated 

that general authority to its Regional Directors in 1961, and 

they have been administering and certifying results of 

representation elections since that time. 26 Fed. Reg. 3911 

(May 4, 1961).

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. 29 U.S.C. § 153(b). 

However, the parties may waive that right and agree to give the 

Regional Director’s decision finality. See 29 C.F.R. § 102.62.1 

In the absence of such an agreement, a Regional Director’s 

actions only become final if the parties decline to seek Board 

review or if the Board, upon review, does not alter the Regional 

Director’s decision. 29 U.S.C. § 153(b).2 

 1 Unless otherwise indicated, all citations to the Code of 

Federal Regulations are to the version in effect at the time the 

described events took place. 2 Parties, upon mutual consent, may give up their right to 

plenary Board review by entering into one of several standard 

(Continued)
5

Section 3(a) of the Act requires that the Board be composed 

of five members appointed by the President upon advice and 

consent of the Senate. Id. § 153(a). “[T]hree members of the 

Board shall, at all times, constitute a quorum of the Board[.]” 

Id. § 153(b).

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. Id. § 153(b). This delegation of cases across 

various panels is intended to allow the Board to process labor 

disputes more efficiently. The panel delegation survives the 

expiration of up to two of the five Board members’ terms, such 

that the Board may continue to adjudicate unfair labor practice 

disputes pending appointment of new members so long as the 

three-member Board quorum requirement is met. Id. § 153(b).

 

election agreements. See 29 C.F.R. § 102.62. The parties in 

this case chose to enter into a “[c]onsent election agreement 

with final regional director determinations of post-election 

disputes,” meaning that the rulings and determinations of the 

Regional Director with respect to a union election “shall be 

final . . . with the same force and effect, in that case, as if 

issued by the Board.” Id. § 102.62(a); see also J.A. 15-20. 

Distinct from a consent election agreement is a stipulated 

election agreement, which provides that the representation 

“election shall be conducted under the direction and supervision 

of the regional director,” but retains “Board review of the 

regional director’s resolution of post-election disputes.” 29

C.F.R. § 102.62(b).
6

As of January 3, 2012, the terms of three of the Board’s 

five members had expired. Asserting authority under the Recess 

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

President appointed three persons to the Board to fill these 

vacancies on January 4, 2012, during a brief recess between the 

Senate’s twice-weekly pro forma sessions. In NLRB v. Noel 

Canning, 134 S. Ct. 2550 (2014), the Supreme Court held those 

appointments unconstitutional as not within the President’s 

powers. Id. at 2578. These Board seats remained vacant until 

August 5, 2013 when the Senate confirmed new Board members for 

the seats. By reason of the three vacancies, the Board was 

composed of only two members from January 3, 2012 through August 

5, 2013 and thus lacked a quorum as required by the Act. During 

this period, Regional Directors continued to oversee 

representation elections and certify election results pursuant 

to the 1961 delegation of authority from the Board. 

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 
7

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 Regional Director held a representation election at 

each hospital on August 29 and 30, 2012, and the Union prevailed 

in both elections. In response, the Hospitals filed several 

 3 It is undisputed that the Hospitals are “employer[s]” 

engaged in “commerce,” and the Union qualifies as a “labor 

organization,” under the definitional provisions of the Act. 29 

U.S.C. § 152(2), (5), (6), (7). 

4 The Agreements waived the Hospitals’ right to pre-election 

hearings, which are otherwise mandatory. See 29 U.S.C. 

§ 159(c)(1).
8

objections to the election results. The Regional Director 

issued notices of hearings for the objections and gave written 

notification to the Hospitals that the Board’s rules and 

regulations required the Hospitals to submit evidence in support 

of their objections within specific time limits. See 29 C.F.R. 

§ 102.69. The Hospitals did not produce any evidence in support 

of their objections, nor did they seek an extension of time to 

do so. On September 24, 2012, the Regional Director overruled 

the Hospitals’ objections and withdrew the hearing notices, 

actions that amounted to final rulings on the objections under

the Agreements. The Regional Director certified the Union as 

the registered nurses’ collective bargaining representative the 

next day. See J.A. 38-41.

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 29 U.S.C. § 158(a)(1), 

(a)(5). The Hospitals answered by admitting their refusal to 

bargain, but claiming an oral agreement between the Union and 

the Hospitals required arbitration of election disputes and 
9

precluded the Regional Director from overruling their election 

objections.5 

While the unfair labor practice proceedings were ongoing, 

the United States Court of Appeals for the District of Columbia 

Circuit issued its decision in NLRB v. Noel Canning, 705 F.3d 

490 (D.C. Cir. 2013), aff’d on other grounds, 134 S. Ct. 2550 

(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. The 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, 

134 S. Ct. 2550 (2014), affirming, albeit on different grounds, 

 5 During the unfair labor practice proceedings, the 

Hospitals submitted a sworn statement, stating the Hospitals and 

the Union agreed orally that the parties would submit election 

objections to the Board and an arbitrator concurrently, and that 

the agreement was reduced to writing in a document entitled 

“Election Procedure Agreement.” However, no written agreement 

was offered to the Board or otherwise made a part of the record. 
10

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 Regional 

Director’s appointment was invalid because the Board’s Acting 

General Counsel was not validly holding his position at the time 

he appointed the Regional Director.

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. 
11

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 29 U.S.C. § 160(e). We have jurisdiction in this 

appeal under that statute. 

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. 

Primarily, 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 election objections because a 

separate contract with the Union precluded such a requirement. 
12

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 

raised 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 Board had no 

quorum even without Senate approval for the 

President's appointments until the Supreme Court 

handed down its decision in Noel Canning fourteen 
13

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 argument 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 
14

Regional Director “were void ab initio” because they occurred 

when the Board lacked a quorum. Opening 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 (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 (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 Act as 

 6 The Board correctly points out that the Supreme Court has, 

in dictum, implicitly acknowledged that delegation to Regional 

Directors survives the loss of a Board quorum in New Process 

Steel, L.P. v. NLRB, 560 U.S. 674 (2010). The issue in that 

case was whether two Board members could continue to act on 

behalf of the Board after the Board itself lost a quorum. Id.

at 682-83. While the Supreme Court made clear that the Board 

lost the authority to act, the Court also observed that its 

“conclusion that the delegee group ceases to exist once there 

are no longer three Board members to constitute the group does 

not cast doubt on the prior delegations of authority to nongroup 

members, such as, the regional directors or the general 

counsel.” Id. at 684 n.4. We give great weight to Supreme 

Court dicta. See McCravy v. Metro. Life Ins. Co., 690 F.3d 176, 

182 n.2 (4th Cir. 2012) (assuming that the pertinent language is 

dictum, “we cannot simply override a legal pronouncement 

endorsed . . . by a majority of the Supreme Court.”); United 

(Continued)
15

authorizing Regional Directors to exercise delegated authority 

during a period in which the Board lacks a quorum. Bluefield 

Hosp. Co., 361 N.L.R.B. No. 154 (2014).

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 test set out in

Chevron. See Montgomery Cty., Md. v. F.C.C., 811 F.3d 121, 2015 

WL 9261375, at *6 (4th Cir. Dec. 18, 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 

 

States v. Fareed, 296 F.3d 243, 246 (4th Cir. 2002) (following 

“dictum endorsed by six justices” of the Supreme Court). 

Because the Chevron deference argument resolves this issue, we 

do not specifically address the effect of New Process Steel.
16

statute.” Id. at 843. If it is, then we must defer. Id. at 

844; see also City of Arlington v. FCC, 133 S. Ct. 1863, 1870-71 

(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) of section 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. . . .

29 U.S.C. § 153(b). Nothing in the statute addresses the effect 

of the Board’s loss of quorum on a prior delegation of authority 

to Regional Directors. See Id. As Congress has not plainly 

addressed the issue, we must engage in the second part of the 
17

Chevron analysis: whether the Board’s interpretation that the

delegation of authority to Regional Directors survives despite 

the absence of a Board quorum is a reasonable one to which we 

owe deference. 

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 quorum requirement. 26 NLRB Ann. Rep. 1 (1962). The 

Board has never rescinded that delegation. 

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.” 29 C.F.R. 

§ 102.178; see also id. § 102.182 (“During any period when the 

Board lacks a quorum, . . . [t]o the extent practicable, all 

representation cases should continue to be processed and the 

appropriate certification should be issued by the Regional 

Director[.]”).

Only one other Circuit Court of Appeals, the District of 

Columbia Circuit, has addressed this precise issue of whether 

the Board’s interpretation of the Act, which delegated authority 
18

to Regional Directors remains intact during the absence of a 

Board quorum, is reasonable and entitled to Chevron deference. 

UC Health, 803 F.3d 669; 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 have 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.
19

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 29 C.F.R. 

§ 102.62(b) (describing “stipulated election agreements”). The 

parties in this case signed Consent Election Agreements, which 

vested in the Regional Director final authority to oversee the 

representation elections and certify their results, and it 

foreclosed Board review over representation proceedings. See

Id. § 102.62(a) (describing “Consent Election Agreement”). This 

distinction makes no difference, as we simply apply the contract 

terms of the Agreements. 

Agreement by contract is among the ways to relinquish the 

right to plenary Board review and confer on the Regional 

Director final authority over representation proceedings. UC 

Health, 803 F.3d at 680 (“Only the acquiescence of the parties 

or the Board’s ratification can give binding force to a Regional 

Director’s determination.”). This is a matter of contract law, 

not administrative law. NLRB v. MEMC Elec. Materials, Inc., 363 

F.3d 705, 709 (8th Cir. 2004) (stating the Board was “on sound 

ground in emphasizing that parties are bound by an approved 
20

election agreement, just as they are bound by other contracts”). 

“When asked to approve election agreements, the Board's longstanding approach has been to honor the parties' freedom of 

contract, unless their contract is contrary to the statute or 

Board policy.” Id. By signing the Agreements, the Hospitals 

signed a contract in which they agreed to give up Board review 

and to vest the Regional Director with authority to issue final 

decisions at the representation phase. The Hospitals are bound 

by that contract just as they are bound by other contracts.

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

 7 Although we acknowledge the recent decision of the D.C. 

Circuit in Hosp. of Barstow, Inc. v. N.L.R.B., No. 14-1167, 2016 

WL 1720366 (D.C. Cir. Apr. 29, 2016), we find it inapposite here 

for two distinct reasons. First, no petition for review was 

filed in this case. See 29 U.S.C. § 160(f) (requiring a 

petition for review to be in writing and filed with the Court). 

Second, in Hospital of Barstow, the Board did not offer an 

interpretation of the statutory quorum provision that would 

raise Chevron deference on appeal, concluding only “that the 

challenge to the Regional Director’s authority had been waived.” 

Id. at *3. In this case, however, the Board argued waiver and 

provided an interpretation of the statute whereby the Regional 

Director could act in the absence of a Board quorum. For the 

reasons discussed, we owe that interpretation Chevron deference.
21

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 29 U.S.C. § 153(d) (limiting temporary 

appointment to “forty days when the Congress is in session 

unless a nomination to fill such vacancy shall have been 

submitted to the Senate”). We do not find this argument 

persuasive because it is the Board, not the General Counsel, 

which has final authority to appoint a Regional Director. And 

the Board did, in fact, approve Harrell as the Regional 

Director. 

The Act provides that “[t]he Board shall appoint . . . 

regional directors.” 29 U.S.C. § 154(a); see also 29 C.F.R. 

§ 102.5 (“The term regional director as used herein shall mean 

the agent designated by the Board as the regional director for a 

particular region[.]”). The General Counsel is vested by the 

Act with “general supervision” over employees in the regional 

offices. 29 U.S.C. § 153(d). The Board has implemented rules 

and regulations delegating certain appointive responsibilities 
22

to the General Counsel, but as to Regional Directors a

designation by the General Counsel is valid “only upon approval 

of the Board.” 67 Fed. Reg. 62992-93 (Oct. 1, 2002); see also

24 Fed. Reg. 6666-67 (Aug. 15, 1959). In other words, the Board 

must ratify the Regional Director’s appointment and any 

“appointment” by the General Counsel is of no effect until the 

Board acts. For that reason, even if we assume Solomon’s 

appointment as Acting General Counsel had lapsed at the time of 

the Regional Director’s appointment, it makes no difference. It 

is the Board -– not the General Counsel -- that retains final 

authority over the appointment of a Regional Director, and the 

Board approved the appointment of the Regional Director in this 

case. Accordingly, the Hospitals’ argument fails.8

 8 Before the Board, the Hospitals also argued the Acting 

General Counsel “lacked the authority to prosecute the 

consolidated complaint.” Bluefield Hosp., 361 N.L.R.B. No. at 2 

n.5. The Board rejected this argument, and the Hospitals do not 

raise this issue on appeal, a point they confirmed at oral 

argument. Oral Argument at 18:05-18:15. Although we are fully 

cognizant of the decisions in SW General, Inc. v. NLRB, 796 F.3d 

67, 83 (D.C. Cir. 2015), and Hooks v. Kitsap Tenant Support 

Services, Inc., No. 13-35912, 2016 WL 860335 (9th Cir. Mar. 7, 

2016), the Hospitals have waived any argument in that regard. 

Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 604 n.4 

(4th Cir. 2010) (concluding that an argument not raised in the 

opening brief is waived); see also SW General, 796 F.3d at 83 

(“We address the [Federal Vacancies Reform Act (“FVRA”)] 

objection in this case because the petitioner raised the issue.

. . . We doubt that an employer that failed to timely raise an 

FVRA objection -- regardless of whether enforcement proceedings 

are ongoing or concluded -- will enjoy the same success.”). 
23

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.” 29 U.S.C. 

§ 160(e). 

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. 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. 
24

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.” 29 U.S.C. § 158(a)(1), (5). The Hospitals admit 

they refused to bargain with the Union, but contend that the 

Board erred in its decision to uphold the results of the 

representation elections because the Regional Director should 

not have overruled their objections to the election results on 

procedural grounds. 

“‘Congress has entrusted the Board with a wide degree of 

discretion in establishing the procedure and safeguards 

necessary to insure the fair and free choice of bargaining 

representatives by employees.’” NLRB v. Md. Ambulance Servs., 

Inc., 192 F.3d 430, 433 (4th Cir. 1999) (quoting NLRB v. A.J. 

Tower Co., 329 U.S. 324, 330 (1946)); see also NLRB v. Waterman 

Steamship Corp., 309 U.S. 206, 226 (1940) (“The control of the 

election proceeding, and the determination of the steps 

necessary to conduct [an] election fairly were matters which 

Congress entrusted to the Board alone.”). “The results of a 
25

Board-supervised representation election are presumptively 

valid,” NLRB v. Flambeau Airmold Corp., 178 F.3d 705, 707 (4th 

Cir. 1999), and we will overturn a representation election only 

where the Board has clearly abused its discretion, Elizabethtown 

Gas Co. v. NLRB, 212 F.3d 257, 262 (4th Cir. 2000). 

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 Regional Director the 

evidence available to it to support the objections.” 29 C.F.R. 

§ 102.69(a)(emphasis added). The NLRB’s “casehandling manual” 

provides: “Absent the timely receipt of sufficient evidence, the 

Regional Director should overrule the objections without any 

further processing.” Nat’l Labor Relations Bd., Casehandling 

Manual (Part 2, Representation Proceedings) § 11392.6 (2014). 

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 
26

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 
27

record. See 9 U.S.C. § 2 (requiring agreements to arbitrate to 

be in writing under the Federal Arbitration Act). 

We therefore conclude the Hospitals’ sole challenge to the 

merits of the Board’s final decision to be baseless. 

III.

For the reasons set out above, we grant the Board’s 

application for enforcement of its order.

APPLICATION FOR ENFORCEMENT GRANTED