Durham School Services

National Labor Relations Board - Board Decisions

Oct 20, 2014

361 N.L.R.B. 702 (N.L.R.B. 2014)

702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Durham School Services, LP and International
Brotherhood of Teamsters, Local 991, Petition-
er. Case 15–RC–096096
October 20, 2014
ORDER DENYING MOTION FOR
RECONSIDERATION
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND SCHIFFER
On May 9, 2014, the National Labor Relations Board,
by a three-member panel, issued a Decision and Certifi-
cation of Representative in this case, reported at 360
NLRB 851. Pursuant to a Stipulated Election Agreement
signed by the parties and approved by the Regional Di-
rector on January 24, 2013, the election in this case was
conducted on February 22, 2013. The Employer filed
three timely objections.1 In Objection 3, the Employer
argued that in light of the decision of the United States
Court of Appeals for the District of Columbia Circuit in
Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013),
the Region lacked the authority “to investigate or con-
duct a hearing on the pending petition in this matter”
because the Board lacked a quorum.
Following an administrative investigation, the Region-
al Director issued a Report and Recommendation on Ob-
jections on March 25, 2013. The Regional Director rec-
ommended that Objections 1, 2, and 3 be dismissed in
their entirety and that a Certification of Representative be
issued. Regarding Objection 3, the Regional Director
reasoned that (1) the Board did not agree with the deci-
sion of the United States Court of Appeals for the Dis-
trict of Columbia Circuit in Noel Canning; (2) the Board
has a longstanding practice of not acquiescing in adverse
decisions by individual courts of appeals in subsequent
proceedings involving different parties; and (3) there was
a strong public interest in promptly addressing represen-
tation disputes. The Employer filed exceptions, and with
respect to Objection 3 reiterated that the Region lacked
the authority to process the petition because the Board
lacked a quorum, and “[w]hen the Board itself is without
authority to act, any delegated authority to its regional
directors is terminated during the period of incapacity.”
Employer’s brief in support of exceptions to report and
recommendation on objections at 14–15 (citing Laurel
Baye of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 473
(D.C. Cir. 2009)). The Board’s Decision and Certifica-
tion of Representative adopted without further comment
1 Member Miscimarra dissented in part from the Board’s Decision
and Certification of Representative. He would have remanded the case
for a hearing on Objection 1. He remains of that view, but he agrees
with the denial of Respondent’s motion for reconsideration for the
reasons expressed in the text.
the Regional Director’s recommendation to overrule Ob-
jection 3.
On June 26, 2014, the United States Supreme Court is-
sued its decision in NLRB v. Noel Canning, 134 S.Ct.
2550 (2014), finding that the President lacked the power
to make recess appointments to the Board on January 4,
2012. 134 S.Ct. at 2557. On July 16, 2014, the Employ-
er filed this motion for reconsideration, restating its ar-
guments in support of Objection 3 and making additional
arguments. Specifically, the Employer contends that the
Board lacked a quorum at the time the petition was filed,
when the election was held, and when the tally of ballots
issued. Based on the decision of the United States Court
of Appeals for the District of Columbia Circuit in Laurel
Baye, supra, the Employer further argues that the Board’s
delegation of decisional authority in representation cases
to Regional Directors was terminated when the Board
lost a quorum, and therefore the election should be set
aside and a new election should be directed. The Peti-
tioner filed a response.
At the outset, we observe that the Employer has in-
voked the administrative mechanism for challenging the
representation proceedings set forth in Section
102.65(e)(1) and (2) of the Board’s Rules and Regula-
tions. Those sections provide:

A party to a proceeding may, because of extraordinary
circumstances, move after the close of the hearing for
reopening of the record, or move after the decision or
report for reconsideration, for rehearing, or to reopen
the record . . . .
. . . .
Any motion for reconsideration or for rehearing pursu-
ant to this paragraph shall be filed within 14 days, or
such further period as may be allowed, after the service
of the decision or report.

Here, the Employer argues that reconsideration is war-
ranted in light of the decision of the Supreme Court in
Noel Canning finding that the challenged appointments
to the Board were not valid. Absent valid appointments,
the Board lacked a quorum at the time of the election and
tally of ballots in this matter. Accordingly, the Employer
contends that absent a Board quorum, the Regional Di-
rector’s delegated authority to conduct representation
proceedings ceases to exist.
We note that the Employer’s motion suffers from pro-
cedural infirmities that potentially preclude review.2
2 First, as noted above, the Employer entered into a Stipulated Elec-
tion Agreement in this case in which it waived the right to a hearing
and expressly agreed to the conduct of a secret ballot election. See
ManorCare of Kingston, PA, LLC, 361 NLRB 186, 186 fn. 1 (2014).
361 NLRB No. 66

DURHAM SCHOOL SERVICES, LP 703
Without resolving these potential infirmities, however,
and having duly considered the matter, we deny the Em-
ployer’s motion for reconsideration on the merits.3 Even
though the Board lacked a quorum at the time the Re-
gional Director conducted the election, Section 102.178
of the Board’s Rules and Regulations provides that “dur-
ing any period when the Board lacks a quorum normal
Agency operations should continue to the greatest extent
permitted by law.”4 In addition, in 1961, the Board dele-
gated decisional authority in representation cases to Re-
gional Directors pursuant to the 1959 amendment of Sec-
tion 3(b) of the National Labor Relations Act expressly
authorizing such a delegation. Pub. L. 86–257, 86th
Cong., 1st Sess., § 701(b), 73 Stat. 519, 542; 26 Fed,
Reg. 3911 (1961); see Magnesium Casting Co. v. NLRB,
401 U.S. 137, 142 (1971) (by Section 3(b) Congress al-
lowed the Board to make a delegation of its authority
over representation elections to the regional director).
Although the Employer entered into the Agreement the day before the
issuance of the D.C. Circuit’s opinion in Noel Canning, the issue of the
constitutional validity of the President’s recess appointments was al-
ready widely known at the time. Second, the Employer’s motion was
not filed within 14 days of the Board’s Decision and Certification of
Representative as prescribed in Sec. 102.65(e)(2). Similarly, assuming
(without deciding) that the Supreme Court’s decision in Noel Canning
constitutes “extraordinary circumstances” within the meaning of the
Sec. 102.65(e)(1), the Employer’s motion was not filed within 14 days
of the Supreme Court’s decision.
3 We observe that although the Employer has previously raised the
delegation argument to the Regional Director and to the Board, neither
the Regional Director’s report on objections nor the Board’s Decision
and Certification directly addressed it.
4 See also Sec. 102.182 (representation cases should be processed to
certification “[t]o the extent practicable”).
This delegation occurred when the Board had a quorum
and has never been revoked.
Further, in New Process Steel v. NLRB, 560 U.S. 674
(2010), the Supreme Court declined to adopt the District
of Columbia Circuit’s view regarding the effect that the
lack of a Board quorum has on previous delegations of
authority to nonmembers, such as Regional Directors.
Although the Supreme Court did not expressly rule on
the question, it noted 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.” 560 U.S. at 684 fn. 4 (emphasis added). In-
deed, since New Process, every court of appeals that has
considered this issue has held that prior Board delega-
tions of authority to nonmembers do not lapse during a
loss of quorum by the Board. See Kreisberg v. Health-
bridge Mgmt., LLC, 732 F.3d 131, 140 (2d Cir. 2013);
Frankl v. HTH Corp., 650 F.3d 1334, 1354 (9th Cir.
2011), cert. denied 132 S.Ct. 1821 (2012); Osthus v.
Whitesell Corp., 639 F.3d 841, 844 (8th Cir. 2011);
Overstreet v. El Paso Disposal, LP, 625 F.3d 844, 853
(5th Cir. 2010). The Supreme Court’s decision in Noel
Canning, supra, does not state anything to the contrary.
Finally, this case does not raise a quorum issue regard-
ing the Board panel that certified the Union, because the
panel consisted entirely of confirmed members.
The Employer’s Motion for Reconsideration is there-
fore denied.