On July 15, 2016, the Board issued its decision in Hospital of Barstow, Inc., 364 NLRB No. 52, on remand from the D.C. Circuit (Hospital of Bartow, Inc. v. NLRB, 820 F.3d 440), addressing the issue of whether the Regional Director retained authority, despite the Board’s lack of a quorum in 2012 and 2013, to certify the union after an election held pursuant to a consent election agreement.

The Board affirmed the Regional Director’s certification on the basis that, pursuant to the Board’s 1962 delegation to regional directors of decisional authority in representation cases, the Regional Director still retained authority to process representation petitions. Moreover, because the election was held pursuant to a consent election agreement, the parties agreed to waive their right to a pre-hearing haearing, agreed to an election among a defined unit of employees, and agreed that the regional director’s determination of post-election disputes will be final. In other words, “it is the parties’ agreement, not the Board’s delection, that gives the Regional Director’s decision finality.” On that basis, the Board found no basis for finding that the Regional Director lacked authority to certify the union as the exclusive collective bargaining representative:

[G]iven the parties’ unequivocal choice to proceed promptly to an election and allow the Regional Director to resolve post-election issues without direct Board review, we would find it particularly anomalous to nullify the parties’ choice solely because, due to a lack of quorum, there was no Board empowered to consider a request for review that the parties had consciously and expressly chosen to forgo.