                                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
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.




                               2
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

                                            3
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)
                                                     4
      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).


                                       5
       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




                                      6
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).


                                              7
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

                                            8
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.


                                     9
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.

                                         10
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.

                                             11
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

                                      12
       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


                                                  13
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)
                                               14
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.


                                                    15
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


                                       16
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

                                 17
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.



                                  18
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

                                            19
election agreement, just as they are bound by other contracts”).

“When asked to approve election agreements, the Board's long-

standing    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.


                                        20
                                                      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

                                                      21
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




       8Before 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.”).


                                        22
                                      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.




                                      23
                                           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

                                           24
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

                                          25
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



                                            26
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




                                   27
