2850 Grand Island Boulevard Operating Company LLC d/b/a Elderwood at Grand Island

National Labor Relations Board - Board Decisions

Apr 21, 2017

03-RC-184298 (N.L.R.B. Apr. 21, 2017)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
2850 GRAND ISLAND BOULEVARD
OPERATING COMPANY LLC D/B/A
ELDERWOOD AT GRAND ISLAND
Employer
and Case 03-RC-184298
1199 SEIU UNITED HELATHCARE
WORKERS EAST
Petitioner
ORDER
The Employer’s Request for Review of the Acting Regional Director’s Supplemental
Decision and Order on Challenged Ballots and Objections is denied as it does not raise any
substantial issues warranting review.1

1 In denying review, we do not rely on the Acting Regional Director’s citation to Lily
Transportation Corp., 352 NLRB 1028 (2008), a two-member Board decision. See New Process
Steel, L.P. v. NLRB, 560 U.S. 674 (2010). Acting Chairman Miscimarra agrees with the denial
of review based on the record presently before the Board and, regarding the question of whether
the Employer’s licensed practical nurse (LPN) Team Leaders are statutory supervisors under
Sec. 2(11) of the Act, consistent with the principles set forth in Acting Chairman Miscimarra’s
separate opinions in Buchanan Marine, LP, 363 NLRB No. 58, slip op. at 3-10 (2015) (Member
Miscimarra, dissenting); G4S Government Solutions, Inc., 363 NLRB No. 113, slip op. at 4-7
(2016) (Member Miscimarra, dissenting); LakeWood Health Center, 365 NLRB No. 10, slip op.
at 1-5 (2016) (Member Miscimarra, dissenting); and similar cases. However, Acting Chairman
Miscimarra disagrees with and disclaims reliance on statements in the Acting Regional
Director’s Supplemental Decision and Order on Challenged Ballots and Objections (“Order”) to
the effect that the Board should disregard evidence, even if it is unrebutted, whenever such
evidence can be characterized as “conclusionary” (Order, pp. 3-4), “unaccompanied by specific
examples” (id.), provided “in response to leading questions” (id., p. 4), a “mere paper showing”
(id., p. 5), or “general conclusionary evidence . . . [supported by] only three specific examples”
(id., p. 6). In Acting Chairman Miscimarra’s view, these types of recurring observations create
the impression that the Board strains to avoid findings of “supervisor” status, even if such
findings are supported by relevant documentation and unrebutted testimony. As stated in
Buchanan Marine, supra, Acting Chairman Miscimarra believes the Board cannot appropriately
disregard or discount relevant documentation and unrebutted evidence “merely because it could
2
PHILIP A. MISCIMARRA, ACTING CHAIRMAN
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER
Dated Washington, D.C., April 21, 2017.

have been stronger, more detailed, or supported by more specific examples.” Buchanan Marine,
LP, slip op. at 9 (Member Miscimarra, dissenting) (internal quotation and citation omitted).