Angelica Healthcare Services Group

National Labor Relations Board - Board Decisions

Jan 18, 1995

315 N.L.R.B. 1320 (N.L.R.B. 1995)

1320
315 NLRB No. 175
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Member Browning, dissenting in part, agreed to grant review, but
would not have stayed the election. Member Cohen concurred in
granting review and staying the election, but would additionally have
remanded to the Regional Director with instructions to proceed to a
hearing forthwith.
2 The American Federation of Labor and Congress of Industrial
Organizations (AFL–CIO), the Chamber of Commerce of the United
States of America (Chamber of Commerce), the Labor Policy Asso-
ciation, the Council on Labor Law Equality, the Associated General
Contractors of America, Inc. (AGC), U.S. Home Care Company, and
American Health Care Association, et al.
3 The AFL–CIO, Chamber of Commerce, AGC, U.S. Home Care
Company, and American Health Care Association, et al.
4 The Union’s collective-bargaining agreement with the Employer
was effective from April 7, 1991, through April 9, 1994. The Union
presented two contract-bar arguments. First, the Union contended
that it had agreed to an expiration date of April 9, 1994, rather than
April 7, 1994, in order to accommodate the Employer’s automated
payroll and accounting systems. The Union claimed that the Board
should apply its 3-year contract-bar rule flexibly to bar the petition
filed here on April 8, 1994. Second, the Union asserted that if the
Board applies the 3-year contract bar strictly, then the Board should
treat the contract as having been automatically renewed on April 7,
1994, because the contract provides for automatic renewal where, as
here, no party has given timely notice of termination. Under this the-
ory, the automatic renewal of the contract on April 7, 1994, would
bar the petition filed the following day.
Angelica Healthcare Services Group, Inc. and Cyn-
thia Brooks, Petitioner and Local 218, Textile
Processors, Service Trades, Health Care Pro-
fessional and Technical Employees Inter-
national Union. Case 26–RD–936
January 18, 1995
DECISION ON REVIEW AND ORDER
REMANDING PROCEEDING TO REGIONAL
DIRECTOR FOR HEARING
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
BROWNING, COHEN, AND TRUESDALE
On May 17, 1994, the Acting Regional Director for
Region 26 of the National Labor Relations Board
issued a Decision and Direction of Election in the
above-captioned proceeding, finding, inter alia, that the
petition was timely filed because it was not barred by
a collective-bargaining agreement in effect between the
Employer and the Union. Thereafter, in accordance
with Section 102.67 of the Board’s Rules and Regula-
tions, the Union filed a timely request for review of
the Acting Regional Director’s decision, contending
that the petition was barred by the contract and in the
alternative that a hearing should have been held prior
to the issuance of the Decision and Direction of Elec-
tion.
By Order dated June 15, 1994, the Board granted
the Union’s request for review, vacated the Acting Re-
gional Director’s decision, and stayed the election.1
The Board stated that a fully articulated decision
would follow.
On June 28, 1994, the Board scheduled oral argu-
ment for July 28, 1994, because this case and another
case (Barre-National, Inc., Case 5–RC–14013) pre-
sented important issues in the administration of the Na-
tional Labor Relations Act. On the scheduled date, the
General Counsel, the Employer, the parties in the
Barre-National case, and the amici curiae2 presented
oral arguments. The General Counsel, the Petitioner in
the Barre-National case, and several of the amici cu-
riae3 filed post-argument briefs.
The Board has considered the Acting Regional Di-
rector’s decision in light of the record, the request for
review, the oral arguments, and the post-argument
briefs, and has decided to direct the holding of a hear-
ing for the reasons set forth below.
On April 8, 1994, Cynthia Brooks, an individual,
filed the decertification petition in this case. On April
29, 1994, the Acting Regional Director issued an
Order to Show Cause why an election should not be
directed.
On May 5, 1994, the Union filed a Response to
Order to Show Cause, with supporting affidavit, assert-
ing that the petition was untimely, because it was
barred by a collective-bargaining agreement,4 and re-
questing that the petition be administratively dismissed.
Alternatively, the Union requested that ‘‘a full hearing
be held upon proper notice to all parties, so that an
adequate record can be developed for appropriate re-
view.’’
In his decision, the Acting Regional Director re-
jected the Union’s contract-bar contentions, found that
‘‘[a] question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act,’’ and directed an election.
The Acting Regional Director did not address the
Union’s contention that if the petition were not dis-
missed, a hearing should be held.
Section 9(c)(1) of the Act states that when a rep-
resentation petition has been filed, ‘‘the Board shall in-
vestigate such petition and if it has reasonable cause
to believe that a question of representation affecting
commerce exists shall provide for an appropriate hear-
ing upon due notice.’’ (Emphasis added.) Section
9(c)(1) further states that ‘‘[i]f the Board finds upon
the record of such hearing that such a question of rep-
resentation exists,’’ the Board shall direct a secret-bal-
lot election.
Section 102.63(a) of the Board’s Rules and Regula-
tions provides in pertinent part as follows with respect
to cases such as this one in which the parties do not
enter into a consent-election agreement:
[I]f it appears to the Regional Director that there
is reasonable cause to believe that a question of
representation affecting commerce exists, that the
policies of the Act will be effectuated, and that an
election will reflect the free choice of employees
1321ANGELICA HEALTHCARE SERVICES GROUP
5 We also note Sec. 101.20 of the Statements of Procedure which
provides that, at the hearing, ‘‘[t]he parties are afforded full oppor-
tunity to present their respective positions and to produce the signifi-
cant facts in support of their contentions.’’
Chairman Gould does not subscribe to any reliance upon Section
101.20, as quoted, on the ground that it addresses issues not pre-
sented in this case. Cf. Justice Brandeis’ concurring opinion address-
ing this issue in the constitutional context in Ashwander v. Tennessee
Valley Authority, 297 U.S. 288, 341 (1936).
6 Because the Acting Regional Director failed to hold a hearing of
any type prior to directing the election, we find it unnecessary to
decide in this case the type of hearing that would be necessary to
satisfy the Act’s ‘‘appropriate hearing’’ requirement.
in the appropriate unit, the Regional Director shall
prepare . . . a notice of hearing before a hearing
officer at a time and place fixed therein.
We find that the language of Section 9(c)(1) of the
Act and Section 102.63(a) of the Board’s Rules re-
quired the Acting Regional Director to provide ‘‘an ap-
propriate hearing’’ prior to finding that a question con-
cerning representation existed and directing an elec-
tion.5 Because the Acting Regional Director erred in
failing to hold a hearing, we conclude that a hearing
should now be held. We shall remand the case to the
Regional Director to arrange the hearing and to take
further appropriate action.6
ORDER
It is ordered that a hearing be held before a duly
designated hearing officer.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 26 to ar-
range the hearing and to take further appropriate ac-
tion.