Bluefield Hospital Company, LLC, d/b/a Bluefield Regional Medical Center

National Labor Relations Board - Board Decisions

Jun 20, 2013

359 N.L.R.B. 1181 (N.L.R.B. 2013)

BLUEFIELD REGIONAL MEDICAL CENTER 1181

359 NLRB No. 137
Bluefield Hospital Company, LLC, d/b/a Bluefield
Regional Medical Center and National Nurses
Organizing Committee, AFL–CIO (NNOC)

Greenbrier VMC, LLC, d/b/a Greenbrier Valley
Medical Center and National Nurses Organizing
Committee, AFL–CIO (NNOC). Cases 10–CA–
093042 and 10–CA–093065
June 20, 2013
ORDER DENYING MOTION
AND REMANDING
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The Acting General Counsel filed a motion for sum-
mary judgment in this proceeding, seeking a finding that
the Respondents have violated Section 8(a)(5) and (1) by
failing and refusing to bargain with the Union as the cer-
tified exclusive collective-bargaining representative of
their unit employees. On December 21, 2012, the Board
issued a Notice to Show Cause why the motion should
not be granted. The Respondents filed a response to the
Notice to Show Cause, and on the same day, filed a se-
cond amended answer to the consolidated complaint, in
which they assert a new affirmative defense alleging that
the identity of the bargaining representative has changed
as a result of an affiliation with another labor organiza-
tion. Thereafter, the Acting General Counsel filed a mo-
tion seeking a partial remand of this proceeding. The
Charging Party filed an opposition, and the Respondents
filed a reply.
We grant the Acting General Counsel’s motion to re-
mand this proceeding to the Region for investigation of
the Respondents’ affirmative defense relating to the Un-
ion’s affiliation with another labor organization.
1
If the

1 Accordingly, we deny the Motion for Summary Judgment.
In their second amended answer to the consolidated complaint, the
Respondents contend that the Certification of Representative is invalid
and unenforceable inasmuch as it issued when the Board lacked a valid
quorum under Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013),
pet. for cert. pending, No. 12–1281 (filed Apr. 25, 2013) and, further,
Region’s investigation reveals that genuine issues of ma-
terial fact exist warranting a hearing, we find that the
Respondents are precluded from religitating at a hearing
those matters that were or could have been litigated in
the underlying representation proceedings.
2

Further, if after investigating the union affiliation issue
the Regional Director determines that a hearing is not
warranted, the Acting General Counsel may file another
Motion for Summary Judgment at that time.
ORDER
IT IS ORDERED that the Acting General Counsel’s Mo-
tion for Summary Judgment is denied without prejudice
and these proceedings are remanded to the Regional Di-
rector for Region 10 for further appropriate action.

that the Acting General Counsel and Regional Director thereby lacked
the authority to prosecute the consolidated complaint. The Respondents
further contend that the Acting General Counsel’s appointment was
unlawful. Although by remanding this proceeding we are not passing
on the merits of the second amended consolidated complaint at this
time, we observe that such arguments have been rejected by the Board
for the reasons stated in Bloomingdale’s, Inc., 359 NLRB 1010 (2013),
and Post Acute Care Center, 359 NLRB 621, 621 (2013).
2 Such matters include the Respondents’ contention in their answer
that the bargaining units were constituted in violation of Sec. 9(c)(5).
The Respondents’ response to the Notice to Show Cause asserts that
they entered into an “Election Procedure Agreement” (also described in
their answer as an “oral ‘ad hoc’ agreement”) with the Union, which
provided that any election objections would be ruled on by a private
arbitrator, and that this agreement prevented the Respondents from
submitting evidence in support of their election objections to the Re-
gion. The Respondents further contend that the Union did not honor its
agreement with the Respondents and that its failure to do so prevented
the Respondents from litigating their objections in the representation
proceeding, despite the Regional Director’s initial determination that
the objections warranted a hearing. However, the consent election
agreement entered into by the Respondents provides that “[t]he method
of investigation of objections and challenges, including whether to hold
a hearing, shall be determined by the Regional Director, whose decision
shall be final” and further provides that “[a]ll rulings and determina-
tions made by the Regional Director will be final, with the same force
and effect in that case as if issued by the Board.” Therefore, the Re-
spondents have waived their right to have the Board review the Re-
gional Director’s actions in the representation proceeding.