Crown Nursing Home Associates, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1990

299 N.L.R.B. 512 (N.L.R.B. 1990)

512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Crown Nursing Home Associates, Inc. and United
Industry Workers, Local 424, Petitioner
Health Care Services Group, Inc. and 1115 Nursing
Home and Hospital Employees Union, a Divi-
sion of 1115 Joint Board, Petitioner. Cases 29-
RC-7429 and 29-RC-7434
August 20, 1990
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 19, 1990, 1 the Regional Director for
Region 29 issued an order sevenng case and ap-
proving withdrawal of petition in Case 29-RC-
7429 The order found that the Intervenor's2
amendment of the petition to include the Employ-
er's licensed practical nurses m a unit with the
ongmally petitioned-for service and maintenance
employees, particularly in view of the substantial
change in the character of the petition, and the
considerable increase in the size of the unit, ren-
dered the Intervenor's showing of interest untime-
ly, as it was supplemented by cards that postdated
the execution of a collective-bargaining agreement
between the Employer and the incumbent union,
Local 144, Hotel, Hospital, Nursing Home and
Allied Services Union, SEIU, AFL-CIO 3 Centen-
nial Development Co, 218 NLRB 1284, 1285 (1985)
Thereafter, Intervenor filed a timely request for
review, and Local 144 filed an opposition to the
Intervenor's request
The Board, by a three-member panel, grants the
Intervenor's request for review of the Regional Di-
rector's order sevenng case and approving with-
drawal of petition
The Employer and Local 144 were parties to a
collective-bargaining agreement that expired in
1984 After the expiration of that contract, Local
144 filed several unfair labor practice charges alleg-
ing the Employer's refusal to bargain for a new
contract On September 6, 1989, the Petitioner,
Local 424, filed the instant petition which was
blocked by the unfair labor practice charges On
September 20, 1989, 1115 filed an mtervenor's
showing of interest m this case, and filed a petition
in Case 29-RC-7434, seeking to represent a unit of
housekeeping and laundry employees at the Em-
ployer's facility
On January 12, the Employer and Local 144 exe-
cuted a collective-bargaining agreement covenng
' All dates hereinafter are 1990 unless otherwise noted
2 1115 Nursing Home and Hospital Employees Union, a Division of
1115 Joint Board (1115), the Intervenor in Case 29-RC-7429, is the Peti-
tioner in Case 29-RC-7434
3 Local 144 also Intervened in Case 29-RC-7429
the petitioned-for unit, effective January 1, 1990,
through December 31, 1993 On January 22, the
Petitioner made a wntten request to withdraw the
instant petition Subsequently, the Intervenor sup-
plemented its showing of interest to establish a pe-
titioner's showing, with cards that postdated the
execution of the contract
The cases were consolidated and the heanng
commenced on February 20, at which time the In-
tervenor amended the petition in Case 29-RC-7429
to include the Employer's licensed practical nurses
On March 19, the Regional Director severed the
two cases,4 and granted the Petitioner's request to
withdraw the petition in Case 29-RC-7429, finding
the Intervenor's showing of interest untimely
The Intervenor contends that it requested with-
drawal of its amendment seeking to add the li-
censed practical nurses, and that if such request
had been granted, its showing of interest to support
the petition that was filed on September 6, 1989,
would have been timely, notwithstandmg the Janu-
ary 12 execution of a collective-bargaining agree-
ment between the Employer and Local 144, cover-
ing the petitioned-for employees For the reasons
set forth below, we find ment in the Intervenbr's
contentions
We have been administratively advised that the
Intervenor, by letters of March 13 and 15, request-
ed that it be allowed to withdraw its amendment
Further, we have carefully examined the record
and have found that the Regional Director did not
rule on the Intervenor's request either before or in
his order of March 19 Inasmuch as there are no
rules prohibiting a party from withdrawing its own
amendment to a petition, at least at any time pnor
to the close of a hearing, the Board grants the In-
tervenor's request to withdraw its amendment to
add the licensed practical nurses to the originally
petitioned-for unit
Having granted the Intervenor's request, the
Board relies on the Regional Director's administra-
tive determination that the Intervenor had submit-
ted a sufficient showing of interest to support the
ongmally petitioned-for unit However, we reverse
the Regional Director's determination that this sup-
plemental showing of interest is untimely as it post-
dates the collective-bargaining agreement entered
into by the Employer and Local 144
Section 11114 1(b) of the NLRB's Casehandlmg
Manual (Part Two, Representation Proceedmgs),
provides that where a petitionmg union seeks to
withdraw its petition after approval of an election
4 The hearing continued on Case 29-RC-7434 and, as of the date of
this decision, the case is pending in the Regional Office awaiting the Re-
gional Director's decision
299 NLRB No 70
CROWN NURSING HOME ASSOCIATES 513
agreement or close of hearing, and an intervening
union desires the election be held, that intervening
union may be given a reasonable period for procur-
ing and submitting such interest The Casehandlmg
Manual specifically provides that such showing
need not antedate the approval of the agreement or
the close of the hearing By the same token, we
find that there is no requirement that such a show-
ing must ,predate any collective-bargaining agree-
ment executed between an employer and an incum-
bent union subsequent to the timely filmg of a rep-
resentation petition Such a requirement effectively
would nullify a party's right to intervene in an
election case with only an mtervenor's showing of
interest, as it would, in effect, require an intervenor
to have a petitioner's showing from the start An
intervenor has no control over whether an employ-
er and an incumbent umon execute an agreement,
or whether the original petitioner subsequently
withdraws its petition, thus, to require that the sup-
plemented showing of interest predate the contract
in this case would be unfair to an intervenor
Moreover, to treat the collective-bargaining agree-
ment between the Employer and Local 144 as a
bar to the Intervenor's desire to become the peti-
tioning union would be contrary to the principles
set forth in RCA del Canbe, Inc , 262 NLRB 963
(1982), where the Board concluded that the execu-
tion of a contract between an employer and an in-
cumbent union not only is not a violation of Sec-
tion 8(a)(2) of the Act, but also that such a con-
tract would not bar a valid representation petition
timely filed by an outside union
As we fmd that the Intervenor submitted a
timely showing of interest m Case 29-RC-7429, we
conclude that the Regional Director erred in ap-
provmg the Petitioner's withdrawal of the petition
Accordingly, we reinstate the petition, declare that
Local 1115 is to be considered a Cross-Petitioner in
that case, and remand the case to the Regional Di-
rector for further appropriate action
ORDER
The request of Intervenor 1115 Nursing Home
and Hospital Employees Union, a Division of 1115
Joint Board to withdraw its amendment to the peti-
tion in Case 29-RC-7429 is granted, the Regional
Director's approval of the Petitioner's request to
withdraw its petition is reversed, the petition is re-
mstated, 1115 Nursing Home and Hospital Employ-
ees Umon is declared to be a Cross-Petitioner, and
the case is remanded to the Regional Director for
further appropriate action