365 NLRB No. 24 (N.L.R.B. 2017)

Linwood Care Center

National Labor Relations Board - Board DecisionsFeb 3, 2017

365 NLRB No. 24 (N.L.R.B. 2017)

365 NLRB No. 24 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. CPL (Linwood) LLC d/b/a Linwood Care Center, and its successor, 201 New Road Operations, LLC d/b/a Linwood Care Center1 and Sandra L. Transue, Petitioner and 1199 SEIU United Healthcare Workers East Union. Case 04–RD– 157892 February 3, 2017 DECISION ON REVIEW AND ORDER BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN On February 10, 2016, the National Labor Relations Board issued an Order denying CPL (Linwood) LLC d/b/a Linwood Care Center’s (“the Employer”) request for review of the Regional Director’s decision to hold the instant petition in abeyance. The Employer and its suc- cessor (hereinafter “the Employers”) subsequently filed a motion with the Region requesting a Saint Gobain2 hear- ing. On July 28, 2016, the Acting Regional Director issued an Order denying the Employers’ motion. There- after, in accordance with Section 102.67 of the Board’s Rules and Regulations, the Employers filed a timely re- quest for review, arguing that a Saint Gobain hearing should be held and that the Regional Director’s alleged bias affected the processing of the petition. The Em- ployers’ request for review is granted as it raises substan- tial issues warranting review. After careful considera- tion, we affirm the Acting Regional Director and find that it is appropriate to continue holding the petition in abeyance. A regional director may be required to hold a Saint Gobain hearing when dismissing a petition based on charges that raise an issue of a causal relationship be- tween the unfair labor practices and an incumbent un- ion’s subsequent loss of majority support. See Saint Go- bain, 342 NLRB at 434; Casehandling Manual Part Two (CHM), Section 11730.3(c). The instant petition is being held in abeyance, and thus, a Saint Gobain hearing is not required as a matter of law. We find that it is appropriate to continue holding the decertification petition in abeyance. On April 5, 2016, Administrative Law Judge Arthur J. Amchan issued his decision in the related consolidated unfair labor practice 1 We have added the successor 201 New Road Operations, LLC, d/b/a Linwood Care Center as an employer pursuant to the Employer’s and the successor’s answer to the Board’s July 28, 2016 notice to show cause in Case 04–RM–145463. 2 Saint Gobain Abrasives, Inc., 342 NLRB 434 (2004). case (04–CA–146362 et al.). On November 30, 2016, the Board issued a decision adopting, in the absence of exceptions, the judge’s findings that the Respondent vio- lated Section 8(a)(1) of the Act when its agents Jon Bu- ress and Dan Bryan solicited employees Mary Jo Halpin, Cassandra Morton, and Henry Waugh to sign a decertifi- cation petition; solicited employee grievances and prom- ised to remedy them if employees abandoned their sup- port for the Union; told employees that no changes in working conditions would be made unless either em- ployees got rid of the Union or a collective-bargaining agreement was signed; interrogated employees concern- ing their support for the Union; and threatened employ- ees by suggesting that it was futile to continue supporting the Union because contract negotiations could go on a very long time. CPL (Linwood) LLC d/b/a Linwood Care Center and its successor 201 New Road Opera- tions, LLC d/b/a Linwood Care Center, 364 NLRB No. 154, slip op. at 1 fn. 1 (2016).3 These unfair labor prac- tices are sufficient to warrant holding the petition in abeyance pursuant to the Board’s blocking charge policy. See CHM Section 11730 (“The Agency has a general policy of holding in abeyance the processing of a petition where a concurrent unfair labor practice charge is filed by a party to the petition and the charge alleges conduct that, if proven, would interfere with employee free choice in an election, were one to be conducted.”).4 We find it unnecessary to address the Employers’ ar- guments regarding the alleged bias of the Regional Di- rector in his initial determination to hold the petition in abeyance. Subsequent to the Regional Director’s deter- mination, the Acting Regional Director considered the Employers’ request to hold a Saint Gobain hearing and he determined that a hearing was unnecessary and pro- cessing of the petition would continue to be held in abey- ance. Further, for the reasons stated above, we find that there is no merit to the Employers’ contentions that a Saint Gobain hearing should be held and the petition processed. 3 The Board severed and retained for further consideration the re- maining allegations which have been excepted to either by the General Counsel or the Respondent. Id. 4 Acting Chairman Miscimarra favors a reconsideration of the Board’s blocking charge doctrine for reasons expressed in the dissent- ing views that were contained within the Board’s representation elec- tion rule, 79 Fed. Reg. 74308, at 74430–74460 (Dec. 15, 2014) (dis- senting views of Member Miscimarra and Member Johnson), but he acknowledges that the Board has declined to materially change its blocking charge doctrine. Accordingly, he concurs in holding the peti- tion in abeyance. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 ORDER This proceeding is remanded to the Regional Director for further appropriate action consistent with this Deci- sion on Review and Order. Dated, Washington, D.C. February 3, 2017 ______________________________________ Philip A. Miscimarra, Acting Chairman ______________________________________ Mark Gaston Pearce, Member ______________________________________ Lauren McFerran, Member (SEAL) NATIONAL LABOR RELATIONS BOARD