Manor Care of Allentown PA, LLC d/b/a ManorCare Health Services-Allentown

National Labor Relations Board - Unpublished Board Decisions

Sep 19, 2017

06-RC-186558 (N.L.R.B. Sep. 19, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
MANORCARE OF ALLENTOWN PA, LLC D/B/A
MANORCARE HEALTH SERVICES--
ALLENTOWN
Employer
and Case 06-RC-186558
RETAIL, WHOLESALE AND DEPARTMENT
STORE UNION, RWDSU, UNITED FOOD AND
COMMERCIAL WORKERS, AFL-CIO
Petitioner
ORDER
The Employer’s request for review of the Regional Director's Supplemental Decision and
Second Supplemental Decision on Objections and Certification of Representative is denied as it
raises no substantial issues warranting review.1

1 In denying review, we agree with the Regional Director that the Employer’s arguments
related to the processing of the petition by Region 4 in Case 04-RC-159640 are not relevant to
this case. Region 4 had no involvement with the petition filed in Region 6, and its involvement
in Case 04-RC-159640 ended with the General Counsel’s Order, issued on April 22, 2016, which
transferred the case to Region 6 for de novo review of the Employer’s objections.
We also reject the Employer’s contention that the petition must be dismissed because it
was originally filed in Region 6. By order dated October 27, 2016, the General Counsel ordered
that this case be processed in Region 6 as though it were originally filed in Region 4 and then
immediately transferred to Region 6 by the General Counsel. Contrary to the Employer, we find
that it was appropriate and within the General Counsel’s authority to order that the case be
processed in this manner, and dismissal of the petition in these circumstances was unwarranted.
NLRB v. Superior Cable Corp., 246 F.2d 539, 540 (4th Cir. 1957) (per curiam) (it would be a
“senseless technicality” to require dismissal of a petition, where “the defect in the petition could
be cured and was cured”); Bellagio, LLC v. NLRB, 863 F.3d 839, 846-847 (D.C. Cir. 2017) (non-
compliant petition did not require dismissal where violation was cured without prejudice to
employers). See also International Shoe Co., 93 NLRB 331, 332 (1951) (finding the General
Counsel could cure a defective filing by transferring the petition to the correct Region).
Employer Objection 9 alleges that the Petitioner engaged in objectionable conduct by
offering to turn over authorization cards if it lost the election. The Regional Director affirmed
the hearing officer’s finding that the Petitioner’s offer in the pre-election hearing to demonstrate
its showing of interest by disclosing signed authorization cards was neither sufficiently serious
nor sufficiently disseminated to unit employees to call into question the validity of the election,
PHILIP A. MISCIMARRA, CHAIRMAN
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER
Dated, Washington, D.C., September 19, 2017.

which the Petitioner won by a 23-vote margin. The Employer’s request for review contends that
the Regional Director’s analysis of this objection failed to consider the Employer’s argument that
the coercive impact of the Petitioner’s conduct was demonstrated by the Petitioner’s objection to
alleged interrogation of card signers during a prior campaign, as evidenced by Employer Exhibit
1, which the hearing officer did not admit into evidence. Even accepting, arguendo, that the
Petitioner objected to the Employer’s alleged interrogation of card signers and that the hearing
officer should have admitted Employer Exhibit 1, we nevertheless agree that Objection 9 should
be overruled for the reasons stated by the Regional Director.
Chairman Miscimarra notes that this case involves, in part, the Board's recently revised
representation case procedures, with which he has expressed his disagreement. See 79 Fed.Reg.
74308, at 77430-74460 (Dec. 15, 2014) (dissenting views of Members Miscimarra and Johnson).
While the Chairman continues to disagree with the revised Rule, the Employer did not timely
raise the issue of the invalidity of the Election Rule or its application to the Regional Director.
Accordingly, Chairman Miscimarra does not pass or reach any question regarding the
consequences of the Rule's application to the instant case. See Board’s Rules and Regulations,
Sec. 102.67(d).