Premier Living Center

National Labor Relations Board - Board Decisions

May 15, 2000

331 N.L.R.B. 123 (N.L.R.B. 2000)

PREMIER LIVING CENTER 123
Grancare, Inc., d/b/a Premier Living Center and
United Food & Commercial Workers Union,
Local 204. Case 11–UC–83
May 15, 2000
DECISION ON REVIEW AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
Pursuant to a Stipulated Election Agreement in Case
11–RC–6262, an election was conducted on May 8,
1998, among employees in voting group B, a nonprofes-
sional unit consisting of the Employer’s licensed practi-
cal nurses (LPNs) and service and maintenance employ-
ees. A majority of employees voted for the Union. The
Employer filed election objections asserting, contrary to
the Stipulated Election Agreement, that the LPNs are
supervisors, and that, acting as union agents, they en-
gaged in objectionable conduct.1 Following a hearing on
the objections, the hearing officer found that the Em-
ployer was bound by its election agreement, which
clearly and unambiguously stipulated to the inclusion of
the LPNs in the unit. The hearing officer further found
that the LPNs are not statutory supervisors. Assuming
arguendo that the LPNs are supervisors, the hearing offi-
cer found that the conduct attributed to the LPNs was not
objectionable. Accordingly, he recommended overruling
the Employer’s objections.
On October 30, 1998, the Board adopted the hearing
officer’s recommendation in Case 11–RC–6262 and cer-
tified the Union as the exclusive representative of the
unit employees. The Board expressly relied on the hear-
ing officer’s finding that the Employer is bound by the
Stipulated Election Agreement.2
On November 12, 1998, the Employer filed the instant
unit clarification petition seeking to exclude LPNs from
the certified unit. On November 17, 1998, the Regional
Director for Region 11 dismissed the petition without con-
ducting a hearing. He found that the Employer is bound
by its voluntary stipulation in Case 11–RC–6262 that the
LPNs are included in the unit and, thus, is estopped from
seeking to exclude the LPNs from the unit through the
filing of this petition. The Employer requested review of
the Regional Director’s dismissal of the petition. On
January 13, 1999, the Board granted review.
In support of its request for review, the Employer con-
tends that, in light of the Act’s statutory exclusion of
supervisors from the definition of “employee,” the Board
is required to determine the supervisory status of job
classifications in a bargaining unit any time the issue is
raised. Accordingly, the Employer asserts that the Re-
gional Director was wrong, as a matter of law, in failing
to direct a hearing into issues raised by the instant peti-
tion and in finding that the Employer is estopped from
seeking to exclude LPNs from the unit solely on the basis
of its previous stipulation to their inclusion.3 We affirm
the Regional Director’s dismissal of the Employer’s unit
clarification petition.

1 In Case 11–RC–6262, an election also was held among employees
in voting group A, consisting of registered nurses (RNs) employed by
the Employer. Employees in voting group A voted against representa-
tion. The Employer’s objections encompassed the RNs, as well as the
LPNs; however, the instant UC petition seeks clarification only as to
the supervisory status of the LPNs in the certified unit.
The Employer has incorporated into its request for review in the in-
stant case the relevant portions of the record in Case 11–RC–6262.
2 The Board did not pass on the supervisory status of the LPNs. How-
ever, Members Fox and Liebman assumed for the sake of argument that the
LPNs are supervisors and, in agreement with the hearing officer, found that
the conduct attributed to the LPNs was not objectionable.
1. As an initial matter, we reject the Respondent’s con-
tention that the Board is required to determine the supervi-
sory status of job classifications in a bargaining unit any
time the issue is raised. In I.O.O.F. Home of Ohio, Inc., 322
NLRB 921, 922–923 (1997), the Board reaffirmed its long-
standing rule that in the absence of newly discovered and
previously unavailable evidence or special circumstances,
an employer may not challenge the validity of a union’s
certification based on a belief that unit members are statu-
tory supervisors if it failed to raise the issue during the rep-
resentation proceeding.4 In accordance with that rule, the
Board held that the Respondent in that case, who had stipu-
lated to the inclusion of LPNs in the certified unit but later
withdrew recognition from the union on grounds that it had
“reconsidered” and now believed the LPNs to be supervi-
sors, was barred from raising the supervisory issue as a de-
fense to a refusal to bargain allegation. The Board also spe-
cifically overruled, as inconsistent with its rule, McAlester
General Hospital, 233 NLRB 589 (1977), in which an em-
ployer who had stipulated to the inclusion of certain em-
ployees in a certified unit was permitted to litigate their su-
pervisory status in a subsequent unit clarification proceed-
ing. 322 NLRB at 921 fn. 7. Thus, the Employer’s assertion
that the Board must entertain its petition and rule on the
LPNs’ supervisory status notwithstanding its pre-election
stipulation to their inclusion in the unit is in error.5
3 Angelica Healthcare Services Group, 315 NLRB 1320 (1995),
cited by the Employer in support, is distinguishable. In contrast to the
instant case, Angelica did not involve a consent election.
4 This rule is a corollary of the Board’s longstanding policy that
once a ballot has been cast without challenge, its validity cannot there-
after be challenged, a policy which has met with Supreme Court ap-
proval. NLRB v. A.J. Tower, 329 U.S. 324 (1946). As the Board and
the Court both recognized, without such rules “an election could be
converted from a definitive resolution of preference into a protracted
resolution of objections purposely disregarded or supressed against the
contingency of an adverse result.” 329 U.S. at 330, quoting from A.J.
Tower Co., 60 NLRB 1414, 1416 (1945).
5 In its brief in support of its request for review, the Employer relies
on several cases that predate I.O.O.F. Home in which parties were
permitted to litigate supervisory issues notwithstanding a prior stipula-
tion. Those cases include Rosehill Cemetery Assn., 262 NLRB 1289
(1982); A & B Cartage, 256 NLRB 14 (1981); Judd Valve Co., 248
NLRB 112 (1980); Laymon Candy Co., 199 NLRB 547 (1972); Times-
World Corp., 151 NLRB 947 (1965). In our view, those cases were
implicitly overruled by I.O.O.F. Home, and to the extent that they are
inconsistent with the Board’s relitigation rule, as set forth here and in
I.O.O.F. Home, we now expressly overrule them and similar cases.
331 NLRB No. 9
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 124
2. We find further that the Employer has failed to of-
fer any evidence of changed or unusual circumstances
which would bring its unit clarification petition within
any exception to the Board’s relitigation rule. In support
of the its request for review, the Employer contends that
it has given LPNs “new” supervisory duties. As dis-
cussed below, the Employer has raised these contentions
in objections in the underlying representation proceeding
as well as the instant UC case.
(a) The Underlying Representation Case. As noted
above, in Case 11–RC–6262 the parties voluntarily stipu-
lated that LPNs are included in the unit. After the Union
won the election, however, and notwithstanding its stipu-
lation to the contrary, the Employer filed election objec-
tions asserting, among other things, that the LPNs are
supervisors.
During the hearing on the election objections in Case 11–
RC-6262 conducted on June 18, 1998, the Employer was
permitted to adduce evidence in support of its claims that
“new” policies and position descriptions had been imple-
mented and that “new” supervisory job duties had been as-
signed to its nurses, including LPNs, thus rendering them
statutory supervisors. According to the testimony of Staff
Development Coordinator Elizabeth Settlemeyer in that
case, the LPNs’ then-new job duties included: (a) prepara-
tion of performance evaluations for CNAs that result in
“scores” that correlate to predetermined merit pay raise
amounts; and, (b) assignment to nurses of full responsibility
“for anything that went on in their halls, that it was not to be
just passed up the ladder . . . and to see that the work [of
caring for patients] was done.”
Uncontroverted evidence revealed, however, that those
purportedly “new” job descriptions and duties were stan-
dards established by Living Centers of America and that
they had been assigned to nurses and implemented in
February or early March 1998, following the merger of
Grancare with Living Centers and, significantly, before
the April 7, 1998 date of the Stipulated Election Agree-
ment. Thus, in Case 11–RC–6262, the Regional Director

Parkview Manor, 321 NLRB 477, 478 (1996), which was also cited
by the Employer, relied in part on Rosehill Cemetery, but also involved
special circumstances, namely that the analytical framework used by
the hearing officer in finding that charge nurses were not supervisors
was rejected by the Supreme Court in NLRB v. Health Care & Retire-
ment Corp., 511 U.S. 571 (1994). Although the “special circum-
stances” part of Parkview Manor remains valid, the part of that case
that relied on Rosehill was, in our opinion, similarly overruled by
IOOF.
The Washington Post Co., 254 NLRB 168 (1981), also relied on by
the Employer, is distinguishable, and indeed was distinguished by the
Board in I.O.O.F. Home. In The Washington Post Co., the Regional
Director, during the representation proceeding, expressly authorized the
parties to raise the supervisory issue by filing a postelection unit clarifi-
cation petition in exchange for the parties’ agreement not to litigate the
unit placement issue prior to the election. 322 NLRB 921 fn. 7. In the
instant case, and in I.O.O.F. Home, the Employer voluntarily stipulated
to the inclusion of LPNs in the bargaining unit without any such au-
thorization by the Regional Director to raise the supervisory issue post-
certification.
found that the assignment of the purported “new” duties
to LPNs did not constitute newly discovered evidence or
a change in circumstances of which the Employer was
unaware at the time of the Stipulated Election Agree-
ment. Accordingly, the Regional Director held the Em-
ployer bound by the Agreement stipulating to the unit
inclusion of LPNs.
(b) The Unit Clarification Proceeding. The facts and
“new evidence” offered by the Employer in support of its
request for review of the Regional Director’s dismissal of
the instant unit clarification petition are substantially
similar to the evidence of “new” supervisory duties of-
fered by the Employer in the hearing in Case 11–RC–
6262.6 That is, here the Employer contends that, “in late
April 1998,” it implemented Living Center’s Perform-
ance Review Policy, pursuant to which LPNs prepare
performance evaluations for CNAs that directly impact
wages. The only new fact contained in the Employer’s
request for review is that the number of evaluations per-
formed by LPNs has increased from about 4 in June 1998
to about 11 as of December 1998.7 The Employer has
not made even a cursory showing regarding how, if at all,
the authority of LPNs to perform evaluations has
changed, or how the evaluations performed “in late April
1998” differ from those which have been performed by
LPNs since February or March 1998, as determined by
the hearing officer in Case 11–RC–6262. Nor has the
Employer shown how such evaluations have directly
affected any statutory indicium of supervisory status
such as rewarding or discharging employees.
The Employer also contends that, “since June 1998,”
LPNs have been assigned “additional responsibilities for
assigning CNAs to provide care for specific patients.”
The Employer does not say that this assignment occurred
after the hearing on June 18, 1998. Even if it did, the
Employer’s showing is insufficient. The Employer has
not made a showing regarding the nature of those pur-
ported “additional responsibilities” and how they differ
from responsibilities assigned in February or March
1998. Indeed, we are left by the Employer to speculate
what such “additional responsibilities” might consist of,
in light of Staff Development Coordinator Settlemeyer’s
testimony in Case 11–RC–6262 that in February or
March 1998, LPNs had been assigned full responsibility
“for anything that went on in their halls, that it was not to
be just passed up the ladder . . . and to see that the work
[of caring for patients] was done.”
The Employer’s vague, ambiguous, and unsupported
claims regarding the purported assignment of new duties
to LPNs falls far short of demonstrating the existence of
new and previously undiscovered evidence or unusual
6 The Employer submitted an affidavit by Administ
rator Kathy McMahon.
7 We also note that, according to McMahon’s affidavit, 11 of 20
performance evaluations had been completed by LPNs. The Employer
offered no explanation regarding the other nine evaluations.
PREMIER LIVING CENTER 125
circumstances that would warrant review of the inclusion
of the LPNs in the certified unit.8 Accordingly, we af-
firm the Regional Director’s dismissal of the petition.9
8 We do not hold that an employer is estopped in all cases from
seeking clarification of a bargaining unit via a postelection unit clarifi-
cation petition. Conceivably, there could be instances when such a
petition would be appropriate, such as when a genuine claim is ad-
vanced that new and previously undiscovered evidence exists. We
simply hold that in this case the Employer has not made such a showing
and, thus, is estopped in such circumstances from challenging the non-
supervisory status of LPNs following its voluntary stipulation to their
inclusion in the unit.
9 In affirming the Regional Director’s dismissal of the petition, we
reject the Employer’s contention that the Regional Director erred in
failing to direct a hearing on issues raised in its petition. Sec. 9(c)(1) of
the Act, cited by the Employer, concerns the requirement that a hearing
be held upon the filing of a petition for a representation election; it is
not applicable to unit clarification petitions. Sec. 102.63(b) of the
Board’s Rules and Regulations, series 8, as amended, specifically states
that a Regional Director has the authority to dismiss a unit clarification
petition based on an administrative investigation without holding a
hearing. In this case, as we have found above, the Employer has failed
ORDER
It is hereby ordered that the Employer’s petition for
clarification of the certified unit10 is dismissed.

to offer any relevant evidence that was not already presented in the
hearing on the election objections in Case 11–RC–6262 or that other-
wise raises substantial factual issues. Thus, the Employer has failed to
demonstrate any need for an evidentiary hearing.
In addition to the above, Member Hurtgen notes that the parties have
already litigated the “relitigation” issue, viz., the issue of whether the
Employer should be permitted to adduce additional evidence on the
question of supervisory status. The Board’s decision of October 30,
1998, resolves that relitigation issue against the Employer. Thus, the
Employer is estopped from again raising the “relitigation” issue. Of
course, this paragraph does not pertain to matters arising after the hear-
ing in that case. As to those matters, Member Hurtgen simply agrees
with his colleagues.
10 The certified unit consists of all full-time and regular part-time li-
censed practical nurses and service and maintenance employees includ-
ing all certified nursing assistants, dietary, transport, housekeeping and
laundry employees, ward clerk, purchasing clerk, and activities em-
ployees, employed by the Employer at its Lake Waccamaw, North
Carolina facility.