Rockspring Development

National Labor Relations Board - Board Decisions

Nov 15, 2006

348 N.L.R.B. 1132 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
348 NLRB No. 75
1132
Rockspring Development, Inc. and United Mine
Workers of America, Petitioner. Case 9–RC–
17844
November 15, 2006
ORDER REMANDING PROCEEDING
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND KIRSANOW
On February 3, 2004, Hearing Officer Donald A. Be-
cher issued a report on challenged ballots and recom-
mendations to the National Labor Relations Board in this
proceeding. The Employer filed exceptions, the Peti-
tioner filed exceptions and a supporting brief, and each
filed an answering brief.
On September 29, 2006, the Board issued a Decision,
Direction, and Order in this proceeding, adopting the
hearing officer’s recommendations in certain respects,
and directing the Regional Director to open and count
certain ballots and to prepare a revised tally of ballots.
The Board further directed the Regional Director to
transfer this proceeding back to the Board if the chal-
lenged ballots of Ernest Bartram, Charles Stollings, An-
drew Jackson Sharp, and Bobby Lee Stowers remained
determinative. On October 12, 2006, the Regional Di-
rector, having found that these ballots remained determi-
native, transferred this proceeding back to the Board for
further consideration.1
On September 29, 2006, the Board issued its decisions
in Oakwood Healthcare, 348 NLRB 685, Croft Metals,

1 The revised tally of ballots shows 110 for and 108 against the Peti-
tioner, with 4 challenged ballots, a number sufficient to affect the re-
sults.
Inc., 348 NLRB 716, and Golden Crest Healthcare Cen-
ter, 348 NLRB 712, in light of the Supreme Court’s deci-
sion in NLRB v. Kentucky River Community Care, 532
U.S. 706 (2001). Oakwood Healthcare, Croft Metals,
and Golden Crest specifically address the meaning of
“assign,” “responsibly to direct,” and “independent judg-
ment,” as those terms are used in Section 2(11) of the
Act.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has decided to remand this case to the hear-
ing officer for further consideration in light of Oakwood
Healthcare, Croft Metals, and Golden Crest, including
allowing the parties to file briefs on the issue,2 and, if
warranted, reopening the record to obtain evidence rele-
vant to deciding the case under the Oakwood Healthcare,
Croft Metals, and Golden Crest framework.
IT IS ORDERED that this proceeding is remanded to the
hearing officer for appropriate action as noted above.
IT IS FURTHER ORDERED that the hearing officer shall
prepare a supplemental report on challenged ballots set-
ting forth recommendations to the Board, as appropriate
on remand. Copies of the supplemental report shall be
served on all parties, after which the provisions of Sec-
tion 102.69 of the Board’s Rules and Regulations shall
be applicable.

2 On October 17, 2006, the Employer filed a Motion to Permit Re-
Briefing. On October 24, 2006, the Petitioner filed an opposition.
Because our remand provides an opportunity for further briefing, the
Employer’s motion is denied as moot.