The Avenue Care and Rehabilitation Center

National Labor Relations Board - Board Decisions

Dec 16, 2014

361 N.L.R.B. 1378 (N.L.R.B. 2014)

1378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Avenue Care and Rehabilitation Center and
SEIU District 1199, WV/KY/OH, the Healthcare
and Social Service Workers Union. Cases 08–
CA–105234 and 08–RC–088734
December 16, 2014
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge and a first amended
charge filed by SEIU District 1199 WV/KY/OH, The
Health Care and Social Service Union (the Union) on
May 16, and June 5, 2013, respectively, the Acting Gen-
eral Counsel issued the complaint on June 7, 2013, alleg-
ing that the Respondent has violated Section 8(a)(5) and
(1) of the Act by refusing the Union’s request to bargain
following the Union’s certification in Case 08–RC–
088734. The Respondent filed an answer admitting in
part and denying in part the allegations in the complaint.
On July 3, 2013, the Acting General Counsel filed a
Motion for Summary Judgment. On July 9, 2013, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response.
The National Labor Relations Board has consolidated
these proceedings and delegated its authority in this pro-
ceeding to a three-member panel.
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification on the basis of its
objection to conduct that allegedly affected the results of
the election in Case 08–RC–088734.1 In a typical unfair
1 In addition, in response to the notice to show cause, the Respond-
ent argues for the first time that the certification is not valid because at
all times during the processing of Case 08–RC–088734, the Board
lacked a quorum under NLRB v. Noel Canning, 705 F.3d 490 (D.C. Cir.
2013), affd. in relevant part 134 S.Ct. 2550 (2014); NLRB v. New Vista
Nursing & Rehabilitation, 719 F.3d 203 (3d Cir. 2013); and NLRB v.
Enterprise Leasing Co. Southeast, LLC, 722 F.3d 609 (4th Cir. 2013),
cert. denied 134 S.Ct. 2902 (2014). The Respondent argues that in the
absence of a quorum the Board “lacked the statutory authority neces-
sary to inter alia delegate to its Regional Directors, determine appro-
priate bargaining units, direct and/or conduct an election and certify the
result of an election.”
The Respondent offers no justification for its failure to make this ar-
gument in a timely fashion in the representation proceeding. Indeed,
the Respondent not only failed to raise a timely challenge to the author-
ity of the Regional Director, it entered into a Stipulated Election
Agreement in which it waived the right to a hearing and expressly
agreed to the conduct of a secret-ballot election. Therefore, we reject
labor practice proceeding, a respondent is precluded from
raising representation issues that were or could have been
litigated in the prior representation proceeding. Howev-
er, at the time of the Board’s Decision and Certification
of Representative in Case 08–RC–088734, the composi-
tion of the Board included two persons whose appoint-
ments to the Board had been challenged as constitution-
ally infirm. On June 26, 2014, the United States Su-
preme Court issued its decision in NLRB v. Noel Can-
ning, supra, holding that the challenged appointments to
the Board were not valid. Under these circumstances, we
will not give the prior Decision and Certification of Rep-
resentative preclusive effect, and we will consider anew
the matters raised in the representation proceeding.
The election in Case 08–RC–088734 was held on Oc-
tober 12, 2012, pursuant to a Stipulated Election Agree-
ment. The tally of ballots showed 33 for and 16 against
the Union, with 1 challenged ballot. On October 19,
2012, the Respondent timely filed an Objection to Con-
duct Affecting the Results of the Election. The Re-
spondent’s single objection to the election was that the
Board Agent who presided over the election wore a pur-
ple vest on the day of the election. The Respondent ar-
gues that the color purple is the “official” color of the
Union, and that by wearing a purple vest on the day of
the election, the Board Agent destroyed the Agency’s
appearance of neutrality.
the Respondent’s arguments as untimely, and we find that the Re-
spondent is estopped from attacking the propriety of an election to
which it has expressly agreed. See ManorCare of Kingston, PA, LLC,
361 NLRB 186, 186 fn. 1 (2014).
Moreover, even if the Respondent’s challenge to the Regional Direc-
tor’s authority were not barred as untimely, we would reject it on the
merits. The delegation to Regional Directors of the authority to enter
into Stipulated Election Agreements and conduct elections pursuant
thereto is long-standing. See, e.g., Douglas Aircraft Co., 56 NLRB 281
(1944). Congress expressly indicated its approval of this practice in
Sec. 9(c)(4) of the Act. More generally, in 1961, the Board delegated
decisional authority in representation cases to Regional Directors pur-
suant to the 1959 amendment of Sec. 3(b) of the National Labor Rela-
tions Act expressly authorizing such a delegation. Pub. L. 86–257,
86th Cong., 1st Sess., § 701(b), 73 Stat. 519, 542; 26 Fed, Reg. 3911
(1961); see Magnesium Casting Co. v. NLRB, 401 U.S. 137, 142 (1971)
(by Sec. 3(b) Congress allowed the Board to make a delegation of its
authority over representation elections to the regional director). This
delegation occurred when the Board had a quorum and has never been
revoked. Finally, Sec. 102.178 of the Board’s Rules and Regulations
provides that “during any period when the Board lacks a quorum nor-
mal Agency operations should continue to the greatest extent permitted
by law.” See also Sec. 102.182 (representation cases should be pro-
cessed to certification “[t]o the extent practicable.”). Durham School
Services, LP, 361 NLRB 702, 702–703 (2014).
Member Miscimarra agrees with the Board’s rejection of the Re-
spondent’s Noel Canning arguments on the merits, as described above,
and he does not reach or rely on the foregoing waiver discussion.
361 NLRB No. 151

THE AVENUE CARE & REHABILITATION CENTER 1379
On November 14, 2012, following an administrative
investigation, the Regional Director issued a Report on
Objection recommending that the Respondent’s objec-
tion be overruled and that a Certification of Representa-
tive be issued. The Regional Director found that the Re-
spondent’s objection did not raise substantial and materi-
al issues of fact or law, and that a hearing on the objec-
tion was not warranted. The Regional Director noted
that the Respondent’s objection was based on the color
of the Board Agent’s vest alone, and that the Respondent
did not claim that the vest displayed the Union’s logo or
other markings. The Regional Director also noted that
there was no suggestion that the Board Agent engaged in
any behavior or made any comments that would call into
question the Agency’s neutrality.
On November 28, 2012, the Respondent timely filed
Exceptions to the Regional Director’s Report on Objec-
tion. The Respondent argues that the Regional Director
erred by miscomprehending and/or misapplying Board
doctrine, and by making findings of fact in a conclusory
manner without analysis.
The Board has reviewed the record in Case 08–RC–
088734 in light of the exceptions and brief, has adopted
the Regional Director’s findings and recommendations,
and finds that a certification of representative should be
issued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for SEIU District 1199 WV/KY/OH, The
Health Care and Social Service Union, and that it is the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time State Tested Nursing
Assistants, Dietary Aides, Dietary Cooks, Housekeep-
ing employees, Laundry employees, Restorative Aides
and Activities Aides employed by the Employer at its
facility located at 4120 Interchange Corporate Center
Road, Warrensville Heights, Ohio, but excluding all
LPN nurses, RN nurses, PRN casual employees, office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
NOTICE TO SHOW CAUSE
As noted above, the Respondent has refused to bargain
for the purpose of testing the validity of the certification
of representative in the U.S. Courts of Appeals. Alt-
hough the Respondent’s legal position may remain un-
changed, it is possible that the Respondent has or intends
to commence bargaining at this time. It is also possible
that other events may have occurred during the pendency
of this litigation that the parties may wish to bring to our
attention.
Having duly considered the matter,
1. The General Counsel is granted leave to amend the
complaint on or before December 29, 2014, to conform
with the current state of the evidence.
2. The Respondent’s answer to the amended com-
plaint is due on or before January 12, 2015.
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before February 2, 2015 (with affidavit of
service on the parties to this proceeding), as to why the
Board should not grant the General Counsel’s motion for
summary judgment. Any briefs or statements in support
of the motion shall be filed by the same date.