Virgo Medical Services, Inc.

National Labor Relations Board - Unpublished Board Decisions

Oct 21, 2014

04-RC-104485 (N.L.R.B. Oct. 21, 2014)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
VIRGO MEDICAL SERVICES, INC.
Employer
and Case 04-RC-104485
TEAMSTERS UNION LOCAL NO. 115
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s Decision and Direction of
Election is denied as it raises no substantial issues warranting review.1 In denying review, we do
not reach the question of whether the Board's test in Specialty Healthcare & Rehabilitation
Center of Mobile, 357 NLRB No. 83 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC
v. NLRB, 727 F.3d 552 (6th Cir. Aug. 15, 2013), applies under the circumstances of this case.2
Dated, Washington, D.C., October 21, 2014
KENT Y. HIROZAWA, MEMBER
HARRY I. JOHNSON, III, MEMBER
NANCY SCHIFFER, MEMBER

1 In its request for review, the Employer contends, for the first time in this case, that the Regional
Director was without authority to issue his decision because the Board could not appoint him to his
position on January 29, 2013 due to the invalidity of the recess appointments of two of the Board’s three
members and the consequent absence of a quorum. NLRB v. Noel Canning, 134 S. Ct. 2550 (2014).
Assuming that this issue is properly before the Board, we find no merit to the Employer’s contention. We
find that the General Counsel was authorized to appoint Dennis Walsh as the Regional Director pursuant
to the Board’s order contingently delegating certain authorities to other NLRB officials. See Order
Contingently Delegating Authority to the Chairman, the General Counsel, and the Chief Administrative
Law Judge, 76 Fed. Reg. 73719 (Nov. 29, 2011). Further, the Board on July 18, 2014, in an abundance of
caution and with a full complement of five Members ratified nunc pro tunc and expressly authorized the
selection of Mr. Walsh. Finally, Regional Director Walsh on July 30, 2014 affirmed and ratified any and
all actions taken by him or on his behalf from March 10, 2013 to July 18, 2014. See Durham School
Services, 361 NLRB No. 66 (2014); Pallet Companies, Inc., 361 NLRB No. 33, slip op. at 1 (2014);
ManorCare of Kingston, PA, 361 NLRB No. 17, slip op. at 1 fn. 1 (2014). Accordingly, we reject the
Employer’s contention regarding the validity of Regional Director Walsh’s appointment.
2 Although he finds this to be a close case, Member Johnson joins in denying review of the Regional
Director's finding that the Employer has not rebutted the single-facility presumption. He notes that
Dattco, Inc., 338 NLRB 49 (2002), cited by the Employer, is distinguishable because the employee
contact and interchange there is greater than shown in this case.