800 River Road Operating Company, LLC d/b/a CareOne at New Milford

National Labor Relations Board - Board Decisions

Aug 29, 2019

368 NLRB No. 60 (N.L.R.B. 2019)

368 NLRB No. 60
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
800 River Road Operating Company, LLC d/b/a Care
One at New Milford and 1199 SEIU United
Healthcare Workers East. Case 22–CA–204545
August 29, 2019
ORDER1
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On March 30, 2018, the General Counsel issued the
complaint in this case, alleging that the Respondent vio-
lated the National Labor Relations Act. Thereafter, the
parties litigated the case before Administrative Law Judge
Benjamin W. Green, who issued a decision on November
20, 2018, finding that the Respondent violated Section
8(a)(5) and (1) by reducing the work hours of 20 unit em-
ployees and by discharging one unit employee and sus-
pending three others without providing the Union with no-
tice and an opportunity to bargain over the discipline. The
Respondent relevantly excepted, and the parties thereafter
filed briefs responding to the exceptions. These included
the Charging Party Union’s 17-page answering brief, filed
on March 14, 2019, supporting all of the judge’s unfair
labor practice findings. The General Counsel’s answering
brief, also filed on March 14, supported the judge’s find-
ing that the Respondent unlawfully reduced unit employ-
ees’ hours. The brief also acknowledged that the judge’s
finding that the unilateral imposition of discretionary dis-
cipline violated the Act was consistent with the record ev-
idence and extant Board precedent, citing Total Security
Management Illinois 1, LLC, 364 NLRB No. 106 (2016).
However, the General Counsel argued that the Board
should overrule Total Security Management, return to the
standard set forth in Fresno Bee, 337 NLRB 1161, 1186
(2002), and find that the unilateral imposition of discipline
was lawful under that standard.
On July 1, 2019, the Charging Party filed a Motion for
Partial Withdrawal of the Charge, seeking to withdraw
only the allegations that the unilateral imposition of dis-
cretionary discipline violated the Act. The reason given
for this about-face is as follows: “The Union . . . has fur-
ther investigated the circumstances of the disciplinary ac-
tions addressed in the charge and determined that in each
instance the employee engaged in misconduct and the mis-
conduct was the reason for the discipline. In other words,
the disciplinary actions complained of were for cause . . .
and therefore no reinstatement or make-whole remedy is

1 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
available” for this alleged violation of the Act. Thus, in
the Union’s opinion, further processing of this allegation
in the charge “would not effectuate the purposes of the
Act.” The Union provides no information concerning its
“further investigation” or the facts that investigation un-
covered. The Union, however, maintains its position that
the reduction in unit employees’ hours was unlawful, and
thus it does not seek withdrawal of its charge in its en-
tirety.
After careful consideration, we have concluded that the
Charging Party’s Motion should be denied. Section 102.9
of the Board’s Rules and Regulations provides that after a
case has been transferred to the Board, a charging party
may withdraw its unfair labor practice charge only with
the Board’s consent. As the Board explained more than
60 years ago, “[i]t is well established that the Board’s
power to prevent unfair labor practices is exclusive, and
that its function is to be performed in the public interest
and not in vindication of private rights. Thus, the Board
alone is vested with lawful discretion to determine
whether a proceeding, when once instituted, may be aban-
doned.” Robinson Freight Lines, 117 NLRB 1483, 1485
(1957) (footnote omitted), enfd. 251 F.2d 639 (6th Cir.
1958); see also Flyte Tyme Worldwide, 362 NLRB 393,
393 (2015) (citing Robinson Freight Lines, supra); Retail
Clerks, Local 1288 (Nickel’s Pay-Less Stores), 163 NLRB
817, 817 fn. 1 (1967) (“When a matter has ripened to the
point of being before the . . . Board for decision, we must
of course give paramount weight to the public interest af-
fected by withdrawal of the underlying charge.”), enfd.
390 F.2d 858 (D.C. Cir. 1968). In short, it is for the Board
to determine whether permitting partial withdrawal of the
charge would effectuate the purposes of the Act, not the
Charging Party.
Here, the Board and the parties have already expended
significant resources in the litigation of this case, and there
is no evidence that the Respondent has either remedied the
violations found by the Administrative Law Judge or
reached a settlement with the Charging Party Union.
Moreover, the motion only seeks withdrawal of the charge
in part; thus, the Board will have to continue processing
the case in any event. In addition, this case presents the
Board with an opportunity to address significant issues of
law under the National Labor Relations Act involving the
obligation of the Respondent, and other employers, to en-
gage in bargaining before imposing discipline on employ-
ees. Indeed, the Respondent opposes the motion precisely
because it would be deprived of that guidance if the mo-
tion were granted. For all these reasons, we do not find
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that it would effectuate the purposes of the Act to grant the
motion for partial withdrawal of the charge in this case.
Our dissenting colleague contends that the Charging
Party’s Motion should be granted because, in light of the
Charging Party’s and General Counsel’s change of posi-
tion, there is no longer a “case or controversy.” The dis-
sent cites no authority for the proposition that the justicia-
bility doctrines applicable in an Article III court apply to
agency adjudications under the Administrative Procedure
Act, and that statute makes no mention of a “case or con-
troversy” requirement. Indeed, the very fact that under
Section 102.9 of its Rules and Regulations, the Board may
withhold its consent to withdrawal of a charge demon-
strates that a case is not mooted simply because the charg-
ing party requests withdrawal of the charge—or, as here,
withdrawal of part of the charge. And nothing in Section
102.9 or in Board decisions applying it requires the Board
to consent if, at a certain stage of the litigation, the General
Counsel changes position. Moreover, regardless of the
parties’ current positions, the “concrete adverseness
which sharpens the presentation of issues” is present here
because the parties vigorously contested the issues before
the judge, Baker v. Carr, 369 U.S. 186, 204 (1962), and it
is not unlikely that once this Order is published and the
broader public is put on notice that reconsideration of To-
tal Security Management is sought in this case, one or
more interested parties will move for leave to file amicus
briefs.
The dissent also gives no weight to the significant re-
sources already expended in the litigation of this case, to
the Respondent’s interest in a determination of its rights
and obligations under the Act with respect to future disci-
plinary actions, or to the fact that the motion only seeks
partial withdrawal of the charge, so the Board must ex-
pend further resources in processing the case in any event.
Instead, she gives dispositive weight to the Union’s claim,
which our colleague uncritically accepts at face value, that
between March and July, 2019, the Union somehow (it
does not say how) obtained additional information (it does
not say what) demonstrating that the suspensions and dis-
charge were for cause, when the Union had vigorously
contended the opposite ever since it filed the charge. The
dissent thus effectively elevates the Union’s wishes con-
cerning the continued litigation of this issue over all other
considerations. For the reasons stated above, we do not.
Having denied the Motion for Partial Withdrawal of the
Charge, we will consider in due course the issues pre-
sented in this case, including the General Counsel’s and

1 In a prior decision, Members Kaplan and Emanuel pointedly “ex-
press[ed]no opinion whether Total Security Management was correctly
decided.” Windsor Redding Care Center, LLC, 366 NLRB No. 127, slip
op. at 1 fn. 3 (2018).
Respondent’s request that we reconsider Total Security
Management. While our dissenting colleague evidently
believes that the only legitimate result would be to reaf-
firm that precedent, its validity is not before us now, and
we express no view concerning that matter. Accordingly,
we also do not address the dissent’s speculation about pos-
sible outcomes for this case.
ORDER
IT IS ORDERED THAT the Charging Party’s Motion for
Partial Withdrawal of the Charge is denied.
Dated, Washington, D.C. August 29, 2019
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
The decision to deny the Charging Party’s motion for
partial withdrawal of its unfair labor practice charge is in-
explicable—unless, of course, the majority intends to use
this case to overrule Total Security Management Illinois
1, LLC, 364 NLRB No. 106 (2016), which held that em-
ployers have a statutory duty to bargain with unions be-
fore—not just after—imposing discipline on employees.1
But the majority’s apparent desire to reverse precedent
does not justify keeping this case alive artificially.
Applying Total Security here, the administrative law
judge found that the Respondent violated Section 8(a)(5)
of the Act by unilaterally suspending three employees and
discharging another. Thus, the General Counsel—who
had issued and pursued the complaint—prevailed. But in
his brief to the Board, the General Counsel reverses course
completely. He now urges the Board to overrule Total Se-
curity, reiterating the arguments of Member Miscimarra’s
dissent in that case.2 The Charging Party, meanwhile,
seeks to withdraw the charge in relevant part. Barely ac-
knowledging the General Counsel’s remarkable about-
face, the majority—denies the motion. The majority con-
cludes that it would “not effectuate the purposes of the
Act” to permit partial withdrawal. Here, the majority
2 Counsel for the General Counsel’s Answering Brief to Respond-
ent’s Exceptions to the Administrative Law Judge’s Decision at 23–37
(March 14, 2019).
800 RIVER ROAD OPERATING COMPANY, LLC D/B/A CARE ONE AT NEW MILFORD 3
offers several reasons for denying the Charging Party’s
motion: (1) that “the Board and the parties have already
expended significant resources in the litigation of this
case;” (2) that “there is no evidence that the Respondent
has either remedied the violations found by the Adminis-
trative Law Judge or reached a settlement with the Charg-
ing Party;” (3) that the motion “only seeks withdrawal of
the charge in part; thus, the Board will have to continue
processing the case in any event; and (4) that “this case
presents the Board with an opportunity to address signifi-
cant issues of law under the National Labor Relations Act
involving the obligation . . . of employers to engage in bar-
gaining before imposing discipline on employees” (a ref-
erence to the overruling of Total Security). None of these
reasons, separately or together, justify denying the Charg-
ing Party’s motion.
First, it would be one thing for the majority to say that
the Board should act in order to ensure that the violations
found by the judge will be remedied. But if the majority
overrules Total Security—as seems likely—then the vio-
lations found by the judge will fall with it. Thus, the ma-
jority’s rationale here—the importance of remedying vio-
lations—would be revealed as a pretext, damaging to the
institutional integrity of the Board. Put another way, it
would not be appropriate for the majority to force the
Charging Party to proceed, simply to ensure that it loses.
Second, it is manifestly not true that “this case presents
the Board with an opportunity to address” Total Secu-
rity—at least a legitimate opportunity. The developments
in the case—first, the General Counsel’s change in posi-
tion to advocate for reversal of current law, and then the
Charging Party’s subsequent decision to seek withdrawal
of the charge—mean that there is no longer a live dispute
over the Total Security issue. The only party that intended
to seek a remedy under current law no longer seeks that
remedy, while the two entities seeking to continue the lit-
igation, the General Counsel and the Respondent, are no
longer adversarial: they are seeking the same outcome.
The adversarial process at the heart of Board adjudication
requires more to function properly: parties with a stake in
the case actively advocating opposing views.3 “With one

3 See generally U.S. Parole Comm’n v Geraghty, 445 U.S. 388, 395–
396 (1980) (discussing mootness with respect to constitutional “case or
controversy” requirement for federal jurisdiction).
4 Snohomish County Headstart, 254 NLRB 1372, 1372 (1981) (citing
Sec. 102.98 of Board’s Rules and Regulations, providing for advisory
opinions with respect to applicability of Board’s discretionary jurisdic-
tional standards where state proceeding is ongoing).
5 E.g., Dow Chemical Co., 349 NLRB 104 (2007).
6 Id. at 104 (emphasis added).
7 Id. at 105 (emphasis added).
8 Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017),
vacated 366 NLRB No. 26 (2018).
exception,” not implicated today, “the Board does not ren-
der advisory opinions.”4
The majority’s other arguments are similarly unpersua-
sive. The majority insists that because “significant re-
sources” have already been spent in litigation, and because
the case will continue even if partial withdrawal of the
charge is permitted, the Board might as well decide the
Total Security issue. But by that standard, the Board
should never permit withdrawal of a charge once a case
has reached the Board, and it should never permit resolu-
tion of only part of a case. Of course, the Board has done
both things at once, appropriately.5 As the Board has ex-
plained, the proper focus is whether the “expenditure of
further potentially significant resources best serves the
public interest.”6 Here, the majority insists that it must
expend further resources to decide the Total Security issue
in order to provide “guidance” to the Respondent and
other employers. But existing Board precedent already
provides that guidance, and the Board has explained
“[a]lthough Board decisions do provide guidance, the
Board’s primary purpose is to resolve actual disputes.”7
There is no such actual dispute here.
Unfortunately, today’s decision is only the latest exam-
ple of a larger pattern of procedural overreach by the cur-
rent majority. In Hy-Brand,8 for example, the majority at-
tempted to reverse the Board’s joint-employer standard in
a case where no party asked it to do so, where the new
standard did not impact the outcome of the case, and
where the case could have been decided without reaching
the joint-employer issue at all—as it ultimately was upon
reconsideration.9 Similarly, in PCC Structurals,10 the ma-
jority seized on an otherwise straightforward case involv-
ing a bargaining unit that was manifestly appropriate un-
der a narrow doctrine of current law (which the Board did
not purport to change)11 to make sweeping and unwar-
ranted changes to the Board’s overall approach in as-
sessing the appropriateness of bargaining units. In Boe-
ing,12 the majority reversed settled law sua sponte and
without public participation, adopting a comprehensive
framework for evaluating employer rules that went far be-
yond the single rule presented in the case, categorically
9 Hy-Brand Industrial Contractors, Ltd., 366 NLRB No. 94 (2018).
10 365 NLRB No. 160 (2017).
11 Id., slip op. 13 at fn. 27 (dissenting opinion of Member McFerran)
(explaining that the unit in question could be found appropriate in a man-
ner not implicating the question whether to overturn Specialty
Healthcare because it was a traditional craft unit of the type that the
Board has found to be presumptively appropriate, and noting that the
Board had previously found similar units of welders in the aerospace in-
dustry to be appropriate on this rationale).
12 Boeing Co., 365 NLRB No. 154 (2017).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
adjudicating the lawfulness of specific, unrelated rules not
before the Board. In Ridgewood,13 the majority reversed
precedent and permitted a successor employer guilty of
discrimination to make unilateral changes in working con-
ditions, instead of finding a violation on an alternative ba-
sis fully supported by the record.
Adding today’s decision to the mix, it becomes increas-
ingly clear that the current majority is inclined to disregard
the nature of the contested issues actually presented for
adjudication in the case before them—or in this case the
absence of such contested issues—and instead view the
facts of the case as a mere jumping-off point to enable dis-
cussion of the issues it wants to address and the precedents
it wants to overrule. There is no shortage of significant
issues under the National Labor Relations Act. But the
Board cannot and should not reach out to address them
wherever it likes, based simply on a predetermined desire
to change the law at the first conceivable opportunity.
Following such a course does damage to both the law and
to the Board.14
The Board can act via adjudication when there is a case
or controversy presented, or it can act via rulemaking
when it wants to address an issue in the absence of a spe-
cific case or controversy. What it cannot do is act via ad-
judication in the absence of a case or controversy because
it wants to change the law as quickly as possible.15 Man-
ufacturing an occasion to overrule precedent is the essence
of arbitrary and capricious agency action. Accordingly, I
dissent.
Dated, Washington, D.C. August 29, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD

13 Ridgewood Health Care Center, Inc. and Ridgewood Health Ser-
vices, Inc., 367 NLRB No. 110 (2019).
14 Even if the Board majority cannot be swayed from using this case
to revisit Total Security, at a minimum it should not only be transparent
about its intentions, but it should also issue a notice and invitation to file
briefs, so that interested members of the public can weigh in. The ma-
jority cites the prospect of amicus briefs here—“once this Order is pub-
lished and the broader public is put on notice that reconsideration of To-
tal Security is sought”—but it inexplicably fails to issue a notice and in-
vitation to file briefs. The current majority has occasionally issued such
notices when it has contemplated reversing precedent, see, e.g., Notice
and Invitation to File Briefs, Loshaw Thermal Technology, LLC, Case
05–CA–15860 (Sept. 11, 2018), but more often has not (with no clear
rationale for which approach is followed). See, e.g., Johnson Controls,
368 NLRB No. 20, slip op. at 14 (2019) (Member McFerran, dissenting);
UPMC, 368 NLRB No. 2, slip op. at 15 & fn. 56 (2019) (Member McFer-
ran, dissenting); SuperShuttle DFW, Inc., 367 NLRB No. 75, slip op. at
15 & fn. 2 (2019) (Member McFerran, dissenting); Alstate Maintenance,
LLC, 367 NLRB No. 68, slip op. at 12 & fn. 18 (2019) (Member McFer-
ran, dissenting); E.I. Du Pont de Nemours, Louisville Works, 367 NLRB
No. 12, slip op. at 3–4 (2018) (Member McFerran, dissenting); Boeing
Co., supra, 366 NLRB No. 128, slip op. at 9–10 (Members Pearce and
McFerran, dissenting); Raytheon Network Centric Systems, 365 NLRB
No. 161, slip op. at 22 (2017) (Members Pearce and McFerran,
dissenting); PCC Structurals, Inc., supra, slip op. at 14, 16 (Members
Pearce and McFerran, dissenting); Hy-Brand Industrial Contractors,
Ltd. and Brandt Construction Co., supra, 365 NLRB No. 156, slip op. at
36, 38 (Members Pearce and McFerran, dissenting), vacated 366 NLRB
No. 26 (2018); Boeing Co., 365 NLRB No. 154, slip op. at 30–31
(2017) (Member McFerran, dissenting); UPMC, 365 NLRB No. 153,
slip op. at 17–19 (2017) (Member McFerran, dissenting). Here, it would
be improper to rely solely on the brief of the Charging Party, given its
demonstrated desire to terminate the litigation.
15 Contrary to the majority’s claim, I do not argue that the “case or
controversy” requirement applicable to Article III courts applies to the
Board. My point, rather, is that in exercising its discretion to dismiss a
matter as moot, an administrative agency such as the Board necessarily
“receives guidance from the policies that underlie the ‘case or contro-
versy’ requirement of [A]rticle III” and “is informed by an examination
of the proper institutional role of an adjudicatory body and a concern for
judicial economy.” Climax Molybdenum Co. v. Secretary of Labor, 703
F.2d 447, 451 (10th Cir. 1983) (holding that Federal Mine Safety and
Health Review Commission did not abuse discretion in affirming dismis-
sal of administrative proceeding contesting safety citations after Secre-
tary of Labor vacated citations, and rejecting mine operator’s argument
that it was entitled to interpretation of safety standard underlying cita-
tions). That is the approach the Board has followed before today. See,
e.g., Dow Chemical Co., supra, 349 NLRB at 104–105.