CHAMPLIN SHORES ASSISTED LIVING

National Labor Relations Board - Board Decisions

Oct 31, 2014

361 N.L.R.B. 901 (N.L.R.B. 2014)

CHAMPLIN SHORES ASSISTED LIVING 901
Champlin Shores Assisted Living and SEIU
Healthcare Minnesota. Cases 18–RC–087228 and
18–CA–093766
October 31, 2014
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
On February 14, 2013, the Board issued a Decision
and Order in this proceeding, which is reported at 359
NLRB No. 63 (not reported in Board volumes). Thereaf-
ter, the Respondent filed a petition for review in the
United States Court of Appeals for the District of Co-
lumbia Circuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the Board
issued an order setting aside the Decision and Order, and
retained this case on its docket for further action as ap-
propriate.
The National Labor Relations Board has consolidated
the underlying representation proceeding with this unfair
labor practice proceeding and delegated its authority in
both proceedings to a three-member panel.
This is a refusal-to-bargain case in which the Re-
spondent is contesting the certification of SEIU
Healthcare Minnesota (the Union) as bargaining repre-
sentative in the underlying representation proceeding.
The Board’s February 14, 2013 decision states that the
Respondent is precluded from litigating any representa-
tion issues because, in relevant part, they were or could
have been litigated in the prior representation proceed-
ing. The prior proceeding, however, also occurred at a
time when the composition of the Board included two
persons whose appointments to the Board had been chal-
lenged as constitutionally infirm, and we do not give it
preclusive effect. Accordingly, we consider below the
representation issues that the Respondent has raised in
this proceeding.
In Case 18–RC–087228, the Union petitioned to repre-
sent a unit including resident assistants and medication
technicians but excluding all other employees. The Re-
spondent argued that the unit must also include all wait
staff, kitchen helpers, and the life enrichment assistant.
Applying Specialty Healthcare & Rehabilitation Center
of Mobile, 357 NLRB 934 (2011), enfd. Kindred Nursing
Center East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013),
the Regional Director found that the petitioned-for unit
was appropriate. The Respondent filed a request for re-
view arguing that Specialty Healthcare was wrongly
decided and that, in any event, the petitioned-for unit was
not appropriate.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
representation issues raised by the Respondent, and we
find them without merit. Accordingly, we deny the Re-
quest for Review in Case 18–RC–087228 as it raises no
substantial issues warranting review.1
We next consider the question whether the Board can
rely on the results of the election. For the reasons stated
below, we find that the election was properly held and
the tally of ballots is a reliable expression of the employ-
ees’ free choice.
As an initial matter, had the Board decided not to issue
decisions during the time that the composition of the
Board included two persons whose appointments to the
Board had been challenged as constitutionally infirm, the
Regional Director would have conducted the election as
scheduled and counted the ballots. In this regard, Sec-
tion 102.67(b) of the Board’s Rules and Regulations
states, in relevant part:

The Regional Director shall schedule and conduct any
election directed by the [Regional Director’s] decision
notwithstanding that a request for review has been filed
with or granted by the Board. The filing of such a re-
quest shall not, unless otherwise ordered by the Board,
operate as a stay of the election or any other action tak-
en or directed by the Regional Director: Provided,
however, That if a pending request for review has not
been ruled upon or has been granted[,] ballots whose
validity might be affected by the final Board decision
shall be segregated in an appropriate manner, and all
ballots shall be impounded and remain unopened pend-
ing such decision. (Emphasis in original.)

See also Casehandling Manual, Part 2, Representation Pro-
ceedings, Sections 11274, 11302.1(a) (same).
However, this vote and impound process does not ap-
ply when the Board lacks a quorum. In this regard, Sec-
tion 102.182 of the Board’s Rules and Regulations states:

Representation cases should be processed to certifica-
tion.—During any period when the Board lacks a quor-
1 In denying review, we observe that no party requested review of
the Regional Director’s finding that the wellness coordinator is a super-
visor within the meaning of Sec. 2(11) of the Act.
361 NLRB No. 92

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 902
um, the second proviso of § 102.67(b) regarding the au-
tomatic impounding of ballots shall be suspended. To
the extent practicable, all representation cases should
continue to be processed and the appropriate certifica-
tion should be issued by the Regional Director notwith-
standing the pendency of a request for review, subject
to revision or revocation by the Board pursuant to a re-
quest for review filed in accordance with this subpart.

Thus, it is clear that the decision of the Board to con-
tinue to issue decisions did not affect the outcome of the
election. With or without a decision on the original Re-
quest for Review, the election would have been conduct-
ed as scheduled. This result is required by Section
102.67(b) of the Board’s Rules, and, under Noel Can-
ning, the sitting Board Members did not have the authori-
ty to issue an order directing otherwise. Thus, the timing
of the election was not affected by the issuance of a deci-
sion on the Request for Review, and we find that the de-
termination by the Regional Director to open and count
the ballots was appropriate and in accordance with Sec-
tion 102.182. In any event, the actions of the Regional
Director did not affect the tally of ballots. Accordingly,
we will rely on the results of the election and issue an
appropriate certification.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for SEIU Healthcare Minnesota, and that it is
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:

All full-time, regular part-time, and casual/on call resi-
dent assistants and medication technicians employed by
the Employer at its Champlin, Minnesota facility*; ex-
cluding all other employees, office clerical employees,
managerial employees, and guards and supervisors as
defined in the Act. *The parties stipulated at the hear-
ing that regular part-time and casual/on call employees
are limited by the standard established in Davison-
Paxon Co., 185 NLRB 2 (1970).
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 Appeal. Although
the Respondent’s legal position may remain unchanged,
it is possible that the Respondent has or intends to com-
mence 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 November 10, 2014, to conform
with the current state of the evidence.
2. The Respondent’s answer to the amended complaint
is due on or before November 24, 2014.
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before December 15, 2014 (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 sup-
port of the motion shall be filed by the same date.