DHSC, LLC d/b/a Affinity Medical Center

National Labor Relations Board - Unpublished Board Decisions

Apr 30, 2013

08-CA-090083 (N.L.R.B. Apr. 30, 2013)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DHSC, LLC, d/b/a AFFINITY
MEDICAL CENTER
and Cases 08-CA-090083
08-CA-090193
NATIONAL NURSES 08-CA-093035
ORGANIZING COMMITTEE 08-CA-095833
ORDER
The request of employees Susan Kelley and Cinda Keener (the Movants) for
special permission to appeal Deputy Chief Administrative Law Judge Arthur Amchan’s
Order denying their motion to intervene is denied. We find that the Movants have failed
to establish that the judge abused his discretion in denying the motion. To the extent
the Movants argue that they are being denied due process because the Board has
precluded them from pursuing their objections, we note that under Section 102.9 of the
Board’s Rules and Regulations they were free at any time during the applicable
limitations period to file an unfair labor practice charge alleging that the conduct at issue
2
violated the Act.1
Dated, Washington, D.C., April 30, 2013.
MARK GASTON PEARCE, CHAIRMAN
RICHARD F. GRIFFIN, JR., MEMBER
SHARON BLOCK, MEMBER

1 The Movants contend, in part, that the Board lacks a quorum because the President’s
recess appointments are constitutionally invalid. We reject this argument. We
recognize that the United States Court of Appeals for the District of Columbia Circuit
has concluded that the President’s recess appointments were not valid. See Noel
Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). However, as the court itself
acknowledged, its decision conflicts with rulings of at least three other courts of appeals.
See Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942
(2005); U.S. v. Woodley, 751 F.2d 1008 (9th Cir. 1985); U.S. v. Allocco, 305 F.2d 704
(2d Cir. 1962). This question remains in litigation, and pending a definitive resolution,
the Board is charged to fulfill its responsibilities under the Act. See Sub-Acute
Rehabilitation Center at Kearny d/b/a Belgrove Post Acute Care Center, 359 NLRB No.
77, slip op. 1, fn.1 (2013).