Essex Valley Visiting Nurses Association

National Labor Relations Board - Board Decisions

Nov 16, 2010

356 N.L.R.B. 146 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 146
Essex Valley Visiting Nurses Association and New
Community Corporation and New Community
Health Care, Inc. and Health Professional and
Allied Employees, Local 5122. Case 22–CA–
24770
November 16, 2010
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On April 30, 2008, the two sitting members of the
Board issued a Supplemental Decision and Order in this
proceeding, which is reported at 352 NLRB 427 (2008).1
Thereafter, the Respondents filed a petition for review in
the United States Court of Appeals for the District of
Columbia Circuit, and the General Counsel filed a cross-
application for enforcement. On June 17, 2010, the
United States Supreme Court issued its decision in New
Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, holding that
1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
under Section 3(b) of the Act, in order to exercise the
delegated authority of the Board, a delegee group of at
least three members must be maintained. Thereafter, the
court of appeals remanded this case for further proceed-
ings consistent with the Supreme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and conclu-
sions, and to adopt the recommended Order to the extent
and for the reasons stated in the decision reported at 352
NLRB 427 (2008), which is incorporated herein by ref-
erence.3
2 Consistent with the Board’s general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the members who participated in the original deci-
sion. Furthermore, under the Board’s standard procedures applicable to
all cases assigned to a panel, the Board Members not assigned to the
panel had the opportunity to participate in the adjudication of this case
at any time up to the issuance of this decision.
3 In incorporating the prior decision, Member Becker notes that,
whether the Board applies the law pertaining to employee mitigation
efforts set forth in St. George Warehouse, 351 NLRB 961 (2007), or
the legal principles applied by the judge in her decision, the outcome of
this case is unchanged. It is clear that the discriminatees engaged in
reasonable job searches.
356 NLRB No. 18