Legacy Health Systems

National Labor Relations Board - Board Decisions

Aug 9, 2010

355 N.L.R.B. 408 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 76
408
Legacy Health System and Service Employees Inter-
national Union, Local 49. Case 36–CA–10299
August 9, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On July 13, 2009, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 354 NLRB 337.1 Thereafter, the
General Counsel filed an application for enforcement in
the United States Court of Appeals for the Ninth Circuit.
On June 17, 2010, the United States Supreme Court is-
sued its decision in New Process Steel, L.P. v. NLRB,
130 S.Ct. 2635, holding that 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

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.
this case for further proceedings consistent with the Su-
preme 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 for the rea-
sons stated in the decision reported at 354 NLRB 337
(2009), which is incorporated herein by reference, and as
modified in fn. 3, below.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 As stated in the incorporated decision, we find, under the “com-
paratively slight” legal analysis set forth in the Supreme Court’s deci-
sion in NLRB v. Great Dane Trailers, 388 U.S. 26, 34 (1967), that the
Respondent’s dual-employment policy discriminated on the basis of
Sec. 7 considerations and violated Sec. 8(a)(3) and (1).
Though they find it unnecessary to pass on the theory for purposes
of disposition of this case, Chairman Liebman and Member Pearce
would agree with the judge, for the reasons he stated, that the Respon-
dent’s dual-employment policy would be unlawful under the “inher-
ently destructive” legal theory of Great Dane.