REHABCARE GROUP OF CALIFORNIA, LLC D/B/A REHABCARE

National Labor Relations Board - Board Decisions

May 23, 2014

21-RC-116808 (N.L.R.B. May. 23, 2014)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
REHABCARE GROUP OF CALIFORNIA,
LLC d/b/a REHABCARE
Employer
and Case 21-RC-116808
NATIONAL UNION OF HEALTHCARE
WORKERS (NUHW-CNA)
Petitioner
ORDER
The Employer’s request for special permission to appeal the Regional Director’s
Order Withdrawing Approval of the Stipulated Election Agreement and Order Cancelling
Election is granted.1 Because the Regional Director did not abuse her discretion, the
appeal is denied on the merits.2

1 We have treated the Employer’s Request for Review as a request for special
permission to appeal.
2 The Employer communicated to the Board Agent its acceptance of the Union’s
proposed unit description after the Agent informed the Employer of the Agent’s
understanding that the classifications set forth in the description would result in a unit of
“20 or so” employees. Thereafter, however, the Employer submitted a voter list that
included only 10 names. The Board’s Casehandling Manual contemplates this very
scenario, stating: “The Regional Director retains authority to revoke his/her approval of
an election agreement for cause at any time before the election. For example, if after
review of the Excelsior list of eligible voters (Sec. 11312.1), the number or nature of
potential challenges raised is so extensive as to cause serious questions concerning the
intent or understanding of the parties, such challenges may be the basis for revoking
approval.” NLRB Casehandling Manual, Part Two, Representation Proceedings, Sec.
11095. Under these circumstances and faced with the prospect that approximately half
of the employees would be voting subject to challenge, the Regional Director did not
abuse her discretion in setting aside the agreement.
Member Miscimarra would grant the Employer’s appeal and find that the Union
remains bound by its agreement. See Laidlaw Transit, Inc., 322 NLRB 895, 895 (1997)
(a stipulated election agreement “is a binding contract to which the parties will be held”).
The Union proposed a unit consisting of six job classifications. The Employer accepted
the Union’s proposal, and the parties entered into a stipulated election agreement that
included all full-time and regular part-time employees in the six classifications the Union
had proposed, and the agreement excluded “all other employees.” The parties’ intent
was clear and unambiguous. See, e.g., Bell Convalescent Hospital, 337 NLRB 191
2
MARK GASTON PEARCE, CHAIRMAN
PHILIP A. MISCIMARRA, MEMBER
KENT Y. HIROZAWA, MEMBER
Dated, Washington, D.C., May 23, 2014

(2001), which stated: “The Board will find a clear intent to include those classifications
that match the express language [of the stipulation], and will find a clear intent to
exclude those classifications not matching the stipulated bargaining unit description. . . .
[I]f the classification is not included, and there is an exclusion for ‘all other employees,’
the stipulation will be read to clearly exclude that classification.” “The Board bases this
approach on the expectation that the parties know the eligible employees’ job titles, and
intend their descriptions in the stipulation to apply to those job titles.” Halsted
Communications, 347 NLRB 225 (2006). In these circumstances, contrary to my
colleagues’ view, the number of potential challenges does not raise a serious question
concerning the intent of the parties, as that intent is unambiguously established by the
stipulation. To the extent that a party discovers that there were fewer employees than it
had anticipated in classifications that were stipulated to using the names of the
classifications, Member Miscimarra would find this does not constitute an “unusual
circumstance” warranting withdrawal from the stipulation. Sunnyvale Medical Clinic,
241 NLRB 1156, 1157 (1979).