San Miguel Hospital Corp., d/b/a Alta Vista Regional Hospital

National Labor Relations Board - Board Decisions

Sep 30, 2010

355 N.L.R.B. 1281 (N.L.R.B. 2010)

ALTA VISTA REGIONAL HOSPITAL
355 NLRB No. 212
1281
San Miguel Hospital Corp. d/b/a Alta Vista Regional
Hospital and District 1199NM, National Union
of Hospital and Healthcare Employees. Cases
28–CA–21896 and 28–RC–6518
September 30, 2010
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
On June 30, 2008, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 352 NLRB 809.1 Thereafter, the
Respondent filed a petition for review in the United
States Court of Appeals for the District of Columbia Cir-
cuit, 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 under Section
3(b) of the Act, in order to exercise the delegated author-
ity of the Board, a delegee group of at least three mem-
bers must be maintained. Thereafter, the court of appeals
remanded this case for further proceedings consistent
with the Supreme Court’s decision.
The National Labor Relations Board has consolidated
these proceedings and delegated its authority in both pro-
ceedings to a three-member panel.2
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. The Board’s June 30, 2008 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-
ings. One prior representation proceeding, however, was
also a two-member decision and we do not give it preclu-
sive effect.3

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.
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 remaining member who participated in the origi-
nal decision. 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 adjudica-
tion of this case prior to the issuance of this decision.
3 On the other hand, in an earlier proceeding in Case 28–RC–6518,
the Respondent requested review of the Regional Director’s Decision
We have considered the postelection representation is-
sues raised by the Respondent. The Board has reviewed
the record in light of the exceptions and brief, and has
adopted the hearing officer’s findings and recommenda-
tions to the extent and for the reasons stated in the March
4, 2008 Decision and Certification of Representative,
which is incorporated herein by reference.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for District 1199NM, National Union of Hospi-
tal and Healthcare Employees, and that it is the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time professional em-
ployees, including registered nurses, registered nurse
rotating team leaders, registered nurse case manager, li-
censed practical nurse case manager, cardiac catheriti-
zation laboratory supervisors, medical technologists,
nuclear medicine technicians, pharmacists, registered
pharmacists, occupational therapists, physical thera-
pists, registered respiratory therapists, speech patholo-
gists, and nonprofessional employees, including all
technical employees, skilled maintenance employees,
business office employees, and other nonprofessional
employees, and per diem employees averaging four or
more hours of work per week for the last quarter prior
to the eligibility date, employed by the Employer at its
hospital located in Las Vegas, New Mexico; excluding
all employees employed at clinics, physicians, regis-
tered nurse permanent team leaders, house supervisors,
human resource assistants, executive assistants, medi-
cal staff coordinator, staffing coordinator, confidential
employees, guards and supervisors as defined in the
Act.
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 Appeals. Al-
though Respondent’s legal position may remain un-
changed, it is possible that the Respondent has or intends
to commence 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,

and Direction of Election, and a three-member Board issued an Order
denying request for review on August 2, 2007. That Order has preclu-
sive effect.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1282
1. The General Counsel is granted leave to amend the
complaint on or before October 10, 2010, to conform
with the current state of the evidence;
2. The Respondent’s answer to the amended complaint
is due on or before October 24, 2010; and
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before November 14, 2010 (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.