Shore Acres Rehabilitation

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 679 (N.L.R.B. 2010)

SHORE ACRES REHABILITATION & NURSING CENTER. LLC
355 NLRB No. 143
679
Snell Island SNF LLC d/b/a Shore Acres Rehabilita-
tion and Nursing Center, LLC, and HGOP,
LLC d/b/a Cambridge Quality Care, LLC, and
United Food and Commercial Workers Union,
Local 1625. Cases 12–CA–25854 and 12–RC–
9281
August 27, 2010
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On July 18, 2008, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 352 NLRB No. 106.1 Thereafter, the
Respondent filed a petition for review in the United States
Court of Appeals for the Second Circuit, and the General
Counsel filed a cross-application for enforcement. On
June 17, 2009, the court enforced the Board’s Decision
and Order. Snell Island SNF v. NLRB, 568 F.3d 410 (2d
Cir. 2009). 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 authority of the
Board, a delegee group of at least three members must be
maintained. On June 28, 2010, the Supreme Court granted
the petition for certiorari, vacated the underlying judg-
ment, and remanded the case to the court of appeals.
Thereafter, the court of appeals remanded this case to the
Board 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 proceeding.
The Board’s July 18, 2008 decision states that the Re-

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 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
prior to the issuance of this decision.
spondent is precluded from litigating any representation
issues because, in relevant part, they were or could have
been litigated in the prior representation proceeding. The
prior proceeding, however, was also a two-member deci-
sion and we do not give it preclusive effect.
We have also considered the postelection representation
issues raised by the Respondent. The Board has reviewed
the record in light of the exceptions and brief, and has
adopted the Regional Director’s findings and recommen-
dations to the extent and for the reasons stated in the
March 13, 2008 Decision and Certification of Representa-
tive, which is incorporated herein by reference.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for United Food and Commercial Workers Un-
ion, Local 1625, and that it is the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:
All full-time, regular part-time and PRN Certified
Nursing Assistants, restorative aides, staffing coordi-
nators, ward clerks, central supply clerks, cooks, die-
tary aides, housekeeping assistants, laundry aides,
maintenance assistants, activity assistants and recep-
tionists employed by the joint Employers at Shore
Acres Rehabilitation and Nursing Center facility lo-
cated at 4500 Indianapolis Street NE, St. Petersburg,
Florida, excluding all other employees, including
MDS Coordinator, registered nurses, licensed practi-
cal nurses, therapists, managerial 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. Although
Respondent’s legal position may remain unchanged, 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,
1. The Acting General Counsel is granted leave to
amend the complaint on or before September 6, 2010, to
conform with the current state of the evidence;
2. The Respondent’s answer to the amended complaint
is due on or before September 20, 2010; and
3. NOTICE IS HEREBY GIVEN that cause be shown, in writ-
ing, on or before October 12, 2010 (with affidavit of service
on the parties to this proceeding), as to why the Board
should not grant the Acting General Counsel’s Motion for
Summary Judgment. Any briefs or statements in support of
the motion shall be filed by the same date.