SUB-ACUTE REHABILITATION CENTER AT KEARNY, LLC d/b/a BELGROVE POST ACUTE CARE CENTER

National Labor Relations Board - Board Decisions

Nov 25, 2014

361 N.L.R.B. 964 (N.L.R.B. 2014)

964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sub-Acute Rehabilitation Center at Kearny, LLC
d/b/a Belgrove Post Acute Care Center and Dis-
trict 1199J NUHHCE, AFSCME, AFL–CIO.
Cases 22–CA–093626 and 22–RC–080916
November 25, 2014
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
On March 13, 2013, the National Labor Relations
Board issued a Decision and Order in this proceeding,
which is reported at 359 NLRB 683. Thereafter, the
General Counsel filed an application for enforcement in
the United States Court of Appeals for the Third Circuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. 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
the underlying representation proceeding with this unfair
labor practice proceeding and delegated its authority in
both proceedings to a three-member panel.
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. The Board’s March 13, 2013 decision states
that the Respondent is precluded from litigating any rep-
resentation issues because, in relevant part, they were or
could have been litigated in the prior representation pro-
ceeding. The prior proceeding, however, also occurred at
a time when the composition of the Board included two
persons whose appointments to the Board had been chal-
lenged as constitutionally infirm, and we do not give it
preclusive effect. Accordingly, we consider below the
representation issues that the Respondent has raised in
this proceeding.
In its response to the Notice to Show Cause, the Re-
spondent reiterates its preelection argument that the Re-
gional Director erred in finding that its licensed practical
nurses are not supervisors.1
1 The Respondent also contends that the complaint should be dis-
missed or a hearing held because the initial charge was not properly
served upon the Respondent. We find no merit to this contention.
First, it is uncontested that the Region served the charge on the Re-
spondent’s attorney of record in the underlying representation proceed-
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
Respondent’s request for review of the Regional Direc-
tor’s Decision and Direction of Election, and we find the
Respondent’s arguments to be without merit. According-
ly, we affirm the decision to deny the Request for Re-
view in the prior proceeding.2
We next consider the question whether the Board can
rely on the results of the election. For the reasons stated
below, we find that the election was properly held and
the tally of ballots is a reliable expression of the employ-
ee’s free choice.
As an initial matter, had the Board decided not to issue
decisions during the time that the composition of the
Board included two persons whose appointments to the
ing. This same attorney entered a notice of appearance on behalf of the
Respondent 4 days after being served with the charge, and filed a time-
ly answer to the complaint and a response to the Notice to Show Cause.
The affidavit of service of the charge is included in the documents
supporting the Acting General Counsel’s motion for summary judg-
ment, showing the date as alleged, and the Respondent has not chal-
lenged the authenticity of these documents. Accordingly, we find that
the Respondent had notice of the filing of the charge. See Pasco Pack-
ing Co., 115 NLRB 437, 438 (1956) (adequate notice given to respond-
ent by service of documents on attorney of record in representation
proceeding, from which the unfair labor practice proceeding emanated).
Second, it is also uncontested that the Region served the charge on the
Respondent by facsimile. The Board has held that technical defects in
the form of service will not necessarily invalidate the service. See
Control Services, 303 NLRB 481, 481 (1991) (“when charges have in
fact been received, technical defects in the form of service do not affect
the validity of the service”), enfd. mem. 961 F.2d 1568 (3d Cir. 1992).
Third, the complaint was properly served on the Respondent (and its
attorney of record) within the 10(b) period. Thus, even assuming the
charge was not properly served on the Respondent in a timely manner,
such a failure “will be cured by timely service within the 10(b) period
of a complaint on the respondent, absent a showing that the respondent
is prejudiced by [the] circumstances.” Buckeye Plastic Molding, 299
NLRB 1053, 1053 (1990). Here, there has been no assertion, much less
a showing, of prejudice to the Respondent in this proceeding.
The Respondent’s final argument is that the complaint should be
dismissed because the Acting General Counsel could not properly be
appointed under the Federal Vacancies Reform Act and therefore
lacked authority to issue the complaint in this case. For the reasons
stated in Benjamin H. Realty Corp., 361 NLRB 918, 918 (2014), we
reject this argument.
2 In denying review of the Regional Director’s finding that the Em-
ployer has failed to establish that the LPNs are statutory supervisors
based on their authority to assign employees, we find, as did the Re-
gional Director, that, even assuming that LPNs have the authority to
assign CNAs, the Employer has failed to show that LPNs exercise
independent judgment in making such assignments.
In finding that the Employer failed to establish that the LPNs have
the authority to adjust grievances, the Regional Director pointed to the
minor character of the grievances resolved by the LPNs, some of which
involved patient complaints. We find it unnecessary to characterize the
grievances or to address whether the resolution of patient complaints is
relevant to the grievance adjustment indicia of Sec. 2(11) authority
because the evidence fails to show that LPNs use independent judgment
in resolving them.
361 NLRB No. 118

BELGROVE POST ACUTE CARE CENTER 965
Board had been challenged as constitutionally infirm, the
Regional Director would have conducted the election as
scheduled and counted the ballots. In this regard, Sec-
tion 102.67(b) of the Board’s Rules and Regulations
states:

The Regional Director shall schedule and conduct any
election directed by the [Regional Director’s] decision
notwithstanding that a request for review has been filed
with or granted by the Board. The filing of such a re-
quest shall not, unless otherwise ordered by the Board,
operate as a stay of the election or any other action tak-
en or directed by the Regional Director: Provided,
however, That if a pending request for review has not
been ruled upon or has been granted[,] ballots whose
validity might be affected by the final Board decision
shall be segregated in an appropriate manner, and all
ballots shall be impounded and remain unopened pend-
ing such decision. (Emphasis in original).

See also Casehandling Manual, Part 2, Representation
Proceedings, Sections 11274, 11302.1(a) (same). How-
ever, this vote and impound process does not apply when
the Board lacks a quorum. In this regard, Section
102.182 of the Board’s Rules and Regulations states:

Representation cases should be processed to certifica-
tion.—During any period when the Board lacks a quor-
um, the second proviso of § 102.67(b) regarding the au-
tomatic impounding of ballots shall be suspended. To
the extent practicable, all representation cases should
continue to be processed and the appropriate certifica-
tion should be issued by the Regional Director notwith-
standing the pendency of a request for review, subject
to revision or revocation by the Board pursuant to a re-
quest for review filed in accordance with this subpart.

Thus, it is clear that the decision of the Board to con-
tinue to issue decisions did not affect the outcome of the
election. With or without a decision on the original Re-
quest for Review, the election would have been conduct-
ed as scheduled. This result is required by Section
102.67(b) of the Board’s Rules, and, under Noel Can-
ning, the sitting Board Members did not have the authori-
ty to issue an order directing otherwise. Thus, the timing
of the election was not affected by the issuance of a deci-
sion on the Request for Review, and we find that the de-
cision of the Regional Director to open and count the
ballots was appropriate and in accordance with Section
102.182. In any event, the actions of the Regional Direc-
tor did not affect the tally of ballots. Accordingly, we
will rely on the results of the election and issue an ap-
propriate certification. See also Champlin Shores Assist-
ed Living, 361 NLRB 901, 901–902 (2014).
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for District 1199J, National Union of Hospital
and Health Care Employees, AFSCME, AFL–CIO, and
that it is the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:

All full-time, regular part-time, and per-diem Licensed
Practical Nurses employed by the Employer at its
Kearny, New Jersey facility, excluding all other em-
ployees, guards and supervisors as defined by 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. Alt-
hough the 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,
1. The General Counsel is granted leave to amend the
complaint on or before December 5, 2014, to conform
with the current state of the evidence.
2. The Respondent’s answer to the amended complaint
is due on or before December 19, 2014.
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before January 9, 2015 (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 support of the motion shall be filed by the
same date.