A & C Healthcare Services, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 2011

356 N.L.R.B. 735 (N.L.R.B. 2011)

A & C HEALTHCARE SERVICES 735
A & C Healthcare Services, Inc. and Service Employ-
ees International Union, United Healthcare
Workers—West. Cases 20–CA–33588 and 20–
CA–33780
February 25, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
On June 8, 2009, the two sitting members of the Board
issued a Decision and Order in this proceeding, which is
reported at 354 NLRB 275 (2009).1 On June 17, 2010,
the United States Supreme Court issued its decision in
New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, hold-
ing that under Section 3(b) of the Act, in order to exer-
cise the delegated authority of the Board, a delegee group
of at least three members must be maintained.
On September 29, 2010, the Acting General Counsel
requested, in view of the Court’s decision in New Pro-
cess Steel, that a duly constituted Board review this case
on the grounds that the Union has filed a new charge in
Case 20–CA–35111 alleging that during the 6 months
prior to the filing of that charge the Respondent failed
and refused to bargain in good faith with the Union and
made unilateral changes to terms and conditions of em-
ployment. Since the bad-faith bargaining allegation in
the new charge is premised on a bargaining obligation,
and there is no definitive Board Order establishing that
such a bargaining obligation exists, the Acting General
Counsel states that “[i]n order for the Region to deter-
mine the merits of the bad-faith bargaining allegation in
[C]ase 20–CA–35111, it is necessary as a predicate [for]
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.
the Board to determine whether Respondent has a duty to
bargain with the Union, as alleged by the complaint and
found in the ALJD, in Cases 20–CA–33588 and 20–CA–
33780.” The Acting General Counsel also states that for
the Region to determine the merits of the new bad-faith
bargaining allegation, it must consider “the totality of
circumstances surrounding the current negotiations be-
tween the parties, including Respondent’s prior conduct
as described in the ALJD in Cases 20–CA–33588 and
20–CA–33780.” The Acting General Counsel’s motion
is unopposed.
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 to the extent
and for the reasons stated in the decision reported at 354
NLRB 275 (2009), which is incorporated by reference.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified in 354 NLRB 275 and orders that the Respond-
ent, A & C Healthcare Services, Inc., Millbrae, Califor-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
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. Member Becker is recused and did not participate in the
consideration of this case.
3 Chairman Liebman joins in this decision granting the Acting Gen-
eral Counsel’s motion solely because it is unopposed. Member Hayes
agrees with the position taken by former Member Schaumber that,
because it makes no difference in this case whether the Respondent was
a “perfectly clear” successor, there is no need to pass on the judge’s
observations about whether there should be an exception for such a
successor who elects to acquire a business through a bankruptcy auc-
tion.

356 NLRB No. 100