Bon Secours Charity Health Systems, Warwick Healthcare Campus

National Labor Relations Board - Unpublished Board Decisions

Dec 23, 2009

02-RC-023303 (N.L.R.B. Dec. 23, 2009)

NOTINCLUDED LS
IN BOUND VOLUMES Warwick, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BON SECOURS CHARITY HEALTH SYSTEMS,
WARWICK HEALTHCARE CAMPUS
Employer
and Case 2-RC-23303
1199 SEIU, UNITED HEALTHCARE WORKERS EAST
Petitioner
DECISION AND DIRECTION
The National Labor Relations Board' has considered determinative challenges in
an election held October 30, 2008, and the administrative law judge's decision
2recommending disposition of them. The election was conducted pursuant to a
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 Board's powers in anticipation of the expiration of the
terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this
delegation, Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue decisions and
orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. See
Narricot Industries, L.P. v. NLRB,-F.3d_, 2009 WL 4016113 (4th Cir. Nov. 20,
2009); Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), petition for cert.
filed 78 U.S.L.W. 3130 (U.S. Sept. 11, 2009) (No. 09-328); New Process Steel v. NLRB,
564 F.3d 840 (7th Cir. 2009), cert. granted -S.Ct. , 2009 WL 1468482 (U.S. Nov.
2, 2009)- Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for
cert. file 78 U.S.L.W. 3098 (U.S. Aug. 18, 2009)(No. 09-213); Teamsters Local Union
No. 523 v. NLRB, F.3d _, 2009 WL 4912300 (10th Cir. Dec. 22, 2009). But see
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009),
petition for cert. filed 78 U.S.L.W. 3185 (U.S. Sept. 29, 2009) (No. 09-377).
2 The Petitioner filed timely objections to the election. Pursuant to a motion by
the Employer, the judge issued an order bifurcating post-election proceedings. The
objections were held in abeyance pending resolution of the challenges.
Stipulated Election Agreement. The tally of ballots shows 121 votes for and 118 against
the Petitioner, with 11 challenged ballots, a sufficient number to affect the results.
The Board has reviewed the record in light of the exception S3 and briefs, and has
adopted the administrative law judge's findingS4 and recommendations.
DIRECTION
It is directed that the Regional Director for Region 2 shall, within 14 days from the
date of this Decision and Direction, open and count the ballots of Margarita Cortes, Ruth
DeMouth, Anita Hanley, Pura Palma, and Diane Scott. If, after counting these ballots,
the Petitioner has obtained a majority of the valid votes counted, the Regional Director
shall then serve on the parties a revised tally of ballots and issue a certification of
representative. If the Petitioner has not obtained a majority of the valid votes counted,
the Region shall then hold a hearing on the Petitioner's objections.
Dated, Washington, D.C,, December 23, 2009.
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
3 The Employer's Motion to File Untimely Exceptions and Supporting Brief is
denied. The reasons cited for the lateness do not rise to the level of excusable neglect
under extant Board law. See Elevator Constructors Local 2 (Unitec Elevator Services),
337 NRLB 426, 427 (2002). Consequently, we adopt pro forma the judge's
recommendation to sustain challenges to ballots cast by 6 maintenance mechanics.
Assuming arguendo that he were to reach the substance of the Employer's
exceptions, which he does not, Member Schaumber would agree with the judge on the
merits.
4 The judge was sifting as a hearing officer in this representation proceeding.
The Petitioner has excepted to some of the hearing officer's credibility findings. The
Board's established policy is not to overrule a hearing officer's credibility resolutions
unless the clear preponderance of all the relevant evidence convinces us that they are
incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have carefully examined
the record and find no basis for reversing the findings.
2