Manor at St. Luke Village Facility Operations LLC d/b/a The Manor at St. Luke Village and the Pavili

National Labor Relations Board - Unpublished Board Decisions

Jan 22, 2015

04-CA-114317 (N.L.R.B. Jan. 22, 2015)

361 NLRB No. 99
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Manor at St. Luke Village Facility Operations, LLC
d/b/a The Manor at St. Luke Village and The
Pavilion at St. Luke Village Facility Operations,
LLC d/b/a The Pavilion at St. Luke Village and
American Federation of State, County and Mu-
nicipal Employees, District Council 87, AFL–
CIO. Cases 04–CA–114317 and 04–RC–101711
December 16, 2014
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
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. Pursuant to a charge filed on September 27,
2013, by American Federation of State, County and Mu-
nicipal Employees, District Council 87, AFL–CIO (the
Union), the General Counsel issued the complaint on
October 28, 2013, alleging that Manor at St. Luke Vil-
lage Facility Operations, LLC d/b/a The Manor at St.
Luke Village and The Pavilion at St. Luke Village Facili-
ty Operations, LLC d/b/a The Pavilion at St. Luke Vil-
lage (the Respondent) has violated Section 8(a)(5) and
(1) of the Act by failing and refusing the Union’s request
to bargain following the Union’s certification in Case
04–RC–101711. The Respondent filed an answer admit-
ting in part and denying in part the allegations in the
complaint, and asserting affirmative defenses.
On November 19, 2013, the General Counsel filed a
Motion for Summary Judgment and a memorandum in
support. On November 22, 2013, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be grant-
ed. On December 5, 2013, the Respondent filed a letter
in response to the Notice to Show Cause and an amended
answer to the complaint. On the same date, the Union
filed a brief in support of the General Counsel’s Motion
for Summary Judgment.
The National Labor Relations Board has consolidated
these proceedings and delegated its authority in this pro-
ceeding to a three-member panel.
With regard to the motion for summary judgment, the
Respondent admits its refusal to bargain but contests the
validity of the certification on the basis of its contention
in the underlying representation proceeding that the bar-
gaining unit is inappropriate. The Respondent also reit-
erates its claim in the underlying representation proceed-
ing that all of the Regional Director’s and the Board’s
actions in Case 04–RC–101711 were ultra vires and not
valid because at all times during the processing of Case
04–RC–101711 the Board lacked a quorum under NLRB
v. Noel Canning, 705 F.3d 490 (D.C. Cir. 2013), af-
firmed in relevant part 134 S.Ct. 2550 (2014), and NLRB
v. New Vista Nursing & Rehabilitation, 719 F.3d 203 (3d
Cir. 2013).1
In a typical unfair labor practice proceeding, a re-
spondent is precluded from raising representation issues
that were or could have been litigated in the prior repre-
sentation proceeding. However, at the time of the
Board’s June 13, 2013 Order denying the Employer’s
request for review of the Regional Director’s Decision
and Direction of Election in Case 04–RC–101711, the
composition of the Board included two persons whose
appointments to the Board had been challenged as consti-
tutionally infirm. On June 26, 2014, the United States
Supreme Court issued its decision in NLRB v. Noel Can-
ning, supra, holding that the challenged appointments to
the Board were not valid. Under these circumstances, we
will not give preclusive effect to the Board’s prior denial
of the Respondent’s request for review, and we will con-
sider anew the Respondent’s arguments raised in the rep-
resentation proceeding.
As an initial matter, the Respondent argues that the
Regional Director for Region 4 was appointed to his po-
sition at a time when the Board lacked a quorum under
Noel Canning and, therefore, the Regional Director was
acting pursuant to an invalid appointment. We reject this
argument for the reasons stated in Pallet Cos., Inc., 361
NLRB No. 33 (2014).
The Respondent further argues that the Board’s gen-
eral delegation of authority to Regional Directors to pro-
cess representation cases is not valid at a time when the
Board lacks a quorum. We reject this argument as well.

1 The Respondent also argues that the allegations of the complaint
are barred by Sec. 10(b) of the Act. However, the Respondent has not
presented any factual or legal basis in support of this defense, and its
amended answer admits that the charge was filed on September 27,
2013, and that it has not responded to the Union’s letter of June 25,
2013, in which the Union requested bargaining. We therefore find that
the Respondent’s 10(b) defense is without merit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The Board’s delegation of its decisional authority in rep-
resentation cases to Regional Directors dates back to
1961 and has never been withdrawn. See 26 Fed.Reg.
3889 (1961). Consistent with the 1961 Delegation and
the Board’s Rules and Regulations, NLRB Regional Di-
rectors remain vested with the authority to conduct elec-
tions and certify their results, regardless of the Board’s
composition at any given moment. Specifically, Section
102.178 provides that “during any period when the
Board lacks a quorum normal Agency operations should
continue to the greatest extent permitted by law,” and
Section 102.182 specifies that representation cases
should be processed to certification “[t]o the extent prac-
ticable.” See also Durham School Services, LP, 361
NLRB No. 66, slip op. at 1 (2014).
With regard to the merits of the representation pro-
ceeding, the Union filed a petition to represent a unit of
licensed practical nurses (LPNs) at the Respondent’s two
skilled nursing homes in Hazleton, Pennsylvania. The
Respondent claimed that the petition should be dismissed
because the LPNs are supervisors within the meaning of
Section 2(11) of the Act, and because the management
data set (MDS) nurse-LPNs do not share a sufficient
community of interest with the other LPNs to be includ-
ed in the same unit with them. Following a hearing in
which the parties were given the opportunity to present
evidence and arguments in support of their respective
positions, the Regional Director issued a Decision and
Direction of Election on May 16, 2013, concluding that
the MDS nurse-LPNs were appropriately included in the
unit and that the Respondent had not carried its burden to
show that the LPNs were supervisors. Thereafter, the
Respondent filed a Request for Review arguing that the
Regional Director clearly erred in concluding that the
LPNs are not statutory supervisors and that the MDS
nurse-LPNs share a community of interest with the other
LPNs sufficient to be included in the same bargaining
unit.2 We deny the Respondent’s request for review as it
raises no substantial issues warranting review.
The election was held on June 13, 2013. The tally of
ballots showed that of approximately 43 eligible voters,
26 cast ballots for the Union and 12 cast ballots against
the Union, with no challenged ballots. No objections
were filed by any party. On June 24, 2013, the Acting
Regional Director issued the Certification of Representa-
tive, certifying the Union.

2 Relevant to the alleged supervisory status of the LPNs, the Re-
spondent argues in its request for review that the Regional Director
erroneously denied its special appeal from the hearing officer’s ruling
quashing a subpoena the Respondent served on the Union.
Although the Respondent disputes the appropriateness
of the bargaining unit, it does not dispute that the tally of
ballot accurately represents the wishes of the employees
participating in the election. There is no question that a
majority of valid ballots was cast for the Union, and we
see no legitimate reason why we should not rely on the
results of that election. Although there is also no ques-
tion that the Certification of Representative issued by the
Acting Regional Director is substantively correct, in an
abundance of caution and in an effort to avoid additional
litigation that would only serve to further delay this mat-
ter, we will issue a new Certification of Representative.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for American Federation of State, County and
Municipal Employees, District Council 87, AFL–CIO,
and that it is the exclusive collective-bargaining repre-
sentative of the employees in the following appropriate
unit:
All full-time and regular part-time LPNs, including
pool LPNs (who work an average of four or more
hours per week) and MDS Nurse-LPNs, employed by
the Respondent at its 1711 East Broad Street and 1000
Stacie Drive, Hazleton, PA facilities, excluding all
Registered Nurses, Certified Nursing Assistants, restor-
ative aides, activity aides, beauticians, maintenance
employees, clerical employees, confidential employees,
guards, and supervisors as defined in the Act.
NOTICE TO SHOW CAUSE
The Respondent stated in its response to the Notice to
Show Cause that it has refused to bargain for the purpose
of testing the validity of the certification of representa-
tive in the U.S. Courts of Appeals. Although the Re-
spondent’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 atten-
tion.3

3 We recognize that in its response to the Notice to Show Cause, the
Respondent agreed that summary judgment was appropriate. It did so,
however, because it wanted to present its jurisdictional and substantive
arguments directly to a United States court of appeals. In view of the
fact that a properly constituted panel of the Board has addressed the
Respondent’s jurisdictional arguments, and has considered anew the
substantive arguments presented in the underlying representation pro-
ceeding, it is possible that this matter could be resolved without further
litigation.
MANOR AT ST. LUKE VILLAGE 3
Having duly considered the matter,
1. The General Counsel is granted leave to amend the
complaint on or before February 2, 1015, to conform
with the current state of the evidence.
2. The Respondent’s answer to the amended com-
plaint is due on or before February 17, 2015.
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before March 10, 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.
Dated, Washington, D.C., December 16, 2014.
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Nancy Schiffer, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD