Mercy, Inc. d/b/a AMR Las Vegas

National Labor Relations Board - Unpublished Board Decisions

Dec 9, 2019

28-RC-239046 (N.L.R.B. Dec. 9, 2019)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
MERCY, INC. d/b/a AMR LAS VEGAS
Employer
and Case 28-RC-239046
AMERICAN FEDERATION OF STATE COUNTY
AND MUNICIPAL EMPLOYEES AFSCME
LOCAL 4041 (AFSCME LOCAL 4041, EMS
WORKERS UNITED-AFSCME)
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s determination to hold the
petition in abeyance is denied as it raises no substantial issues warranting review.1
JOHN F. RING, CHAIRMAN

1 In denying review, we note that the Board applies an “abuse of discretion” standard in
reviewing the decision of the Regional Director to hold the petition in abeyance. Mark Burnett
Productions, 349 NLRB 706, 707 (2007). The petition in this case was filed on April 4, 2019,
and an election was held on April 26 and 30. In May, the Petitioner filed objections to the
election and an unfair labor practice charge that paralleled the objections but did not
simultaneously request the petition be held in abeyance. On June 14, the Hearing Officer’s
Report sustained some of the objections and recommended a rerun election. The Petitioner then
filed the request to block this rerun election, and the petition has been held in abeyance since
July 18, pending the investigation and disposition of the unfair labor practice charge filed in
May. Although the unfair labor practice charge was filed in May, and the Hearing Officer has
issued a report sustaining some of the objections in June, the Regional Director has not made a
determination on the disposition of the unfair labor practice charge. We are troubled by the
processing of the petition and the associated delay. It is peculiar to block a rerun election based
on the conduct warranting a rerun election. It is also difficult to understand why there has been
no further action by the Regional Director on the unfair labor practice charge since the decision
to hold the petition in abeyance, notwithstanding the existence of the Hearing Officer’s Report,
which would typically provide a basis for making a merit determination. Nevertheless, the
circumstances before the Board fall short of establishing that the Regional Director abused his
discretion under current law.
The Board observes that it recently issued a Notice of Proposed Rulemaking that
addresses, among other things, possible changes to the Board’s blocking charge policy. See
Representation-Case Procedures: Elections Bars; Proof of Majority Support in Construction
Industry Collective-Bargaining Relationships, 84 Fed. Reg. 39930-01 (proposed Aug. 12, 2019).
For institutional reasons, the Board nevertheless applies extant law here in denying the
Employer’s Request for Review.
MARVIN E. KAPLAN, MEMBER
WILLIAM J. EMANUEL, MEMBER
Dated, Washington, D.C., December 9, 2019