Mountain View Health Care and Rehabilitation Center, LLC

National Labor Relations Board - Unpublished Board Decisions

Dec 11, 2019

04-RC-242288 (N.L.R.B. Dec. 11, 2019)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
MOUNTAIN VIEW HEALTH CARE AND
REHABILITATION CENTER, LLC
Employer
and Case 04-RC-242288
RETAIL WHOLESALE AND DEPARTMENT
STORE UNION (RWDSU)
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s Decision and Direction of
Election is denied as it raises no substantial issues warranting review.1
JOHN F. RING, CHAIRMAN
MARVIN E. KAPLAN, MEMBER
WILLIAM J. EMANUEL, MEMBER
Dated, Washington, D.C., December 11, 2019.

1 In denying review, we do not rely on the Regional Director’s citations to Regal Health &
Rehab Ctr., Inc., 354 NLRB 466 (2009), PPG Aerospace Industries, Inc., 353 NLRB 223
(2008), and Family Healthcare, Inc., 354 NLRB 254 (2009), as they are two-member Board
decisions. See New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010).
We agree, for the reasons stated by the Regional Director, that the Employer’s LPNs are
not supervisors even under the standards employed by the United States Court of Appeals for the
Third Circuit. See NLRB v. New Vista Nursing & Rehabilitation, 870 F.3d 113, 130-136 (3d Cir.
2017); see also NLRB v. Attleboro Associates, 176 F.3d 154, 164-166 (3d Cir. 1999). The
Employer has failed to establish, among other things, that the two disciplinary actions that its
LPNs can take—engaging in verbal counseling and filling out “write-up” forms—consistently
result in any particular discipline under the Employer’s progressive discipline policy; nor has the
Employer provided any evidence of such actions increasing the severity of future discipline. We
note, however, that the concerns articulated by the Third Circuit regarding the Board’s test for
whether putative supervisors may effectively recommend discipline warrant careful
consideration, and we would be open to reconsidering extant Board law on this topic in a future
appropriate case.