Sequoias Portola Valley

National Labor Relations Board - Board Decisions

Aug 31, 2009

354 N.L.R.B. 528 (N.L.R.B. 2009)

354 NLRB No. 74
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.
Sequoias Portola Valley and National Union of
Healthcare Workers, Petitioner, and Laborers
International Union, Local 270, Intervenor.
Case 20–RC–18240
August 31, 2009
DECISION ON REVIEW AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On April 1, 2009,1 the National Union of Healthcare
Workers (the Petitioner) filed a petition seeking to repre-
sent a unit of 75 healthcare employees employed by Se-
quoias Portola Valley (the Employer) in Portola Valley,
California. By letter dated April 6, the Regional Director
for Region 20 informed the Employer and the Petitioner
that he would hold the petition in abeyance pending the
outcome of an investigation of a charge filed on or about
March 5 by the Service Employees International Union
(SEIU) against Clinton Reilly Holdings (Clinton Reilly),
an unrelated employer. The charge alleges that Clinton
Reilly violated Section 8(a)(2) of the Act by unlawfully
dominating the Petitioner by making in-kind and finan-
cial contributions to the Petitioner through the Fund for
Union Democracy and Reform (FUDR). The Petitioner
requests review of the Regional Director’s decision to
hold the petition in abeyance.
Having carefully considered the matter, we grant re-
view, reverse the Regional Director, and reinstate the
petition.2
The sole issue raised in this proceeding is whether this
representation petition should be held in abeyance pend-
ing the investigation of an unfair labor practice charge
filed by a union other than the Petitioner against an em-
ployer other than the Employer here. This is a novel

1 All dates are in 2009, unless otherwise noted.
2 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 Kir-
sanow 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 Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir.
2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009)
(No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st
Cir. 2009), rehearing denied No. 08-1878 (May 20, 2009). But see
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469
(D.C. Cir. 2009), petitions for rehearing denied Nos. 08-1162, 08-1214
(July 1, 2009).
issue. After due consideration, including balancing the
Act’s interest in permitting employees to choose union
representation versus the gravity of the alleged unfair
labor practice charges, we find, as explained below, that
the petition should be processed. We further hold that if
the Petitioner is found, at a later date, not to be a labor
organization under the Act and it shall have been certi-
fied as the unit employees’ bargaining representative, the
Board shall take such action as required by the Act and
Board law, such as the revocation of the Petitioner’s cer-
tification.
The Board’s general policy is to “block,” or delay the
processing of a representation petition when there is a
pending unfair labor practice case. See, e.g., Bally’s At-
lantic City, 338 NLRB 443 (2002). “[T]he blocking
charge policy is premised solely on the Agency's inten-
tion to protect the free choice of employees in the elec-
tion process.” NLRB Casehandling Manual, Part Two,
Representation Proceedings, Sec. 11730. Holding a peti-
tion in abeyance rather than processing it in the face of
unresolved unfair labor practices preserves the laboratory
conditions that the Board requires for all elections and
insures that employees may vote in an atmosphere free of
unfair labor practices.3
Here, the Regional Director has blocked the represen-
tation petition filed by the Petitioner while he investi-
gates 8(a)(2) allegations that do not involve the current
employer. It appears that the Regional Director has done
so on the basis that if the relationship between the Peti-
tioner and Clinton Reilly is in violation of Section
8(a)(2), then he would find that any petition filed by the
Petitioner must be dismissed because that union can no
longer be certified to represent employees at any em-
ployer.
There is no specific guidance on this issue from either
prior Board decisions or the NLRB Casehandling Man-
ual. However, we are reluctant to see this novel theory
of law delay the processing of this petition for an indefi-
nite period of time. Allowing the unrelated employer-
domination charge to block the representation petition
here, before any such determination has been made with
respect to either the Petitioner or the current Employer,
delays, for an indeterminate, and possibly lengthy
amount of time, the employees’ opportunity to exercise
their Section 7 rights. Therefore, we find that, in these
circumstances, the better practice is to process the repre-
sentation petition and leave the determination of whether
a union is dominated, as alleged, to a later date when that
allegation and its impact, including whether the Peti-

3 For an in-depth discussion of the Board’s blocking charge policy,
see NLRB Casehandling Manual, Part Two, Representation Proceed-
ings, Sec. 11730.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
tioner is barred from representing any employees of any
employer, is fully litigated in the unfair labor practice
proceeding.
Our approach here is not unlike the one adopted by the
Board in Handy Andy, Inc., 228 NLRB 447 (1977).
There, the issue was whether a union’s alleged discrimi-
natory practices—as revealed by several court cases in
which contracts with other employers were found to be
unlawful because they perpetuated the effects of the em-
ployer’s past discrimination—should preclude the union
from being certified in a representation case. The Board
concluded that it should not. The Board considered, inter
alia, the nonadversary nature of representation proceed-
ings, the “paramount importance of avoidance of delay in
[such] . . . cases, [and] the procedural safeguards af-
forded in unfair labor practice proceedings which are not
available in representation cases. . . . ” Id. at 456. As a
result, it held that “the policies of the Act are better ef-
fectuated by considering allegations that a labor organi-
zation practices invidious discrimination in appropriate
unfair labor practice . . . proceedings.” Id. at 448.4
Similarly, here we find that the issue of domination of
the Petitioner by another employer is one that is better
considered in the unfair labor context. As stated above,

4 The Board pointed out that it would consider allegations of unlaw-
ful discrimination in representation cases “only when required to fulfill
our primary obligation of protecting employees from interference in
exercising their right to select a bargaining representative.” Id. at 454.
if, after the Sec. 8(a)(2) allegation has been litigated, and
the Petitioner is found not to be a labor organization, the
Board shall take such action as required by the Act and
Board law, such as the revocation of Petitioner’s certifi-
cation. To deny, however, the petitioned-for employees
their right to choose union representation prior to such a
determination is premature and does not best effectuate
the purposes and policies of the Act.
Accordingly, for the reasons stated above, we reverse
the Regional Director, reinstate the petition, and remand
this case to the Regional Director for further appropriate
action.
ORDER
IT IS ORDERED that the petition be reinstated, and that
this matter be remanded to the Regional Director for fur-
ther appropriate action.
Dated, Washington, D.C. August 31, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD