St. Catherine Healthcare and Rehabilitation Center, LLC

National Labor Relations Board - Unpublished Board Decisions

Feb 1, 2010

28-RC-006661 (N.L.R.B. Feb. 1, 2010)

NOTINCLUDED LS
IN BOUND VOLUMES Albuquerque, NM
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ST. CATHERINE HEALTHCARE AND
REHABILITATION CENTER, LLC
Employer
and Case 28-RC-6661
DISTRICT 11 99NM NATIONAL UNION OF
HOSPITAL AND HEALTHCARE EMPLOYEES,
AFSCME, AFL-CIO
Petitioner
DECISION AND ORDER REMANDING
The National Labor Relations Board' has considered objections and a
determinative challenge to an election held June 19, 2009, and the administrative law
judge's decision recommending disposition of them. The election was conducted pursuant
to a Stipulated Election Agreement. The tally of ballots shows 29 for and 29 against the
Petitioner, with one challenged ballot.
' 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 Teamsters
Local 523 v. NLRB, _F.3d_, 2009 WL 4912300 (10th Cir. Dec. 22, 2009); Narricot
Industries, L.P. v. NLRB, 587 F.3d 654 (4th Cir. 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 130 S.Ct. 488 (2009); Northeastern Land Services v. NLRB, 560 F.3d 36 (1 st Cir.
2009), petition for cert. filed 78 U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213). But
see Laurel Baye Healthcare ofLake 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).
The Board has reviewed the record in light of the exceptions and brief, and has
adopted the judge's findings 2 and recommendations except as noted below.
For the reasons stated by the judge, we affirm his conclusion that the challenged
ballot should be counted as a vote for the Petitioner and we adopt his recommendation that
the Employer's objections 7 and 10, alleging misconduct by the Regional Director, be
3overruled.
The judge also recommended overruling the Employer's objections 5 and 9, which
allege that the Board agent who conducted the election engaged in misconduct, including
the solicitation of the Petitioner's challenge to the agent's decision to void a determinative
ballot. With respect to this incident, the judge briefly described two versions of what the
Board agent said to the parties' representatives at the ballot count after he voided the ballot
and they shook hands with one another. According to the Board agent, he stated that any
party has the right to challenge his interpretation of the ballot. Then he looked at Henry
Santana, the primary Union representative, and asked him, "Are you challenging my
interpretation of this ballot, that the ballot is void?"
Employer witnesses Jaime Andujo and Carol Dionne Motal did not testify that the
Board agent said anything to the entire group regarding the rights of the parties to
2 The judge was sitting as a hearing officer in this representation proceeding. The Union
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.
3 In the absence of exceptions, we adopt pro forma the judge's recommendations that the
Petitioner's objections 1, 3, and 4; the Employer's objections 2, 3, 4, and 8; and the
Employer's additional objection to the Regional Director's failure to issue an Order
removing the case to the Board's Division of Judges, be overruled. The Petitioner's
objection 2 and the Employer's objections I and 6 were withdrawn.
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challenge. According to Andujo, the Board agent looked at Santana and said, "I'm
assuming that you are going to challenge." Motal testified that the Board agent told
Santana, "I'm sure that you are going to want to challenge this."
The judge did not expressly credit any testimonial version of events. Under the
circumstances, we find it preferable to remand this case to him to make this credibility
finding before addressing the merits of the Employer's exceptions to the overruling of
objections 5 and 9. Accordingly,
ORDER
IT IS ORDERED that this proceeding is remanded to the judge for reconsideration
of the disputed evidence and the issuance of a supplemental report including credibility
determinations, findings of fact, and recommendations. Following the issuance of the
judge's supplemental report, the provisions of Section 102.69(i)(2) of the Board's Rules
and Regulations shall apply.
Dated, Washington, D.C. , February 1, 2010.
Wilma B. Liebman, Chairman
Peter C. Schatimber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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