THE FINLEY HOSPITAL

National Labor Relations Board - Board Decisions

Oct 12, 2012

33-RD-000899 (N.L.R.B. Oct. 12, 2012)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
THE FINLEY HOSPITAL
Employer
and Case 33-RD-000899
PATRICIA LEHMKUHL
Petitioner
and
SEIU LOCAL 199
Union
ORDER
Petitioner and Employer’s Requests for Review of the Regional Director’s decision to
hold the petition in abeyance pending disposition of the outstanding unfair labor practice cases1
raise no substantial issues warranting reversal of the Regional Director’s determination.
Contrary to our dissenting colleague, we find that the Regional Director did not abuse his
discretion by holding the petition in abeyance. The Regional Director correctly applied the
Board’s blocking charge policy, which precludes holding an election in the face of unremedied
unfair labor practice allegations if the Regional Director, as here, determines that employees
would not be able to exercise their free choice if an election were held. The Regional Director
specifically and correctly rejected the Employer’s contention, now renewed by the dissent, that
collective-bargaining agreements negotiated between the parties since the filing of the charges
had actually satisfied any potential monetary remedy owed the employees from the Employer’s
alleged unlawful failure to provide wage increases following the expiration of a collective-
bargaining agreement. At that time, the Union specifically disputed the Employer’s contention.
Thus, when the Regional Director decided to hold the petition in abeyance, the issue of whether
the employees would be owed a monetary remedy was not, contrary to the dissent, substantially
resolved.
Although an election was held on August 29, 2007, 19 months before the present petition
was filed and while the unfair labor practice allegations were pending, the circumstances then
were very different. As the Regional Director observed, the administrative law judge had just
issued his decision and the Union sought to proceed to the 2007 election notwithstanding the
pending allegations. Although the Union won that election, the results were close.2 The Union

1 On September 28, 2012, the Board issued a Decision and Order in the related case of The Finley Hospital, 359
NLRB No. 9 (2012).
2 The tally indicated that 144 ballots were cast for and 137 against the Union.
2
did not request to proceed to an election pursuant to this petition, and a substantial additional
period of time had elapsed between the unfair practice allegations and the filing of this petition.
The dissent contends that the lapse of time between the Union’s filing of the charges in
the unfair labor practice case and the petition in this case lessened the likelihood of any adverse
effects on employee free choice. We disagree. The Employer’s continuing failure to pay
contractual wage increases was broad and serious. It adversely affected the entire unit, and
continued to do so at the time the Regional Director decided to hold the petition in abeyance.3 In
those circumstances, we cannot say that the Regional Director abused his discretion in
concluding that the delay in remedying the Employer’s conduct, which the judge had found
unlawful, reasonably could have created an impression among unit employees that the Union
was ineffectual or incapable of protecting their rights. Nor did the Regional Director abuse his
discretion in concluding that the Employer’s unremedied violations would have interfered with
the holding of a free and fair election under the appropriate laboratory conditions.
Finally, we emphasize that the sole decision we affirm today is the Regional Director’s
decision to hold the petition in abeyance. Under the Casehandling Manual, the Regional
Director has discretion to reassess the holding of the petition in abeyance throughout all steps of
the processing of the charge and the petition. Casehandling Manual, Part Two, Representation
Proceedings, Sec. 11730.4.
Accordingly, the Regional Director’s decision is affirmed.4
MARK GASTON PEARCE, CHAIRMAN
SHARON BLOCK, MEMBER
Member Hayes, dissenting:
Employee free choice would have been best served if the petition had been processed
three and a half years ago when it was filed. Without passing on the efficacy of the Board’s
current blocking charge policy in general, I find the Regional Director abused his discretion
under that policy by holding this petition in abeyance awaiting resolution of unfair labor practice
charges pending before the Board. The charges relied upon to block the petition were
significantly remote in time from the filing of the petition, lessening the likelihood of their
affecting employee choice.1 The most significant unresolved allegation – that the Employer
unlawfully failed to provide wage increases following the expiration of a collective bargaining
agreement2 -- had been substantially remedied in the meantime by productive negotiations
between the parties. Those negotiations resulted in two successor collective bargaining
agreements and a series of subsequent wage increases, one of which the parties agreed would be

3 The Board’s decision in The Finley Hospital affirmatively orders the Employer to resume giving unit employees
annual contractual pay raises and to the make employees whole for any losses sustained. Id. slip op. at 10.
4 We find the Employer’s Motion to Recuse former Member Becker is moot.
1 The petition was filed 2 years after the judge’s decision issued finding the charge allegations had merit, and 3 to 4
years after the alleged unlawful conduct occurred.
2 In contrast to my colleagues in the majority, I would have dismissed this allegation on the merits.
3
used to partially offset any monetary award that might result from the unfair labor practice
litigation. Moreover, a year and a half before this petition was filed the Regional Director
permitted a decertification election to proceed in the same unit while the same charges were
pending before the Board. The Union won that election. Under these circumstances, I find it
was unreasonable to conclude that the delay in the Board’s final resolution of the unfair labor
practice case would cause employees to believe the Union’s representation of employees was
ineffectual or would otherwise interfere with employee free choice had an election been held at
the time the petition was filed.
BRIAN E. HAYES, MEMBER
Washington, D.C., October 12, 2012.