Crown Nursing Home Associates, Inc.

512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Crown Nursing Home Associates, Inc. and United Industry Workers, Local 424, Petitioner Health Care Services Group, Inc. and 1115 Nursing Home and Hospital Employees Union, a Divi- sion of 1115 Joint Board, Petitioner. Cases 29- RC-7429 and 29-RC-7434 August 20, 1990 DECISION ON REVIEW AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On March 19, 1990, 1 the Regional Director for Region 29 issued an order sevenng case and ap- proving withdrawal of petition in Case 29-RC- 7429 The order found that the Intervenor's2 amendment of the petition to include the Employ- er's licensed practical nurses m a unit with the ongmally petitioned-for service and maintenance employees, particularly in view of the substantial change in the character of the petition, and the considerable increase in the size of the unit, ren- dered the Intervenor's showing of interest untime- ly, as it was supplemented by cards that postdated the execution of a collective-bargaining agreement between the Employer and the incumbent union, Local 144, Hotel, Hospital, Nursing Home and Allied Services Union, SEIU, AFL-CIO 3 Centen- nial Development Co, 218 NLRB 1284, 1285 (1985) Thereafter, Intervenor filed a timely request for review, and Local 144 filed an opposition to the Intervenor's request The Board, by a three-member panel, grants the Intervenor's request for review of the Regional Di- rector's order sevenng case and approving with- drawal of petition The Employer and Local 144 were parties to a collective-bargaining agreement that expired in 1984 After the expiration of that contract, Local 144 filed several unfair labor practice charges alleg- ing the Employer's refusal to bargain for a new contract On September 6, 1989, the Petitioner, Local 424, filed the instant petition which was blocked by the unfair labor practice charges On September 20, 1989, 1115 filed an mtervenor's showing of interest m this case, and filed a petition in Case 29-RC-7434, seeking to represent a unit of housekeeping and laundry employees at the Em- ployer's facility On January 12, the Employer and Local 144 exe- cuted a collective-bargaining agreement covenng ' All dates hereinafter are 1990 unless otherwise noted 2 1115 Nursing Home and Hospital Employees Union, a Division of 1115 Joint Board (1115), the Intervenor in Case 29-RC-7429, is the Peti- tioner in Case 29-RC-7434 3 Local 144 also Intervened in Case 29-RC-7429 the petitioned-for unit, effective January 1, 1990, through December 31, 1993 On January 22, the Petitioner made a wntten request to withdraw the instant petition Subsequently, the Intervenor sup- plemented its showing of interest to establish a pe- titioner's showing, with cards that postdated the execution of the contract The cases were consolidated and the heanng commenced on February 20, at which time the In- tervenor amended the petition in Case 29-RC-7429 to include the Employer's licensed practical nurses On March 19, the Regional Director severed the two cases,4 and granted the Petitioner's request to withdraw the petition in Case 29-RC-7429, finding the Intervenor's showing of interest untimely The Intervenor contends that it requested with- drawal of its amendment seeking to add the li- censed practical nurses, and that if such request had been granted, its showing of interest to support the petition that was filed on September 6, 1989, would have been timely, notwithstandmg the Janu- ary 12 execution of a collective-bargaining agree- ment between the Employer and Local 144, cover- ing the petitioned-for employees For the reasons set forth below, we find ment in the Intervenbr's contentions We have been administratively advised that the Intervenor, by letters of March 13 and 15, request- ed that it be allowed to withdraw its amendment Further, we have carefully examined the record and have found that the Regional Director did not rule on the Intervenor's request either before or in his order of March 19 Inasmuch as there are no rules prohibiting a party from withdrawing its own amendment to a petition, at least at any time pnor to the close of a hearing, the Board grants the In- tervenor's request to withdraw its amendment to add the licensed practical nurses to the originally petitioned-for unit Having granted the Intervenor's request, the Board relies on the Regional Director's administra- tive determination that the Intervenor had submit- ted a sufficient showing of interest to support the ongmally petitioned-for unit However, we reverse the Regional Director's determination that this sup- plemental showing of interest is untimely as it post- dates the collective-bargaining agreement entered into by the Employer and Local 144 Section 11114 1(b) of the NLRB's Casehandlmg Manual (Part Two, Representation Proceedmgs), provides that where a petitionmg union seeks to withdraw its petition after approval of an election 4 The hearing continued on Case 29-RC-7434 and, as of the date of this decision, the case is pending in the Regional Office awaiting the Re- gional Director's decision 299 NLRB No 70 CROWN NURSING HOME ASSOCIATES 513 agreement or close of hearing, and an intervening union desires the election be held, that intervening union may be given a reasonable period for procur- ing and submitting such interest The Casehandlmg Manual specifically provides that such showing need not antedate the approval of the agreement or the close of the hearing By the same token, we find that there is no requirement that such a show- ing must ,predate any collective-bargaining agree- ment executed between an employer and an incum- bent union subsequent to the timely filmg of a rep- resentation petition Such a requirement effectively would nullify a party's right to intervene in an election case with only an mtervenor's showing of interest, as it would, in effect, require an intervenor to have a petitioner's showing from the start An intervenor has no control over whether an employ- er and an incumbent umon execute an agreement, or whether the original petitioner subsequently withdraws its petition, thus, to require that the sup- plemented showing of interest predate the contract in this case would be unfair to an intervenor Moreover, to treat the collective-bargaining agree- ment between the Employer and Local 144 as a bar to the Intervenor's desire to become the peti- tioning union would be contrary to the principles set forth in RCA del Canbe, Inc , 262 NLRB 963 (1982), where the Board concluded that the execu- tion of a contract between an employer and an in- cumbent union not only is not a violation of Sec- tion 8(a)(2) of the Act, but also that such a con- tract would not bar a valid representation petition timely filed by an outside union As we fmd that the Intervenor submitted a timely showing of interest m Case 29-RC-7429, we conclude that the Regional Director erred in ap- provmg the Petitioner's withdrawal of the petition Accordingly, we reinstate the petition, declare that Local 1115 is to be considered a Cross-Petitioner in that case, and remand the case to the Regional Di- rector for further appropriate action ORDER The request of Intervenor 1115 Nursing Home and Hospital Employees Union, a Division of 1115 Joint Board to withdraw its amendment to the peti- tion in Case 29-RC-7429 is granted, the Regional Director's approval of the Petitioner's request to withdraw its petition is reversed, the petition is re- mstated, 1115 Nursing Home and Hospital Employ- ees Umon is declared to be a Cross-Petitioner, and the case is remanded to the Regional Director for further appropriate action