SUB-ACUTE REHABILITATION CENTER AT KEARNY, LLC d/b/a BELGROVE POST ACUTE CARE CENTER

964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sub-Acute Rehabilitation Center at Kearny, LLC d/b/a Belgrove Post Acute Care Center and Dis- trict 1199J NUHHCE, AFSCME, AFL–CIO. Cases 22–CA–093626 and 22–RC–080916 November 25, 2014 DECISION, CERTIFICATION OF REPRESENTATIVE, AND NOTICE TO SHOW CAUSE BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND SCHIFFER On March 13, 2013, the National Labor Relations Board issued a Decision and Order in this proceeding, which is reported at 359 NLRB 683. Thereafter, the General Counsel filed an application for enforcement in the United States Court of Appeals for the Third Circuit. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally in- firm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appoint- ments to the Board were not valid. Thereafter, the court of appeals remanded this case for further proceedings consistent with the Supreme Court’s decision. The National Labor Relations Board has consolidated the underlying representation proceeding with this unfair labor practice proceeding and delegated its authority in both proceedings to a three-member panel. This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. The Board’s March 13, 2013 decision states that the Respondent is precluded from litigating any rep- resentation issues because, in relevant part, they were or could have been litigated in the prior representation pro- ceeding. The prior proceeding, however, also occurred at a time when the composition of the Board included two persons whose appointments to the Board had been chal- lenged as constitutionally infirm, and we do not give it preclusive effect. Accordingly, we consider below the representation issues that the Respondent has raised in this proceeding. In its response to the Notice to Show Cause, the Re- spondent reiterates its preelection argument that the Re- gional Director erred in finding that its licensed practical nurses are not supervisors.1 1 The Respondent also contends that the complaint should be dis- missed or a hearing held because the initial charge was not properly served upon the Respondent. We find no merit to this contention. First, it is uncontested that the Region served the charge on the Re- spondent’s attorney of record in the underlying representation proceed- In view of the decision of the Supreme Court in NLRB v. Noel Canning, supra, we have considered de novo the Respondent’s request for review of the Regional Direc- tor’s Decision and Direction of Election, and we find the Respondent’s arguments to be without merit. According- ly, we affirm the decision to deny the Request for Re- view in the prior proceeding.2 We next consider the question whether the Board can rely on the results of the election. For the reasons stated below, we find that the election was properly held and the tally of ballots is a reliable expression of the employ- ee’s free choice. As an initial matter, had the Board decided not to issue decisions during the time that the composition of the Board included two persons whose appointments to the ing. This same attorney entered a notice of appearance on behalf of the Respondent 4 days after being served with the charge, and filed a time- ly answer to the complaint and a response to the Notice to Show Cause. The affidavit of service of the charge is included in the documents supporting the Acting General Counsel’s motion for summary judg- ment, showing the date as alleged, and the Respondent has not chal- lenged the authenticity of these documents. Accordingly, we find that the Respondent had notice of the filing of the charge. See Pasco Pack- ing Co., 115 NLRB 437, 438 (1956) (adequate notice given to respond- ent by service of documents on attorney of record in representation proceeding, from which the unfair labor practice proceeding emanated). Second, it is also uncontested that the Region served the charge on the Respondent by facsimile. The Board has held that technical defects in the form of service will not necessarily invalidate the service. See Control Services, 303 NLRB 481, 481 (1991) (“when charges have in fact been received, technical defects in the form of service do not affect the validity of the service”), enfd. mem. 961 F.2d 1568 (3d Cir. 1992). Third, the complaint was properly served on the Respondent (and its attorney of record) within the 10(b) period. Thus, even assuming the charge was not properly served on the Respondent in a timely manner, such a failure “will be cured by timely service within the 10(b) period of a complaint on the respondent, absent a showing that the respondent is prejudiced by [the] circumstances.” Buckeye Plastic Molding, 299 NLRB 1053, 1053 (1990). Here, there has been no assertion, much less a showing, of prejudice to the Respondent in this proceeding. The Respondent’s final argument is that the complaint should be dismissed because the Acting General Counsel could not properly be appointed under the Federal Vacancies Reform Act and therefore lacked authority to issue the complaint in this case. For the reasons stated in Benjamin H. Realty Corp., 361 NLRB 918, 918 (2014), we reject this argument. 2 In denying review of the Regional Director’s finding that the Em- ployer has failed to establish that the LPNs are statutory supervisors based on their authority to assign employees, we find, as did the Re- gional Director, that, even assuming that LPNs have the authority to assign CNAs, the Employer has failed to show that LPNs exercise independent judgment in making such assignments. In finding that the Employer failed to establish that the LPNs have the authority to adjust grievances, the Regional Director pointed to the minor character of the grievances resolved by the LPNs, some of which involved patient complaints. We find it unnecessary to characterize the grievances or to address whether the resolution of patient complaints is relevant to the grievance adjustment indicia of Sec. 2(11) authority because the evidence fails to show that LPNs use independent judgment in resolving them. 361 NLRB No. 118 BELGROVE POST ACUTE CARE CENTER 965 Board had been challenged as constitutionally infirm, the Regional Director would have conducted the election as scheduled and counted the ballots. In this regard, Sec- tion 102.67(b) of the Board’s Rules and Regulations states: The Regional Director shall schedule and conduct any election directed by the [Regional Director’s] decision notwithstanding that a request for review has been filed with or granted by the Board. The filing of such a re- quest shall not, unless otherwise ordered by the Board, operate as a stay of the election or any other action tak- en or directed by the Regional Director: Provided, however, That if a pending request for review has not been ruled upon or has been granted[,] ballots whose validity might be affected by the final Board decision shall be segregated in an appropriate manner, and all ballots shall be impounded and remain unopened pend- ing such decision. (Emphasis in original). See also Casehandling Manual, Part 2, Representation Proceedings, Sections 11274, 11302.1(a) (same). How- ever, this vote and impound process does not apply when the Board lacks a quorum. In this regard, Section 102.182 of the Board’s Rules and Regulations states: Representation cases should be processed to certifica- tion.—During any period when the Board lacks a quor- um, the second proviso of § 102.67(b) regarding the au- tomatic impounding of ballots shall be suspended. To the extent practicable, all representation cases should continue to be processed and the appropriate certifica- tion should be issued by the Regional Director notwith- standing the pendency of a request for review, subject to revision or revocation by the Board pursuant to a re- quest for review filed in accordance with this subpart. Thus, it is clear that the decision of the Board to con- tinue to issue decisions did not affect the outcome of the election. With or without a decision on the original Re- quest for Review, the election would have been conduct- ed as scheduled. This result is required by Section 102.67(b) of the Board’s Rules, and, under Noel Can- ning, the sitting Board Members did not have the authori- ty to issue an order directing otherwise. Thus, the timing of the election was not affected by the issuance of a deci- sion on the Request for Review, and we find that the de- cision of the Regional Director to open and count the ballots was appropriate and in accordance with Section 102.182. In any event, the actions of the Regional Direc- tor did not affect the tally of ballots. Accordingly, we will rely on the results of the election and issue an ap- propriate certification. See also Champlin Shores Assist- ed Living, 361 NLRB 901, 901–902 (2014). CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for District 1199J, National Union of Hospital and Health Care Employees, AFSCME, AFL–CIO, and that it is the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: All full-time, regular part-time, and per-diem Licensed Practical Nurses employed by the Employer at its Kearny, New Jersey facility, excluding all other em- ployees, guards and supervisors as defined by the Act. NOTICE TO SHOW CAUSE As noted above, the Respondent has refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals. Alt- hough the Respondent’s legal position may remain un- changed, it is possible that the Respondent has or intends to commence bargaining at this time. It is also possible that other events may have occurred during the pendency of this litigation that the parties may wish to bring to our attention. Having duly considered the matter, 1. The General Counsel is granted leave to amend the complaint on or before December 5, 2014, to conform with the current state of the evidence. 2. The Respondent’s answer to the amended complaint is due on or before December 19, 2014. 3. NOTICE IS HEREBY GIVEN that cause be shown, in writing, on or before January 9, 2015 (with affidavit of service on the parties to this proceeding), as to why the Board should not grant the General Counsel’s motion for summary judgment. Any briefs or statements in support of the motion shall be filed by the same date.