800 RIVER ROAD OPERATING COMPANY, LLC D/B/A WOODCREST HEALTH CARE CENTER

1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800 River Road Operating Company LLC, d/b/a Woodcrest Health Care Center and 1199 SEIU, United Healthcare Workers East. Cases 22–CA– 097938 and 22–RC–073078 November 26, 2014 DECISION, CERTIFICATION OF REPRESENTATIVE, AND NOTICE TO SHOW CAUSE BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND SCHIFFER On July 10, 2013, the National Labor Relations Board issued a Decision and Order in this proceeding, which is reported at 359 NLRB No. 129 (not reported in Board volumes). Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the Dis- trict of Columbia 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, on June 27, 2014, the Board issued an order setting aside the De- cision and Order, and retained this case on its docket for further action as appropriate. 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 certification of 1199 SEIU, United Healthcare Workers East (the Union) as bargain- ing representative in the underlying representation pro- ceeding. The Board’s July 10, 2013 decision states that the Respondent is precluded from litigating any represen- tation issues because, in relevant part, they were or could have been litigated in the prior representation proceed- ings. The prior proceedings, 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 them 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 issued on March 13, 2013, the Respondent argued that the Board wrongly certified the Union “for the reasons set forth in [its] Exceptions to the June 18, 2012 Report of the Hear- ing Officer that the Board adopted in its September 13, 2012 Decision and Direction of Election,” and further argued that the Board must reopen the record and vacate the Decision for the reasons set forth in its March 2, 2013 Motion to Reopen the Record. As to the Respondent’s first argument, it appears that the Respondent has confused this case with some other matter. The election in this case was conducted on March 9, 2012, pursuant to a Stipulated Election Agree- ment. Thus, there were no “Exceptions to the June 18, 2012 Report of the Hearing Officer” and there was no “September 13, 2012 Decision and Direction of Elec- tion.” Nevertheless, based on the Respondent’s reference to a hearing officer’s report, we presume that the Re- spondent is attempting, albeit inartfully, to assert its ob- jections to the election that were the subject of the hear- ing officer’s Report on Objections that issued on June 4, 2012, and about which the Respondent filed exceptions on June 26, 2012. In view of the decision of the Supreme Court in NLRB v. Noel Canning, supra, we have considered de novo the record in light of the Respondent’s objections to the elec- tion held March 9, 2012, and the hearing officer’s report recommending disposition of them, as well as the Re- spondent’s exceptions to the hearing officer’s report. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 122 for and 81 against the Union, with 2 challenged ballots, an insufficient number to affect the results. We have also considered the January 9, 2013 Decision and Certifica- tion of Representative, and we agree with the rationale set forth therein. Accordingly, we adopt the hearing of- ficer’s findings and recommendations, and find no merit to the Respondent’s exceptions, to the extent and for the reasons stated in the January 9, 2013 Decision and Certi- fication of Representative, reported at 359 NLRB 522, which is incorporated herein by reference. Next, the Respondent argues that the Board must reo- pen the record and vacate the Decision for the reasons set forth in its March 2, 2013 Motion to Reopen the Record, which the Respondent filed pursuant to Section 102.65(e) of the Board’s Rules and Regulations. In this motion, the Respondent argued that it had newly discovered evidence in support of its objections to the election and its excep- tions to the hearing officer’s report. Thereafter, the Un- ion filed an opposition to the Respondent’s motion. On May 31, 2013, the Board issued an order denying the Respondent’s motion. In view of the decision of the Supreme Court in NLRB v. Noel Canning, supra, we have also considered de novo the Respondent’s Motion to Reopen the Record, and the Petitioner’s opposition thereto. We have also considered the Board’s May 31, 2013 Order Denying Motion, and we agree with the rationale set forth therein. According- 361 NLRB No. 117 WOODCREST HEALTHCARE CENTER 1015 ly, we find that the Respondent’s motion fails to present “extraordinary circumstances” warranting reopening the record under Section 102.65(e)(1) of the Board’s Rules and Regulations, and we deny Respondent’s Motion to Reopen the Record for the reasons stated in the May 31, 2013 Order Denying Motion, which is incorporated here- in by reference. Having resolved the representation issues raised by the Respondent in this proceeding, we find that the election was properly held and the tally of ballots is a reliable expression of the employee’s free choice. Accordingly, we will issue an appropriate certification.1 CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for 1199 SEIU, United Healthcare Workers East, and that it is the exclusive collective-bargaining representative of the employees in the following appro- priate unit: All full time and regular part time non-professional employees including licensed practical nurses, certified nursing aides, dietary aides, housekeepers, laundry aides, porters, recreation aides, restorative aides, reha- bilitation techs, central supply clerks, unit secretaries, receptionists and building maintenance workers em- ployed by the Employer at its New Milford, New Jer- sey facility, but excluding all office clerical employees, cooks, registered nurses, dietitians, physical therapists, physical therapy assistants, occupational therapists, oc- cupational therapy assistants, speech therapists, social workers, staffing coordinators/schedulers, pay- roll/benefits coordinators, MDS specialists, MDS data 1 In view of our decision to issue a new Certification of Representa- tive based upon the arguments raised in this proceeding, we deny as moot the Respondent’s motion to vacate the Board’s January 9, 2013 Decision and Certification of Representative. clerks, account payable clerks, account receivable clerks, all other professional employees, guards and su- pervisors as defined in the Act. NOTICE TO SHOW CAUSE The complaint alleges that the Respondent has refused to recognize and bargain with the Union and has refused to provide the Union with information necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit employees. 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 Ap- peals.2 Although Respondent’s legal position may re- main unchanged, it is possible that the Respondent has or intends to commence bargaining or to provide infor- mation 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 8, 2014, to conform with the current state of the evidence. 2. The Respondent’s answer to the amended com- plaint is due on or before December 22, 2014. 3. NOTICE IS HEREBY GIVEN that cause be shown, in writing, on or before January 12, 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. 2 In its answer to the complaint, the Respondent asserts without fur- ther elaboration that the Regional Director and Acting General Counsel were and are without authority to issue and prosecute the instant com- plaint. We reject this argument for the reasons stated in Pallet Compa- nies, Inc., 361 NLRB 339, 339 (2014).