HMH Residential Care, Inc., d/b/a Meridian Nursing and Rehabilitation at Shrewsbury

National Labor Relations Board - Unpublished Board Decisions

Apr 6, 2020

22-RD-243803 (N.L.R.B. Apr. 6, 2020)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
HMH RESIDENTIAL CARE, INC., D/B/A
MERIDIAN NURSING AND
REHABILITATION AT SHREWSBURY
Employer
and Case 22-RD-243803
LOUNDY SAINT LOUIS
Petitioner
and
1199 SEIU UNITED HEALTHCARE
WORKERS EAST
Union
DECISION ON REVIEW AND ORDER
The Employer’s and Petitioner’s requests for review of the Regional Director’s
administrative dismissal of the decertification petition are granted as they raise substantial issues
warranting review.1 On review, we find that the Regional Director erred by dismissing the
instant petition based on his conclusion that the Petitioner had not submitted a sufficient, original
showing of interest.
1 Chairman Ring, who is recused, is a member of the panel but did not participate in this decision
on the merits.
In New Process Steel v. NLRB, 130 S.Ct 2635 (2010), the Supreme Court left undisturbed
the Board’s practice of deciding cases with a two-member quorum when one of the panel
members has recused himself. Under the Court’s reading of the National Labor Relations Act,
“the group quorum provisions [of Section 3(b)] still operates to allow any panel to issue a
decision by only two members if one member is disqualified.” New Process Steel, 130 S.Ct at
2644. See also, e.g., D.R. Horton, 357 NLRB 2277, 2277 fn. 1 (2012), enfd. in relevant part, 737
F.3d 344, 353 (5th Cir. 2013); NLRB v. New Vista Nursing and Rehabilitation, 870 F.3d 113,
127-128 (3d Cir 2017); 1621 Route 22 West Operating Company, 357 NLRB 1866, 1866 fn. 1
(2011), enfd. 725 Fed.Appx. 129, 136 fn. 7 (3d Cir. 2018).
2
The Union, 1199 SEIU United Healthcare Workers East, is the recognized representative
of a unit of all full-time, regular part-time and per diem certified nursing aides, environmental
service aides, laundry employees, cooks and dietary aides employed by the Employer, HMH
Residential Care, at its facility in Shrewsbury, New Jersey. On June 11, 2019,2 an employee
filed a decertification petition and an original showing of interest in Case 22-RD-243025 seeking
to decertify the Union. On June 18, the Region approved her request to withdraw the petition.
On June 25, the Petitioner, a different employee, filed the instant decertification petition
and a showing of interest via facsimile. When advised of her obligation to provide an original
showing of interest within 2 business days, the Petitioner responded that she did not have the
original showing of interest, but that the Region should use the earlier showing of interest from
Case 22-RD-243025, which she understood was still in the Region’s possession. On July 3, the
Petitioner submitted several original, dated signatures which were insufficient, by themselves, to
meet the 30% requirement to support the decertification petition.3
On July 12, the Regional Director dismissed the petition, finding that the original
signatures the Petitioner had submitted were an insufficient showing of interest. With respect to
the Petitioner’s request to use the showing of interest submitted in Case 22-RD-243025, the
Regional Director stated that the petitioner in that case had not instructed or requested the
Region to transfer the showing of interest to the Petitioner. Thereafter, in accordance with
Section 102.71 of the National Labor Relations Board’s Rules and Regulations,4 the Employer
and the Petitioner filed requests for review. The Union filed an opposition.
2 All dates are in 2019 unless otherwise indicated.
3 See NLRB Casehandling Manual (Part Two) Representation Proceedings Sec. 11023.1.
4 The Regional Director’s dismissal letter inadvertently stated that the parties had the right to
request review pursuant to Sec. 102.67, and thus both the Employer and the Petitioner cited that
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We find that the Regional Director erred in holding that the prior petitioner had to
authorize the Petitioner to use the earlier showing of interest to support the instant petition.5
Although the Board has not directly addressed this precise situation, the principles set out in
prior cases compel this conclusion. First, and most importantly, the Board recognizes that, under
Section 9(c)(1)(A)(ii), the petitioner in a decertification case merely acts “[on] behalf of
employees” and that accordingly such a petitioner does not “obtain any individual status or
recognition,” but instead acts “in a representative capacity.” Weyerhaeuser Timber Co., 93
NLRB 842, 844 (1951).6 Second, the Board permits the re-use of a “current” showing of interest
section in seeking review (the Petitioner also cited Sec. 102.71). Requests for review of
administrative dismissals are governed by Sec. 102.71, however.
5 Although the Union is correct that a Regional Director’s determination of the adequacy of the
showing of interest is a non-litigable, purely administrative matter, the adequacy of the showing
of interest is not at issue here. Rather, the question is whether the Regional Director properly
required the instant Petitioner to secure the prior petitioner’s authorization to use the showing of
interest submitted in Case 22-RD-243025. There is no dispute that, taken together, the original
signatures submitted by the instant Petitioner and the prior petitioner would constitute a
sufficient showing of interest, nor is there any dispute that both petitions and their accompanying
showings of interest were otherwise timely. Cf. Excel Corp., 313 NLRB 588, 589 (1993),
reversing 311 NLRB 710 (1993) (pursuant to contract-bar doctrine, Regional Director properly
refused to permit decertification petitioners to submit signatures in support of their showing of
interest after the expiration of window period).
6 In Weyerhaeuser, the Board refused to dismiss a decertification petition filed by an employee
who was subsequently promoted to a supervisory position, emphasizing the decertification
petitioner’s limited representative capacity. The Board explained that after initiating a
decertification proceeding, a petitioner is “only nominally involved in the case” and his or her
participation in the matter “is unnecessary to the ultimate conclusion of the proceeding” because,
after a decertification petition is filed, “responsibility for all further action in the matter
devolve[s] upon the Board.” Id. Moreover, given that the outcome of a decertification election
does not confer any particular status upon the petitioner, in such elections the employees of the
employer “are principally involved rather than the Petitioner. To dismiss the petition herein
would be to their prejudice, not the Petitioner.” Id; see Tyson Fresh Meats, Inc., 343 NLRB
1335, 1335 fn. 3 (2004) (decertification proceedings did not abate after petitioner’s promotion to
supervisory position); Harter Equipment, 293 NLRB 647, 647 fn. 4 (1989) (same). See also
Saginaw Hardware Co., 108 NLRB 955 (1954) (Board denied petitioner’s request to withdraw
decertification petition where other employees indicated desire to continue proceedings);
Northwestern Photo Engraving Co., 106 NLRB 1067, 1067 fn. 1 (1953) (petition not dismissed
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used in a prior proceeding that still reflects the wishes of the employees. See, e.g., General
Dynamics Corp., 175 NLRB 1035 (1969) (showing of interest previously submitted one month
earlier was not stale). Relatedly, the Board has permitted the re-use of a showing of interest
already on file with the Board in connection with a previous petition. See Knox Glass Bottle Co.,
101 NLRB 36, 36 fn. 1 (1952) (petitioner’s failure to provide a showing of interest was not a
“fatal defect” where showing of interest petitioner had submitted in support of earlier petition,
filed and withdrawn 1½ months before present petition, remained on file with regional office).
Drawing on these principles, we find that the Regional Director should have permitted
the instant Petitioner to avail herself of the showing of interest submitted in Case 22-RD-243025,
which was still in the Region’s possession. Under Weyerhaeuser and its progeny, neither
petitioner possessed an individual interest in the proceedings, but merely stood in the shoes of
the employees wishing to decertify the Union. As such, the prior petitioner did not need to
authorize the instant Petitioner’s use of the earlier showing of interest, and rather than focusing
on the identity of the individual decertification petitioners, the Regional Director should have
focused on the wishes of the signatory employees.7 Under General Dynamics and Knox Glass
Bottle, a showing of interest from an earlier petition can be used to support a later petition
involving the same parties as long it is “current.” In this case, the showing of interest in Case
22-RD-243025 was filed a mere two weeks before the current petition and therefore represents
despite death of decertification petitioner because he “was acting in behalf of” affected
employees).
7 In addition, had the instant Petitioner sought to proceed with or reinstate the petition in Case
22-RD-243025 in the face of the first petitioner’s request to withdraw the petition, under
Saginaw Hardware, supra, the Regional Director clearly would have been obligated to permit the
instant Petitioner to do so. To hold that a different result should obtain because the instant
Petitioner—an individual who was unrepresented by counsel when she filed the instant
petition—instead filed a new petition would elevate form over substance.
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the current wishes of the signatory employees; indeed, it is considerably more recent than the
showings the Board found current in General Dynamics and Knox Glass Bottle. The Union’s
argument that the different identities of the petitioners distinguishes the present situation from
General Dynamics and Knox Glass Bottle is without merit because under Weyerhaeuser and its
progeny, the identity of a decertification petitioner can be switched (or dispensed with entirely) if
necessary.
We therefore find that the Petitioner could rely on the showing of interest in Case 22-RD-
243025 in support of her petition, and the Regional Director erred by refusing to permit her to do
so absent the earlier petitioner’s authorization. Accordingly, we reinstate the petition and
remand this case to the Regional Director for further appropriate action.
ORDER
The Regional Director’s administrative dismissal of the petition is reversed, and the case
is remanded to the Regional Director for further action consistent with this Decision.
MARVIN E. KAPLAN, MEMBER
WILLIAM J. EMANUEL, MEMBER
Dated, Washington, D.C., April 6, 2020