New Vista Nursing and Rehabilitation

National Labor Relations Board - Unpublished Board Decisions

Dec 17, 2015

22-CA-029988 (N.L.R.B. Dec. 17, 2015)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
NEW VISTA NURSING AND
REHABILITATION, LLC
and Case 22-CA-029988
1199 SEIU UNITED HEALTHCARE
WORKERS EAST, NJ REGION
ORDER DENYING MOTIONS FOR RECONSIDERATION
On August 26, 2011, the Board issued a Decision and Order in this proceeding
granting the Acting General Counsel’s Motion for Summary Judgment and, inter alia,
ordering the Respondent, on request, to bargain with 1199 SEIU United Healthcare
Workers East, NJ Region as the certified collective bargaining representative of its unit
employees. 357 NLRB No. 69.
On September 9, 2011, the Respondent filed a motion for reconsideration of the
Board’s August 26 Decision and Order. The Respondent advanced two arguments in
support of its motion. First, the Respondent asserted that because the above-referenced
Decision and Order was postmarked August 31, 2011, the decision issued after then-
Chairman Wilma B. Liebman’s departure from the Board on August 27, 2011, and is
therefore void as ultra vires. Second, the Respondent argued that the Board erred in
failing to order a hearing on its contentions that it changed the duties of unit employees
after the Regional Director issued his Decision and Direction of Election finding that those
employees are not supervisors, and that those changes establish that the employees
currently possess supervisory authority and the unit is now inappropriate.
2
On December 30, 2011, the Board issued an Order rejecting the Respondent’s
motion for reconsideration.
1
With regard to the date the underlying decision was issued,
the Board explained that the date of the decision reflected the date on which all
participating members had voted on the final draft, and that the later reproduction, mailing,
and uploading of the decision to the Board’s website were purely ministerial functions that
did not affect the date on which the Decision and Order issued. With regard to the alleged
changes in the duties of unit employees, the Board rejected the Respondent’s contentions
for the reasons set forth in the Board’s August 26, 2011 Decision and Order.
On January 3, March 14, and March 22, 2012, respectively, the Respondent filed its
second, third and fourth motions for reconsideration. In its second motion for
reconsideration the Respondent argued that the December 30, 2011 Order denying its first
motion for reconsideration was improper because it issued without the participation of a
quorum, as Chairman Pearce, who was a member of the panel together with then-
Members Craig Becker and Brian E. Hayes, was recused. By order dated March 15, 2012,
the Board denied the Respondent’s second motion for reconsideration, finding that the
December 30, 2011 Order was properly issued.
In its third motion for reconsideration, the Respondent argued that the December
30, 2011 order denying its first motion for reconsideration was invalid because the recess
appointment of Member Becker, who participated in that decision, had expired prior to that
date. While the Board was considering the third motion for reconsideration, the
Respondent filed its fourth motion for reconsideration reiterating the argument from its third
motion for reconsideration and asserting in the alternative that the March 15 denial of its

1
Chairman Mark Gaston Pearce, who was recused and did not participate in the underlying
decision, was a member of the panel but did not participate in deciding the merits of the
motion for reconsideration.
3
second motion for reconsideration was improper because the recess appointments of
then-Members Griffin and Block, who participated in that decision, were invalid. By order
dated March 27, 2012, the Board denied the Respondent’s third and fourth motions for
reconsideration.
On September 14, 2011, while the first motion for reconsideration was pending, the
Board filed its application for enforcement in the United States Court of Appeals for the
Third Circuit.
2
Thereafter, the Respondent filed its cross-petitions for review.
At the time of the orders denying the Respondent’s second, third and fourth motions
for reconsideration, the composition of the Board included three persons whose
appointments to the Board had been challenged as constitutionally infirm. 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 appointments to the Board were not valid.
By letter dated November 19, 2015, the United States Court of Appeals for the Third
Circuit requested that the parties be prepared to address the following questions at oral
argument:
1) For purposes of our jurisdiction under section 10(e) of the NLRA, what effect, if
any, do pending motions for administrative reconsideration have on the finality of
the order for which the NLRB seeks enforcement?
2) If the NLRB lacked a proper quorum at the time it filed the administrative record
with the Court, why aren’t we required, under section 10(e) of the NLRA, to
remand the record to the NLRB so that it can take action via a properly
constituted quorum?

2
This is consistent with Sec. 102.48(d)(3) of the Board’s Rules and Regulations, which
provides:
The filing and pendency of a motion [for reconsideration] under this provision shall
not operate to stay the effectiveness of the action of the Board unless so ordered. A
motion for reconsideration or rehearing need not be filed to exhaust administrative
remedies.
4
3) In light of New Process Steel, L.P. v. NLRB, 560 US 674 (2010) and NLRB v.
Noel Canning, 134 S. Ct. 2550 (2014), would remanding this case so that the
NLRB may take action with a properly constituted quorum be the most efficient
approach?
On December 2, 2015, in light of NLRB v. Noel Canning and the Court’s questions
referenced above, the Board filed a motion for limited remand of the administrative record
to allow the current Board to address the Respondent’s second, third and fourth motions
for reconsideration. On December 4, 2015, the Court granted the Board’s motion to
remand.
3
The National Labor Relations Board has delegated its authority in this proceeding to
a three-member panel.
4
In its second motion for reconsideration, the Respondent contends that the Board’s
December 30, 2011 Order was improper because it issued without the participation of a
quorum, as Chairman Pearce, who was a member of the panel together with then-
Members Craig Becker and Brian E. Hayes, was recused. At footnote 2 of the Board’s
December 30, 2011 Order, the Board stated:
Chairman Pearce, who is recused and did not participate in the underlying
decision, is a member of the present panel but did not participate in deciding
the merits of this proceeding.
In New Process Steel v. NLRB, _ U.S. _, 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 Act, “the group quorum provision [of Sec.
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 Correctional Medical Services, 356 NLRB No. 48, slip op. at 1
fn. 1 (2010).

3
The Court denied the Board’s additional request that the time period of the remand be limited
to 30 days. Per Sec. 10(c) of the National Labor Relations Act, the Court retained
jurisdiction over this matter.
4
Chairman Pearce is recused and did not participate in the consideration of this matter.
5
Having duly considered the matter, the Respondent’s second motion is denied. We
find that our December 30, 2011 Order was properly issued, for the reasons stated therein.
In its third motion for reconsideration, the Respondent argues that the December
30, 2011 order denying its first motion for reconsideration was invalid because the recess
appointment of Member Becker, who participated in that decision, had expired prior to that
date.
Having duly considered the matter, the Respondent’s third motion for
reconsideration is denied. As the Court’s decision in Noel Canning makes clear, a Senate
session ends when the Senate adjourns sine die. Because the Senate did not adjourn
sine die before December 30, 2011, Member Becker’s term did not end prior to the Board’s
issuance of the December 30, 2011 order. In fact, his term extended to January 3, 2012,
when one Senate session ended and the next session began. Entergy Mississippi, Inc.,
361 NLRB No. 89 (2014).
Finally, in view of our above disposition of the Respondent’s second and third
motions for reconsideration, the Respondent’s fourth motion for reconsideration is denied
as moot.
Dated, Washington, D.C., December 17, 2015
____________________________
Philip A. Miscimarra, Member
____________________________
Kent Y. Hirozawa, Member
____________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD