NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Rockspring Development, Inc. and United Mine Workers of
November 15, 2006
ORDER REMANDING PROCEEDING
By Chairman Battista and
members Schaumber and Kirsinow
On February 3, 2004, Hearing Officer Donald A. Becher issued a report on challenged ballots and recommendations to the National Labor Relations Board in this proceeding. The Employer filed exceptions, the Petitioner filed exceptions and a supporting brief, and each filed an answering brief.
On September 29, 2006, the Board issued a Decision, Direction, and Order in this proceeding, adopting the hearing officer’s recommendations in certain respects, and directing the Regional Director to open and count certain ballots and to prepare a revised tally of ballots. The Board further directed the Regional Director to transfer this proceeding back to the Board if the challenged ballots of Ernest Bartram, Charles Stollings, Andrew Jackson Sharp, and Bobby Lee Stowers remained determinative. On October 12, 2006, the Regional Director, having found that these ballots remained determinative, transferred this proceeding back to the Board for further consideration.1
On September 29, 2006, the Board issued its decisions in Oakwood Healthcare, 348 NLRB No. 37, Croft Metals, Inc., 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39, in light of the Supreme Court’s decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001). Oakwood Healthcare, Croft Metals, and Golden Crest specifically address the meaning of “assign,” “responsibly to direct,” and “independent judgment,” as those terms are used in Section 2(11) of the Act.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has decided to remand this case to the hearing officer for further consideration in light of Oakwood Healthcare, Croft Metals, and Golden Crest, including allowing the parties to file briefs on the issue,2 and, if warranted, reopening the record to obtain evidence relevant to deciding the case under the Oakwood Healthcare, Croft Metals, and Golden Crest framework.
It is ordered that this proceeding is remanded to the hearing officer for appropriate action as noted above.
It is further ordered that the hearing officer shall prepare a supplemental report on challenged ballots setting forth recommendations to the Board, as appropriate on remand. Copies of the supplemental report shall be served on all parties, after which the provisions of Section 102.69 of the Board’s Rules and Regulations shall be applicable.
Dated,
___________________________________
Robert J.
Battista, Chairman
___________________________________
Peter C.
Schaumber, Member
___________________________________
Peter N.
Kirsanow, Member
(seal)
National Labor Relations Board