noting no prejudice occurs where “excluded evidence would not compel or persuade to a contrary result”
How later courts described this case
- noting no prejudice occurs where “excluded evidence would not compel or persuade to a contrary result”
- declining to set aside an election despite “the Board’s faulty adherence to its procedure”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 22, 2015 Decided December 15, 2015
No. 11-1466
SALEM HOSPITAL CORPORATION, DOING BUSINESS AS
MEMORIAL HOSPITAL OF SALEM COUNTY,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
HEALTH PROFESSIONALS AND ALLIED EMPLOYEES,
AFT/AFL-CIO,
INTERVENOR
Consolidated with 12-1009
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Kaitlin A. Kaseta argued the cause for the petitioner.
Bryan T. Carmody was on brief.
Don T. Carmody entered an appearance.
Kellie Isbell, Attorney, National Labor Relations Board,
argued the cause for the respondent. John H. Ferguson,
2
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, and Julie B. Broido, Supervisory Attorney,
were with her on brief.
David Strom, Sam Lieberman and Lisa Leshinski were on
brief for the intervenor Health Professionals and Allied
Employees, AFT/AFL-CIO, in support of the respondent.
Before: HENDERSON, MILLETT and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Salem
Hospital Corporation (Salem) petitions for review of the
National Labor Relations Board’s (Board) certification of a
bargaining unit and its subsequent determination that Salem
unlawfully refused to bargain. The thrust of Salem’s petition
is that the Board’s misapplication of its own adjudicatory
procedures denied Salem a fair opportunity to contest the
bargaining unit’s certification. Although the Board’s
proceedings are indeed gaffe-ridden, Salem has failed to
establish that it was prejudiced thereby. For the reasons set
forth below, we deny Salem’s petition for review and grant the
Board’s cross-application for enforcement.
I. BACKGROUND
Section 7 of the National Labor Relations Act (NLRA or
Act) provides that employees may “form, join, or assist labor
organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining.” 29 U.S.C.
§ 157. An election held to determine whether a union is
entitled to represent a group of employees—i.e., a
3
representation election—must be conducted in “ ‘laboratory
conditions[,]’ free from coercion” from employer and union
alike. See SSC Mystic Operating Co. v. NLRB, 801 F.3d 302,
309 (D.C. Cir. 2015) (citing 29 U.S.C. § 158(a)(1), (b)(1)(A)
(prohibiting employer and union from “interfer[ing] with,
restrain[ing], or coerc[ing] employees in the exercise” of their
collective bargaining rights)).
Particularly relevant here, an employee who acts as a
supervisor does not have section 7 rights. 1 And, like the
employer and the union, he may not interfere with an
employee’s exercise of section 7 rights. See SSC Mystic, 801
F.3d at 309. If a “supervisor’s conduct reasonably tend[s] to
have such a coercive effect on the employees that it [is] likely
to impair their freedoms of choice in the election,” the Board
finds “supervisory taint.” See Harborside Healthcare, Inc.,
343 N.L.R.B. 906, 908 (2004). Supervisory taint affecting a
petition for a representation election can result in the dismissal
of the petition. See Nat’l Labor Relations Bd. Casehandling
Manual, Pt. 2, Representation Proceedings (Manual)
§ 11730.3(a) (2014); see also id. § 11028.2; SSC Mystic, 801
F.3d at 310.
The Act also charges the Board with determining an
appropriate collective bargaining unit. 29 U.S.C. § 159(b).
Pursuant to this duty, the Board investigates a petition filed by
the employees (or a labor organization acting on their behalf),
1
The Act defines a supervisor as “any individual having
authority, in the interest of the employer, to hire, transfer, suspend,
lay off, recall, promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not of
a merely routine or clerical nature, but requires the use of
independent judgment.” 29 U.S.C. § 152(11).
4
declaring that they “wish to be represented for collective
bargaining and that their employer declines to recognize their
representative.” Id. § 159(b). An employer can agree to
conduct an election and resolve disputes after the fact, see 29
C.F.R. § 102.62,2 but if a petition is filed and no agreement is
reached, a Board Regional Director (RD) sets a “representation
hearing” to determine if the petition concerns a “unit
appropriate for the purpose of collective bargaining.” Id.
§ 102.67(a). The hearing officer (HO) does not render a
decision; rather, his duty is to “inquire fully into all matters and
issues necessary to obtain a full and complete record upon
which the Board or the [RD] may discharge their duties.” Id.
§ 102.64(a) (emphasis in original).
The Federal Rules of Evidence are not “controlling” in a
representation hearing, 29 C.F.R. § 102.66(a); see also Manual
§ 11216, but by regulation the Board has set forth detailed
procedures. For example, all parties “have the right
to . . . examine, and cross-examine witnesses, and to introduce
into the record documentary and other evidence.” 29 C.F.R.
§ 102.66(a). In addition, the HO “shall, on the written
application of any party, forthwith issue subpoenas requiring
the attendance and testimony of witnesses and the production
of any evidence . . . under their control.” Id. § 102.66(c);
accord 29 U.S.C. § 161(1). Based on the record the HO
assembles, the RD may “direct an election, dismiss the
petition, or make other disposition of the matter.” 29 C.F.R.
§ 102.67(a). The RD’s decision is appealable to the Board.
Id. § 102.67(b).
2
Unless otherwise indicated, all citations to the Code of
Federal Regulations refer to the version in effect at the time the
described events took place.
5
When an election is held and it produces no objections, the
RD issues “a certification of the results of the election,
including certification of representative where appropriate.”
Id. § 102.69(b). If objections to the election are filed, the RD
may dispose of them via an “administrative investigation” if
they do not “raise substantial and material factual issues,” id.
§ 102.69(d); see also Manual § 11395.1; otherwise a hearing is
set before another HO to determine their merit. 29 C.F.R.
§ 102.69(d). 3 If a hearing is held, the presiding officer
(whether HO or ALJ) issues a “report resolving questions of
credibility and containing findings of fact and
recommendations as to the disposition of the issues.” Id.
§ 102.69(e). The parties may thereafter file “exceptions” to
the report, id., which exceptions the Board may ultimately
review. Id. §§ 102.69(f), 102.67(c). Once this procedure
runs its course, the Board may certify the union but a
certification is generally not immediately judicially
reviewable. See, e.g., Hartz Mountain Corp. v. Dotson, 727
F.2d 1308, 1310–11 (D.C. Cir. 1984). To obtain judicial
review of the certification, an employer can decline to bargain
with the certified union, which declination then produces a
ULP complaint.4 See 29 U.S.C. §§ 158(a)(5), 160(f). The
3
If there is simultaneously pending an unfair labor practices
(ULP) proceeding, the RD “may consolidate the [representation]
hearing . . . before an administrative law judge” instead of an HO.
29 C.F.R. § 102.69(c)(1)(ii) (2015); id. § 102.33(a), (c) (2010).
4
Although the Board’s General Counsel (GC) exercises
ultimate authority over the prosecution of a ULP complaint, see 29
U.S.C. § 153(d), the RD plays a substantial role in the process. For
example, the ULP charge is generally filed with the RD of the region
in which the alleged ULP has occurred or is occurring. 29 C.F.R.
§ 102.10. The RD then investigates to determine whether a
complaint should issue. The investigation may be “as simple as
ascertaining whether certain statements were made . . . . [o]r, the
case may be as complex as ascertaining whether the parties’ overall
6
Board’s handling—and, at times, mishandling—of its layered
procedure forms the heart of this case.
Salem is an acute-care facility located in Salem, New
Jersey. On May 19, 2010, Health Professionals and Allied
Employees AFT, AFL-CIO (HPAE or Union) filed an election
petition with the Board to represent Salem’s registered nurses.
The proposed unit included charge nurses (CNs), who, Salem
maintained, were supervisors and thus ineligible for
representation under the Act. A representation hearing before
an HO began on June 2, 2010, to create the record on which the
RD was to determine the CNs’ status and the appropriateness
of the proposed bargaining unit.
While the representation hearing was underway, Salem
filed a ULP charge against HPAE alleging supervisory taint
resulting from the involvement of two alleged supervisory CNs
in the filing of the petition. Upon receiving the charge, the
RD began a second process to resolve the taint dispute: Salem
was directed to provide the RD with evidence regarding the
CNs’ alleged involvement in the filing, while the record
conduct over the course of protracted contract negotiations violated
[the Act].” See Nat’l Labor Relations Bd. Casehandling Manual,
Pt. 1, Unfair Labor Practice Proceedings § 10050 (2015). The
charging party must, inter alia, meet with Board agents and comply
with any reasonable request necessary to complete the investigation.
See id. § 10054.1. If the charging party delays presentation of
evidence without cause, the charge is “subject to dismissal for lack
of cooperation.” Id. If the charging party’s evidence presents a
“prima facie case,” the charged party “should be contacted to
provide additional and more complete evidence.” See id.
§ 10054.4. The RD issues a complaint if “it appears . . . that formal
proceedings in respect [of the charge] should be instituted” and sets a
hearing before an administrative law judge (ALJ). 29 C.F.R.
§ 102.15. At this point, the GC prosecutes the complaint.
7
regarding the predicate CN supervisory status question was yet
to be completed by the HO conducting the representation
hearing.
Over a one-week period, June 2–9, 2010, witnesses for
both Salem and the Union testified at the representation
hearing. Two complications arose. First, Salem moved to
transfer the proceeding to another regional office, alleging that
the HO had engaged in ex parte communications with certain
CN witnesses. The motion was denied, first by the HO and,
ultimately, by the GC. Second, Salem requested that the HO
prepare subpoenas for certain witnesses. Although the HO
confirmed that the subpoenas would be prepared, see
Representation Hr’g Tr. at 807 (“[Salem’s Counsel] has
requested some subpoenas. They are being prepared.”), he
closed the record on the following day over Salem’s objection.
The RD’s concurrent investigation of Salem’s supervisory
taint charge also proved troublesome. Salem missed multiple
deadlines to produce witnesses for RD interviews. Moreover,
the affidavit evidence it submitted to the RD was deemed
insufficient. See Reg’l Dir.’s Letter of Dismissal 1 (“Even
assuming that these charge nurses are supervisors within the
meaning of . . . the Act, there is insufficient evidence to
establish that the charge nurses’ limited prounion activities
coerced employees in the exercise of their Section 7 rights.”).
The RD then closed the investigation and declined to issue a
complaint. Salem appealed the RD’s decision to the GC but
its appeal was denied. See Gen. Counsel’s Denial of Hosp.’s
Appeal of Reg’l Dir.’s Refusal to Issue Compl.
On August 2, 2010, using the HO’s record from the
representation hearing, the RD issued her decision regarding
8
the CNs’ supervisory status. She concluded that all but two5
of Salem’s CNs were not supervisors and issued a “direction of
election.” The election took place on September 1–2, 2010.
Salem challenged the RD’s election order, arguing, inter alia,
that the HO’s record closure was premature, repeating its
allegation of ex parte communications between the HO and
CN witnesses and claiming that the alleged supervisors tainted
the election petition. The Board denied the petition,
concluding that Salem raised no issues warranting review.
Thereafter, the election results were released and revealed that
the Union won 73–48.
Salem next moved the RD to set aside the election results,
raising 20 objections. Objections 1–16 tracked the events
leading up to the election, that is, Salem’s supervisory taint
charge and the proceedings resulting in the determination that
the CNs were not supervisors. Objections 18–20 involved
allegations of impropriety that occurred during the election.6
On January 10, 20117 the RD set a hearing before an HO to
resolve the objections. The case was then consolidated with a
pending ULP proceeding initiated by the Union and set to be
heard by an ALJ on February 22.8
5
The RD excluded the two nurses from the bargaining unit.
See Reg’l Dir.’s Decision and Direction of Election at 23 n.12.
6
On December 30, 2010, Salem abandoned Objection 17 by
letter to the RD.
7
All subsequent dates occurred in 2011 unless otherwise
noted.
8
The consolidation occurred because there was a pending
ULP complaint against Salem based on charges the Union made. It
withdrew the charges before the hearing began. See Union’s Mot.
for Special Permission to Appeal at 2 n.5; Salem Hosp. Corp., &
Health Prof’ls & Allied Emps., JD-14-11, 2011 WL 1043489 (Mar.
9
On February 15, the Union filed a “request for special
permission to appeal” (Special Appeal) with the Board,
arguing that Salem’s Objections 1–16 had already been
decided and urging the Board to reverse the RD’s decision
setting a hearing thereon. Seven days later—before Salem
responded and on the same day the ALJ began the
representation hearing—the Board granted the Special Appeal
and reversed the RD’s decision. Salem filed its response to
the Union’s Special Appeal with the Board later that same day.
Although the Board overturned the RD’s decision to set a
hearing on Objections 1–16, it remanded the Objections to the
RD for disposition. The RD administratively dismissed them
on February 24. Before the ALJ reached the merits of the
remaining Objections, Salem made two separate filings with
the Board. First, Salem moved for reconsideration of the
Board’s grant of the Union’s Special Appeal, arguing that its
regulations did not allow for the procedure and that, assuming
they did, Salem was, at a minimum, entitled to respond.
Second, Salem appealed the RD’s administrative dismissal of
Objections 1–16. Before the Board ruled on either motion,
the ALJ found against Salem on Objections 18–20 and
23, 2011). It is, however, unclear whether Board procedure was
followed when the ALJ continued to hear the representation case.
Board rules direct that an HO conduct a hearing on objections to an
election. 29 C.F.R. § 102.69(d); cf. 29 C.F.R. § 102.69(c)(1)(ii)
(2015) (“[E]xcept that the regional director may consolidate the
hearing concerning objections and challenges with an unfair labor
practice proceeding before an administrative law judge.”). By the
time the hearing set for February 22nd occurred, the ULP complaint
had been withdrawn. The rules authorize the RD to sever a
previously consolidated case, 29 C.F.R. § 102.33(a)(4), (c), and,
presumably, assign the representation hearing to an HO and the ULP
proceeding to an ALJ. Here the RD instead allowed the remaining
representation hearing to proceed before the ALJ.
10
explained that he did not resolve Objections 1–16. See Salem
Hosp. Corp., & Health Prof’ls & Allied Emps., JD-14-11, 2011
WL 1043489 (Mar. 23, 2011) (“I have not treated with or
considered in any respects [Salem’s] Objections 1–16.”).
On April 6, Salem filed seven exceptions to the ALJ’s
decision, arguing that he erred in declining to rule on
Objections 1–16 and that his findings on Objections 18–20
were wrong on the merits. On August 3, the Board9 denied
the exceptions and certified HPAE as the exclusive collective
bargaining representative for Salem’s registered nurses
(including CNs). The Board also denied Salem’s
reconsideration motion regarding the Union’s Special Appeal.
The Board, however, neglected to dispose of Salem’s appeal of
the RD’s administrative dismissal of Objections 1–16.
Salem then refused to recognize or bargain with HPAE
and, on September 14, the GC filed a ULP complaint alleging
9
Although it is unclear from the record, Salem claims that it
“filed with the Board timely Exceptions to [the ALJ’s] decision,”
Pet’r Br. at 14 (emphasis added); Employer’s Br. in Sup. of its
Exceptions to the Rec. Dec. of Administrative Law Judge Earl E.
Shamwell, Jr., at 1, and indeed, the Board ruled on them.
Parenthetically, the rules now direct that exceptions to a
post-election representation hearing order must be filed with, and
ruled on by, the RD. 29 C.F.R. § 102.69(c)(iii) (2015) (“Any party
may, within 14 days of the issuance of such report, file with the
regional director . . . exceptions to such report . . . . . The regional
director shall thereupon decide the matter upon the record or make
other disposition of the case.”). An appeal may then be taken to the
Board. Id. § 102.69(c)(2) (“The decision of the regional
director . . . shall be final unless a request for review is granted [by
the Board].”). Granted, exceptions to an ALJ’s ULP ruling are filed
directly with the Board, id.; 29 C.F.R. § 102.46 (2015), but the
Union had dropped its ULP complaint, see supra n.8.
11
that “[o]n or about August 17, Respondent, by letter of [CEO],
notified the Union that it refused to recognize and bargain with
the Union as the exclusive collective bargaining representative
of the Unit.” Complaint and Notice of Hearing, Case
04-CA-064455 at 2. Salem conceded its refusal but raised as
“affirmative defenses” many of the alleged improprieties that
plagued the earlier proceedings—specifically, that: (1) the
Board should have sustained Salem’s objections to the
election; (2) the Board should not have granted the Union’s
Special Appeal; (3) the GC should have transferred the
representation hearing to another HO; (4) the GC should have
issued a complaint in connection with Salem’s supervisory
taint charge; and (5) the Board impermissibly failed to rule on
Salem’s appeal of the RD’s dismissal of Objections 1–16.
An ALJ hearing was scheduled for December 14, but, on
October 12, the GC moved for summary judgment before the
Board. See 29 C.F.R. § 102.24(a) (summary judgment
motion is to be filed with Board). Before ruling on the
motion, the Board issued an “erratum” amending its August 3rd
certification order. The one-page order acknowledged the
Board’s failure to resolve Salem’s appeal of the RD’s
dismissal of Salem’s Objections 1–16 and purported to deny it
nunc pro tunc. Finally, on November 29 the Board granted
the GC’s motion for summary judgment on the ULP
complaint, concluding that all of Salem’s defenses either
were—or could have been—litigated in the earlier
proceedings. Salem Hosp. Corp., 357 NLRB No. 119, 2011
WL 5976073 at *1 & n.5 (2011) (citing Pittsburgh Plate Glass
Co. v. NLRB, 313 U.S. 146, 162 (1941)).
Salem timely petitioned for review of the Board’s
November 29 order and the Board cross-applied for
enforcement. Our jurisdiction is based on 29 U.S.C. § 160(e),
(f).
12
II. ANALYSIS
Salem’s several challenges focus, at bottom, on the
Board’s faulty adherence to its procedure.10 Our review is for
abuse of discretion, see Canadian Am. Oil Co. v. NLRB, 82
F.3d 469, 473–76 (D.C. Cir. 1996) (reviewing challenged
procedural steps), and Salem must show that “prejudice
resulted from” the Board’s lapses. Desert Hosp. v. NLRB, 91
F.3d 187, 190 (D.C. Cir. 1996). This it fails to do. Our
analysis is informed by the significant deference we accord the
Board’s determination of an appropriate bargaining unit,
reversing only if the certification is “arbitrary and without
substantial evidence.” Cleveland Constr., Inc. v. NLRB, 44
F.3d 1010, 1014 (D.C. Cir. 1995).
A. CLOSING REPRESENTATION HEARING RECORD
First, Salem challenges the HO’s closure of the record
before Salem could present evidence supporting its claim
regarding the CNs’ supervisory taint. The NLRA is largely
silent on the gathering and presentation of evidence at a
representation hearing but the Board has provided substantial
guidance by regulation. For example, it is the HO’s duty to
“inquire fully into all matters and issues necessary to obtain a
full and complete record.” 29 C.F.R. § 102.64(a). The
hearing itself is “investigatory, intended to make a full record
10
Under recent Board precedent, Salem also challenges the
validity of the regulation—29 C.F.R. § 103.30(a)—pursuant to
which the Union was certified. Because Salem did not press its
argument in the proceedings before the Board, however, it is
forfeited. See 29 U.S.C. § 160(e) (“No objection that has not been
urged before the Board . . . . shall be considered by the court.”).
Moreover, we reviewed the challenged regulation in San Miguel
Hosp. Corp. v. NLRB, 697 F.3d 1181 (D.C. Cir. 2012), and upheld it
against an identical challenge.
13
and nonadversarial.” See Manual § 11181. Before the
hearing closes, the HO is to ask “on the record, whether [the
parties] have anything further to add.” See id. § 11240. And
he “shall, on the written application of any party, forthwith
issue subpoenas requiring the attendance and testimony of
witnesses.” 29 C.F.R. § 102.66(c) (emphasis added); see also
id. (“The Regional Director or the hearing officer . . . shall
forthwith grant the subpoenas requested.”).11
The HO’s premature closing of the record was without
explanation. One day after announcing that Salem’s
requested subpoenas would issue, he closed the record over
Salem’s objection. Granted, the HO apparently agreed with
the Union that Salem’s requested witnesses were cumulative12
11
The NLRA contains a similar provision. See 29 U.S.C.
§ 161(1) (Board “shall upon application of any party to such
proceedings, forthwith issue to such party subp[o]enas requiring the
attendance and testimony of witnesses”). The Board may revoke a
subpoena only if “in its opinion the evidence whose production is
required does not relate to any matter under investigation, or any
matter in question in such proceedings, or if in its opinion such
subp[o]ena does not describe with sufficient particularity the
evidence whose production is required.” Id. In Drukker
Communications v. NLRB, 700 F.2d 727 (D.C. Cir. 1983), we
recognized two grounds (“unwarranted interference with First
Amendment rights,” id. at 730, and whether production would “harm
the public interest,” id. at 731) for revoking a subpoena but
concluded that, in the absence of an express or implied ground,
revocation amounts to agency action “without observance of
procedure required by law.” Id. at 734; see also 5 U.S.C.
§ 706(2)(D). Salem does not argue that closing the record also
violated the statute.
12
The Union argued that “[t]his testimony is cumulative or
repetitive . . . we would just object and ask that the testimony be
limited.” Representation Hr’g Tr. at 915. The HO
14
but that inference is hardly ineluctable. According to the
record, the HO stated only that “the Employer and the
Petitioner have had an opportunity to discuss the supervisory
status of the charge nurses” and that he was “not going to take
additional testimony.” Representation Hr’g Tr. at 916. In
her decision on the CNs’ supervisory status, the RD also failed
to explain the HO’s failure to issue the subpoenas.
Notwithstanding this misstep, the record does not indicate
that Salem sought to introduce relevant, non-cumulative
evidence and, without that, we cannot find that Salem was
prejudiced. See Reno Hilton Resorts v. NLRB, 196 F.3d 1275,
1285 n.10 (D.C. Cir. 1999) (no abuse of discretion where
excluded evidence would not “compel or persuade to a
contrary result” (quoting Cooley v. FERC, 843 F.2d 1464,
1473 (D.C. Cir. 1988))); cf. Ozark Auto. Distribs., Inc. v.
NLRB, 779 F.3d 576, 580–81 (D.C. Cir. 2015) (vacating
decision to exclude evidence that was non-cumulative and
critical to employer’s defense). At the hearing, Salem simply
asserted that it had “additional witnesses who will be probative
of the . . . supervisory status of charge nurses” and that it
intended to go “through the same kind of questioning of those
witnesses as [it] did with [its previous] witnesses and as the
Union ha[d] done with their witnesses. It would concern the
testimony of [the] Union’s witnesses and embellishment of
that position and testimony.” Representation Hr’g Tr. at 914
(emphasis added).13
contemporaneously “rule[d] that [he would] not allow any additional
testimony.” Id.
13
In its brief, Salem claims that the “Union voiced no
objection to the Hospital’s desire to offer further evidence.” Pet’r
Br. at 25–26. But, as we noted, see supra n.12, that is not true. In
addition, although the record is unclear, we note that Salem’s
15
In any event, the Board’s determination of the CNs’
non-supervisory status is supported by substantial evidence.
The RD made detailed findings14 based on the representation
hearing record and her reasoning sufficed to support her
determination regarding the CNs’ non-supervisory status. See
Reg’l Dir.’s Decision and Direction of Election. Further, the
Board finds against supervisory status if there is conflicting
evidence in the record, see Phelps Cmty. Med. Ctr., 295 NLRB
486, 490 (1989) (“[W]henever the evidence is in conflict or
otherwise inconclusive on particular indicia of supervisory
counsel apparently requested the subpoenas as a delaying tactic to
prevent the HO’s closing the record. After the HO predicted that
the hearing would conclude within one day, Salem’s counsel
asserted: “Not if I have anything to do with it. Request for
subpoenas, the issuance of subpoenas.” Representation Hr’g Tr. at
805. If this is so, it is indeed regrettable. We have previously
noted the sharp practice of Salem’s counsel in proceedings before us
and do so again here in an effort to stop its repetition. See San
Miguel Hosp. Corp., 697 F.3d at 1188 (“As we noted at the outset,
the Hospital unleashed a blizzard of arguments to challenge the
Board’s unfair-labor-practice orders. It might be appropriate to
suggest that in appellate argument, the proverbial rifle is preferable
to a machine gun—but that would assume petitioner had at least a
few good arguments; it did not. In truth, it appears to us that all the
Hospital sought was the inevitable delay that review of Board orders
affords.”).
14
See Reg’l Dir.’s Decision and Direction of Election at 17
(finding Salem CNs assign nurses to patients but process “does not
involve independent judgment” and nurses “generally meet and
decide among themselves which nurse should care for which
patient”); id. at 19 (finding Salem CNs direct aides to perform some
rudimentary tasks but “any nurse, not only a CN, may request that
aides perform such functions” and “assignment of [these] basic tasks
[does not] require[] independent judgment.”); id. at 20 (only
disciplinary authority CNs have is to issue “written warning”).
16
authority, we will find that supervisory status has not been
established.”), and that is what it did here. See Reg’l Dir.’s
Decision and Direction of Election at 17 n.11 (“At best,
[Salem] can argue that the evidence is in conflict as to whether
the CNs [exercise supervisory authority]. The Board will not
find supervisory status in the face of such a conflict.”).
Nonetheless, Salem contends that the excluded testimony
would have resolved conflicting evidence tending to show
non-supervisory status.15 We do not see how, by introducing
more conflicting testimony, Salem could have solved the
evidentiary conflict.
Salem relies on our Ozark decision to argue that parties
have a right to present all relevant evidence during a
representation hearing. But Ozark involved substantially
different facts. There, the employer challenged the Board’s
certification because four of its employees allegedly “acted as
agents of the union.” Ozark, 779 F.3d at 580. In a
post-election objection hearing, the employer served
subpoenas duces tecum on the union and on an employee who,
according to the employer, had acted as a union agent. Id. at
578. Both the union and the employee objected to the
subpoenas on the grounds of overbreadth and privilege. Id.
After reserving her ruling on the subpoenas, the HO eventually
granted the union’s and the employee’s motions to revoke the
subpoenas without examining the documents the employer
sought. Id. at 578–79. We found that the HO’s revocation
action violated Board procedure. Id. at 581–82. The Board’s
Guide for Hearing Officers in Representation Proceedings
“state[d] that when confidentiality or other objections are
raised to oppose a subpoena . . . the hearing officer should
15
See Pet’r. Br. at 25 (arguing its witnesses would testify
that, based on their everyday working relationship with CNs, patient
assignment was “hardly ‘collaborative’ ”).
17
consider receiving the material in camera and reviewing the
documents to determine whether redacting certain information
or narrowing the scope of the subpoena might cure the
objection.” Id. at 582. We concluded that the procedural
flaw prejudiced the employer because establishing that
employees acted as union agents was critical to the employer’s
defense; in addition, the HO’s delay in ruling on the subpoenas
increased the prejudice to the employer because, had the
employer known earlier that the subpoenas would be quashed,
it could have “alter[ed] its presentation . . . . All trial lawyers
know the danger of the unknown.” Id.
We are not persuaded by Salem’s attempt to align its case
with Ozark. In Ozark we found prejudice based on both the
relevant and non-cumulative nature of the evidence sought to
be presented and the delay in ruling, which exposed the
employer to uncertainty in establishing its defense. Id. at
582–83. By contrast, because Salem failed either to make a
proffer or to provide any other specific evidence of potential
witnesses’ testimony,16 we cannot determine that the excluded
evidence was either relevant or material.
16
At oral argument Salem’s counsel contended that its
proffer was made orally, see Oral Arg. Recording at 3:30 (“Counsel
for the hospital explicitly references the house supervisors and the
need, in light of the evidence elicited by the Union . . . to put on the
house supervisors to explain their duties and also to explain the
illogical position being taken during testimony by the charge
nurses.”); see also Representation Hr’g Tr. at 914–15 (“[I]t would be
the house supervisors” and “it would concern the testimony of [the]
Union’s witnesses and embellishment of that position and
testimony.”). To the extent we can consider the foregoing a proffer,
it hardly tells us what the witnesses would testify to, much less how
their testimony could “persuade to a contrary result,” Reno Hilton
Resorts, 196 F.3d at 1285 n.10, given the Board’s practice of finding
18
In sum, despite the Board’s unexplained failure to allow a
party to submit evidence at a representation hearing, Salem has
not, as it must, established prejudice. Accordingly, we
conclude that the HO’s premature closing of the record was not
an abuse of discretion.
B. FAILURE TO TRANSFER FOR ALLEGED EX PARTE
COMMUNICATIONS
Salem next challenges the GC’s failure, on review from
the HO’s similar failure, to transfer the representation hearing
to another region in light of the alleged ex parte
communications. The Board’s regulations prohibit ex parte
communications. 29 C.F.R. § 102.126(b) (“No Board
agent . . . participating in [relevant proceedings], shall . . .
make or knowingly cause to be made any prohibited ex parte
communications about the proceeding to any interested person
outside this agency relevant to the merits of the proceeding.”).
Board regulations also grant the GC power to transfer the case
“in order to effectuate the purposes of the [NLRA].” Id.
§ 102.33(a).
The GC’s failure to transfer was reasonable under the
circumstances. Salem did not make specific allegations of ex
parte communications, see Gen. Counsel’s Denial of Hosp.’s
Mot. to Transfer at 2 (July 27, 2010) (“Initially, outside of
unsubstantiated claims, your communication references no
evidence of such ex parte meetings.”), and the GC’s own
investigation found that “neither the Hearing Officer nor his
supervisor engaged in any.” Id. In fact, the “Hearing
Officer’s contact with the Employer’s nurses, except for an
against supervisory status if there is conflicting evidence. See
Phelps Cmty. Med. Ctr., 295 NLRB at 490.
19
occasional pleasantry, was limited to those times when they
were testifying on the record.” Id.
Salem faults the GC for failing to request its evidence of
ex parte communications but cites no regulation or policy that
requires the GC to affirmatively seek evidence. Moreover,
Salem had the opportunity to present its evidence, both in its
petition for transfer before the GC and in its earlier motion
before the HO. But the petition contained only conclusory
assertions, see Salem’s Mot. to Transfer at 1 n.1 (“It was
apparent during the hearing (specifically on June 4, 2010)
that . . . [the HO] had met privately with the Union’s two
attorneys and at least [one CN] . . . regarding various issues
related to the petition.”), and the same was true at the hearing.
See Representation Hr’g Tr. at 618 (“I would imagine that
there are Board agents . . . who are bound by certain ethical
consideration, in terms of meeting with a supervisor of this
Employer in my absence. And I just want the Regional Office
to understand, if that is something which is in play here . . . I
would recommend that serious thought be given to whether or
not to modify that behavior.”).
In any event, Salem does not claim that it was prejudiced
by the decision not to transfer. Indeed, “ex parte
communications, even when undisclosed during agency
proceedings, do not necessarily void an agency decision.”
Prof’l Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 564
(D.C. Cir. 1982). Rather, a party must show that “as a result
of improper ex parte communications, the agency’s
decisionmaking process was irrevocably tainted.” Id.
Because Salem has not shown prejudice, we conclude that
neither the HO nor the GC abused his discretion.17
17
In its brief Salem argued that the alleged ex parte
communications meant that the HO had prejudged the CNs’ status.
20
C. UNION’S SPECIAL APPEAL
Salem makes two arguments regarding the Union’s
Special Appeal of the RD’s decision to set a hearing on
Salem’s Objections 1–16. First, Salem asserts that no Board
rule permits such an appeal. Second, it objects to the Board’s
failure, in any event, to allow Salem to respond. The Board’s
errors are not insignificant but, again, prejudice to Salem is
lacking.
The Special Appeal was undoubtedly unauthorized. The
Union relied on 29 C.F.R. § 102.26 to press its Special Appeal
but that rule governs appeals in unfair labor practices
proceedings. The Board asserts that another rule—29 C.F.R.
§ 102.65(c)—permits the appeal. Even if the Board is correct,
it misapplied the rule here.
At the time the Union made its Special Appeal, Section
102.65(c) provided that
Requests to the regional director, or to the
Board in appropriate cases, for special
permission to appeal from a ruling of the
hearing officer, together with the appeal from
such ruling, shall be filed promptly, in writing,
Its argument does not support a prejudice finding given that the
RD—not the HO—makes the status determination. See 29 C.F.R.
§ 102.67 (directing that RD, not HO, render a decision). Salem also
argued that, in order to protect the HO, the RD had an improper
incentive to find no supervisory status. We reject this conclusory
assertion. Cf. Withrow v. Larkin, 421 U.S. 35, 55 (1975) (“Without
a showing to the contrary, [government actors] are assumed to be
men of conscience and intellectual discipline, capable of judging a
particular controversy fairly on the basis of its own circumstances.”)
(internal quotations omitted).
21
and shall briefly state (1) the reasons special
permission should be granted and (2) the
grounds relied on for the appeal. . . . Any
statement in opposition or other response to the
request and/or to the appeal shall be filed
promptly.
(emphasis added). 18 Section 102.65(c) gave the Board
considerable discretion in its implementation, viz., special
appeals to the Board were permitted “in appropriate cases.”
29 C.F.R. § 102.65(c). But the Board could not explain at oral
argument why this was an “appropriate case,” see Oral Arg.
Recording at 23:34–25:15 (“I do not think it is
unprecedented . . . . I could try to find out for you.”). 19
Moreover, the Board’s interpretation of “filed promptly” here
is inconsistent at best. The Board heard the Union’s Special
Appeal even though it was filed more than one month after the
RD decision setting a hearing. If the Union’s filing was
prompt, then Salem’s response within one week was
alacritous. Yet the Board gave one party over one month to
18
The highlighted language has since been deleted.
Section 102.65(c) now provides: “Requests to the regional director
for special permission to appeal from a ruling of the hearing officer,
together with the appeal from such ruling, shall be filed promptly, in
writing, and shall briefly state the reasons special permission should
be granted and the grounds relied on for the appeal. . . . Any
statement in opposition or other response to the request and/or to the
appeal shall be filed promptly, in writing, and shall be served
immediately on the other parties and on the regional director.”
19
If not unprecedented, the Board has apparently expanded
the scope of section 102.65(c) by allowing special appeals from an
RD decision although special appeals were (and are) limited to “a
ruling of the hearing officer.” 29 C.F.R. § 102.65(c); see also 29
C.F.R. § 102.65(c) (2015).
22
file without allowing the other side so much as a week to
respond.
Nonetheless, Salem once again cannot establish that the
Board’s mistake prejudiced it. Salem asserts that, by granting
the Union’s Special Appeal and reversing the RD’s decision
setting a hearing, it was stripped of its ability to argue the
merits of Objections 1–16 to the ALJ. Although true, Salem
was not prejudiced thereby for at least three reasons. First,
Objections 1–16 related to the CNs’ supervisory status, an
issue that had already been litigated before the Board. Even if
Salem were allowed to make its arguments to the ALJ, we see
no reason that the ALJ would have reached a conclusion
contrary to that of the Board. Second, if Salem were for some
reason successful before the ALJ, the Board reviews his
decisions and the Board had already determined that Salem’s
objections constituted prohibited relitigation.20 Finally, if the
procedural error did prejudice Salem, the prejudice was cured
when the Board considered Salem’s motion for
reconsideration. Before certifying the Union, the Board
reconsidered its earlier order—this time with the benefit of
Salem’s response—and reached the same conclusion.
D. BOARD’S “ERRATUM” ORDER
Salem next questions the propriety of the Board’s
Erratum, which redressed the latter’s failure to timely rule on
20
See 29 C.F.R. § 102.69(d) (directing that hearing be held
only if there are “substantial and material factual issues”). The
Union argued that Objections 1–16 did not meet this requirement
because they were already “decided by the RD in the [decision and
direction of election], concerning which review was denied by the
Board,” Union’s Mot. for Special Permission to Appeal at 2, and the
Board agreed. See NLRB Order Granting Mot. for Special
Permission to Appeal at 2.
23
Salem’s appeal of the RD’s administrative dismissal of
Objections 1–16. But the Board had already determined that
Salem’s Objections 1–16 were meritless. It did so both when
it denied Salem’s petition for review of the RD’s direction of
election and when it granted the Union’s Special Appeal.
Salem does not explain how the Board’s issuance of the
erratum was ultra vires or how the order prejudiced it.
E. BOARD’S DENIAL OF SALEM’S DEFENSE TO ULP
CHARGE
Salem’s final salvo is that the Board prevented it from
litigating supervisory taint as a defense to the ULP charge.
We do not see how Salem could establish taint without
relitigating the predicate supervisory question but it
nonetheless maintains that the Board should have permitted it
to make the argument as a defense in the ULP proceeding.
Board regulations generally prohibit—in ULP
proceedings—relitigation of matters that arose at the earlier
representation proceeding stage. See 29 C.F.R. § 102.67(f)
(“[This rule] shall preclude . . . parties from relitigating, in any
related subsequent unfair labor practice proceeding, any issue
which was, or could have been, raised in the representation
proceeding.” (emphasis added)). We have upheld the rule,
see Pace Univ. v. NLRB, 514 F.3d 19, 23–24 (D.C. Cir. 2008),
and only limited exceptions apply. For example, relitigation
is allowed if newly discovered evidence requires
reexamination of the representation decision. See Joseph T.
Ryerson & Sons, Inc. v. NLRB, 216 F.3d 1146, 1151 (D.C. Cir.
2000) (“It is well established that in the absence of newly
discovered evidence or other special circumstances requiring
reexamination of the decision in the representation proceeding,
a respondent is not entitled to relitigate in a subsequent
refusal-to-bargain proceeding representation issues that were
24
or could have been litigated in the prior representation
proceeding.” (quotation omitted)). Relitigation is also
permitted if subsequent legal authority changes the relevant
law. See Alois Box Co. v. NLRB, 216 F.3d 69, 78 (D.C. Cir
2000) (“Because . . . the company failed to present legal
authority indicating that the Board had changed its standard for
determining supervisory status” the application of its “rule
against relitigation” was proper). Again, we review
application of the Board’s no-relitigation rule for abuse of
discretion. See Pace Univ., 514 F.3d at 24.
The relitigation ban plainly applied to Salem. Salem had
already raised the CNs’ supervisory status issue in the
representation proceeding and lost. It was also unsuccessful
in pursuing its supervisory taint charge. Salem nonetheless
makes three arguments in favor of relitigation. First, Salem
recycles the argument about its inability to present supervisory
status evidence at the representation hearing. We resolved
this issue at the representation hearing level, see supra part
II.A, and Salem offers no reason for us to reconsider it at the
ULP stage. Next, Salem contends that parties in ULP
proceedings are guaranteed the right to raise affirmative
defenses, notwithstanding the GC considered the facts
supporting the defense in the context of a potential charge and
declined to issue a complaint. Although Salem is correct, see
United Food and Commercial Workers v. NLRB, 675 F.2d 346,
354–55 (D.C. Cir. 1982) (because “[a] party subject to an
unfair labor practice complaint has a right to a hearing” and
“the scope of the General Counsel's investigatory inquiry does
not approach that of the required hearing,” GC’s consideration
and denial of charge cannot prevent party from litigating facts
of charge as defense in ULP proceeding), the argument gets it
only half-way to the finish line. It removes one obstacle—the
GC’s decision not to pursue a supervisory taint complaint—but
leaves another undisturbed—the fact that Salem already
25
litigated—and lost—a question of fact essential to the defense,
namely, the CNs’ non-supervisory status.
Finally, Salem contends that Board precedent permits
relitigation here, relying on Sub-Zero Freezer Co., 271 NLRB
47 (1984) (allowing employer to relitigate pre-election issues
at ULP proceeding). But, as the Board describes it, Sub-Zero
is a limited exception. Salem Hosp. Corp., 357 NLRB No.
119, 2011 WL 5976073 at *1 n.5 (“Sub-Zero is one of a limited
number of cases in which the Board has departed from the
[no-relitigation] rule.”). There, the Board credited allegations
that union supporters had threatened the property and lives of
voting employees.21 The election was also close—the union
won by only two votes. Sub-Zero, 271 NLRB at 47. The
Board in Sub-Zero acknowledged its departure from the
general no-relitigation policy but explained that failure to
make an exception there would result in an order “requiring an
employer to bargain with a union that has not attained the
status of majority representative from a free and fair election.”
Id.
Assuming arguendo that the Board erred by not allowing
Salem to use the Sub-Zero exception, we believe no prejudice
resulted therefrom. As we have explained, substantial
evidence supports the Board’s conclusion that the CNs were
not supervisors. In addition, Salem had failed to persuade the
RD that the CNs engaged in any conduct resulting in
supervisory taint even if they were in fact supervisors. We
therefore conclude that the Board did not abuse its discretion in
prohibiting Salem from relitigating supervisory taint.
21
In Sub-Zero, the Board incorporated by reference the facts
set forth in an earlier Board decision. Sub-Zero, 271 NLRB at 47
(citing 265 NLRB 1521, 1522–23 (1982)).
26
* * *
The Board’s myriad missteps—its own as well as those of
its agents—are a cause for concern and we can only hope that
this case constitutes an exception to an otherwise robust and
faithful adherence to the Board’s own process. See, e.g.,
Morton v. Ruiz, 415 U.S. 199, 235 (1974) (“[I]t is incumbent
upon agencies to follow their own procedures.”).
For the foregoing reasons, we deny Salem’s petition for
review and grant the Board’s cross-application for
enforcement.
So ordered.