800 River Road Operating Co. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2016 Decided January 24, 2017

No. 15-1204

800 RIVER ROAD OPERATING COMPANY, LLC, D/B/A

WOODCREST HEALTH CARE CENTER,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

1199 SEIU UNITED HEALTHCARE WORKERS EAST,

INTERVENOR

Consolidated with 15-1281

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Brian J. Gershengorn argued the cause for Petitioner.

With him on the briefs were Harold P. Coxson and Seth D.

Kaufman.

Marni von Wilpert, Attorney, National Labor Relations

Board, argued the cause for Respondent. With her on the

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brief were Kira Dellinger Vol, Supervisory Attorney, Richard

Griffin, Jr., General Counsel, John H. Ferguson, Associate

General Counsel, and Linda Dreeben, Deputy Associate

General Counsel.

Katherine H. Hansen argued the cause for Intervenor in

support of Respondent. With her on the brief was William S.

Massey.

Before: ROGERS, BROWN, and MILLETT, Circuit Judges.

Opinion for the Court filed by BROWN, Circuit Judge.

BROWN, Circuit Judge: On March 9, 2012, a unit of

employees at 800 River Road Operating Company d/b/a

Woodcrest Healthcare Center (“Woodcrest”) elected 1199

SEIU United Healthcare Workers East Union (“the Union”)

as its exclusive collective-bargaining representative.

Woodcrest filed objections to the election with the National

Labor Relations Board (“the NLRB” or “the Board”). It now

challenges certain conduct that occurred during the ensuing

representation hearing.

Woodcrest asserts three reasons to conclude the Hearing

Officer abused his discretion in the underlying proceeding,

and it also argues the Board abused its discretion when it

affirmed the Hearing Officer’s recommendations to overrule

Woodcrest’s objections. It now asks this Court to set aside

the Board’s order requiring it to bargain with the Union, see

800 River Road Operating Co., 362 N.L.R.B. No. 114 (2015),

and to remand for a new election. The Board and the Union

as Intervenor seek enforcement of the Board’s order.

We deny Woodcrest’s petition and grant the Board’s

cross-application for enforcement.

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I.

Woodcrest argues the Hearing Officer abused his

discretion in three respects. Because Woodcrest seeks to set

aside the Board’s affirmation of the Hearing Officer’s

recommendations, assessing these challenges requires detailed

consideration of the underlying facts and procedural history.

A.

On January 23, 2012, the Union filed a petition to

represent a unit of employees at Woodcrest, a skilled nursing

facility in Milford, New Jersey. The election took place on

March 9, 2012, resulting in a 122–81 vote in favor of

representation. Two additional ballots were challenged.

Woodcrest filed twelve timely objections to the conduct

of the election, see 29 C.F.R. § 102.69(a), alleging various

forms of unlawful conduct had occurred prior to the election.

See 29 U.S.C. § 158(a)(1) (making it unlawful “for an

employer . . . to interfere with, restrain, or coerce employees”

during a representation election). Pursuant to Board

regulations, Woodcrest attached a “written offer of proof” to

its objections that “identif[ied] each witness [it] would call to

testify concerning the issue and summarizing each witness’s

testimony.” 29 C.F.R. § 102.66(c); id. § 102.69(a). Only the

Regional Director reviewed the content of this offer of proof.

See id. § 102.69(a) (“The party filing the objections shall

serve a copy of the objections, including the short statement

of reasons therefor, but not the written offer of proof, on each

of the other parties to the case . . . .” (emphasis added)); id.

(“The regional director will transmit a copy of the objections

to each of the other parties to the proceeding, but shall not

transmit the offer of proof.” (emphasis added)).

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Based on this offer of proof, the Regional Director

determined Objections One and Two should proceed to a

hearing before an NLRB Hearing Officer; the remaining ten

objections were dismissed. See id. § 102.69(c)(1)(ii) (noting

the Regional Director will set objections for hearings if he

“determines that the evidence described in the accompanying

offer of proof could be grounds for setting aside the election if

introduced at a hearing . . . .” (emphasis added)). Both of the

surviving objections pertained to behavior of certain

Woodcrest supervisors during the “critical period”—i.e., the

period of time between the petition for representation and the

election. Objection One alleged three Woodcrest supervisors

(Janet Lewis, Bonita Thornton, and Jane Cordero) “created a

coercive atmosphere and/or interfered with employee free

choice by soliciting Union authorization cards and/or creating

the impression that they had solicited or were soliciting [such]

cards.” Pet’r Br. 8. Objection Two claimed three Woodcrest

supervisors (Israel Vergel de Dios, Cordero, and Thornton)

“created a coercive atmosphere and/or interfered with

employee free choice by promoting the Union and/or creating

the impression that they favored the Union, conveying to

voters that they should support the Union.” Pet’r Br. 9. See

Harborside Healthcare, Inc., 343 N.L.R.B. 906, 909 (2004)

(setting forth the NLRB’s two-prong test for assessing

coercive supervisory conduct during an election).

The hearing took place over the course of three days—

Thursday May 10, Friday May 11, and Monday May 14. On

the morning of the first day, Woodcrest called four witnesses.

First, it solicited testimony from Loesha Chase, who had

previously worked as a companion to two of Woodcrest’s

residents through a third-party company. 1 Woodcrest

1

Chase stopped working for Woodcrest in 2004, but she still visited

Woodcrest regularly in her capacity as a companion to its residents.

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believed Chase “possessed knowledge of its supervisors’

coercive and objectionable conduct and other information

related to the union organizing campaign.” Pet’r Br. 10.

Instead, Chase said she had no knowledge of what occurred at

Union meetings, no knowledge regarding the solicitation of

Union cards, and no knowledge about which supervisors (if

any) were involved in the organizing drive. Second,

Woodcrest called Vergel de Dios, one of the supervisors it

believed had committed objectionable conduct by

“surreptitiously threatening employees with consequences if

they did not support the Union or sign an authorization card.”

Pet’r Br. 10. He denied engaging in this conduct.

Additionally, Vergel de Dios denied exerting influence over

how his employees would testify if subpoenaed about his pre-

election conduct. Instead, he explained he knew his staff

would testify “truthfully”—i.e., that he never had “an

influence with them to vote yes.” J.A. 197–98. Throughout

his testimony, Woodcrest also repeatedly sought permission

to treat Vergel de Dios as a hostile witness, permission the

Hearing Officer did not grant.

Third, Woodcrest called Lewis, another supervisor whom

it believed had committed objectionable conduct by soliciting

Union cards and influencing employees to join the Union.

Lewis said she had not encouraged employees to research the

Union and had no knowledge of objectionable conduct

committed by Thornton. She also denied being approached

by employees as a source of Union authorization cards and

asked Woodcrest’s attorney, “What’s a [U]nion card?” J.A.

225.

Lastly, Woodcrest called Lorri Senk, the administrator

responsible for operational and human resources functions.

Senk testified Susan Langdon—an evening supervisor of

Woodcrest’s registered nurses—had told her about Jane

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Cordero’s involvement in organizing the Union. Langdon

informed Senk that Langdon had overheard Cordero speaking

to an unnamed licensed practical nurse about “getting

employees to attend [a] [U]nion meeting.” J.A. 229–30.

Langdon believed Cordero withheld information about Union

representatives making home visits and phone calls to

Woodcrest employees. Additionally, Senk testified Maria

Sanchez, a Woodcrest employee, “had stated on several

occasions” that various supervisors—including Cordero and

Lewis—were involved in the Union organizing campaign.

J.A. 239. Finally, Senk stated she found a list of “[U]nion

insiders” slipped under her door that included Dave Repoli—

Woodcrest’s former administrator, Clarice Gogia—

Woodcrest’s former Director of Nursing, and Jane Cordero.

J.A. 234.

On the morning of the hearing’s second day, Woodcrest

presented three additional witnesses. First, it called

Cordero—the supervisor about whom Senk had testified.

Cordero denied participating in any untoward Union

authorization card distributions. She also denied engaging in

any conversations about getting employees to attend Union

meetings, which contradicted Senk’s testimony. Second,

Woodcrest called Clarice Gogia—one of the employees

included on the list of “Union insiders” Senk said she had

received. Gogia testified her last day of employment at

Woodcrest was June 15, 2011—six months before the Union

filed its petition for representation. 2 She denied having any

knowledge of any supervisors engaging in objectionable

conduct. Finally, Woodcrest called Katherine Frost,

Woodcrest’s former Director of Admissions and Marketing.

Frost ceased working at Woodcrest in July 2011—

2

In his report, the Hearing Officer stated Gogia ceased employment

in June, 2012.

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approximately six months before the filing of the

representation petition—and testified she entered Woodcrest

only once per month during the three-month critical period.

Nevertheless, Woodcrest believed she was “actively involved

in assisting the Union’s organizing efforts.” Pet’r Br. 10.

Like the others, she denied giving such assistance, instead

testifying she made no observations about a Union drive

during her visits, and she “wouldn’t know any [U]nion

contacts.” J.A. 291; see also J.A. 293 (noting she learned of

the election only after it occurred). She also stated she knew

of no objectionable supervisory conduct.

At this point, a midday recess was taken. During the

recess, the parties discussed three separate groups of

witnesses, each of which is crucial to this case.

First, Woodcrest met ex parte to request the Hearing

Officer issue subpoenas to six of Vergel de Dios’s

approximately twenty-four subordinates regarding his pre-

election conduct. See 29 C.F.R. § 102.66(f) (permitting ex

parte requests). NLRB regulations mandate issuance of such

subpoenas, id., but, instead, the Hearing Officer invited the

Union’s attorney to participate in both an off-the-record and

an on-the-record conversation about the potential witnesses.

Woodcrest explained its need for the subpoenas based on

the allegedly conflicting testimony of Vergel de Dios and

Senk. Whereas Vergel de Dios had testified he did not tell his

subordinates what to say if asked about his pre-election

conduct, Senk testified Vergel de Dios had stated at a meeting

of department heads “he didn’t have anything to worry about

because he had spoken with his people and he knew what they

would say, and they would have his back.” J.A. 301.

Woodcrest interpreted Senk’s testimony as demonstrating

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Vergel de Dios had sought to influence any future testimony

given by his employees.

Woodcrest had not previously interviewed any of the six

witnesses because they had all exercised their Johnnie’s

Poultry rights not to speak to Woodcrest before the hearing.

See 146 N.L.R.B. 770, 775 (1964) (holding that, when

interrogating an employee before a hearing, an employer

“must communicate to the employee the purpose of the

questioning, assure him that no reprisal will take place, and

obtain his participation on a voluntary basis . . . ”).

Nevertheless, Woodcrest argued it had a “reasonable belief”

the six employees would have “factually based firsthand

knowledge” of Vergel de Dios’s pre-election conduct because

they were “members of his department.” J.A. 304. Their

testimony would help Woodcrest establish Vergel de Dios’s

lack of candor regarding whether he attempted to exert

influence over his subordinates’ potential testimony. Further,

Woodcrest stated that, based on Vergel de Dios’s purportedly

dishonest testimony, “[a] conclusion could be drawn about

how that group of employees even voted.” J.A. 301.

Next, the parties discussed subpoenas that had already

been issued to eight Woodcrest employees. Woodcrest

contended these individuals “were actively engaged in the

[Union] campaign [and were] the most likely people to know

whether the supervisors engaged in pro-union conduct.” J.A.

309. All eight employees also had exercised their Johnnie’s

Poultry rights, meaning Woodcrest could not attest to the

content of their testimony. Despite this fact, Woodcrest

represented it would ask “specific, direct questions as to what

knowledge they have, if any, as to were supervisors engaging

in pro-union conduct [sic].” J.A. 308. Throughout the

discussion, the Hearing Officer seemed to presume the

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witnesses definitively had no firsthand knowledge, as

exemplified by the following exchanges:

HEARING OFFICER: Okay. My inclination

is that there is nothing that [the subpoenaed

witness] is going to tell us that is going to—

there’s no direct knowledge of, there’s no facts

that she has that—

MR. MENDELSON: Well, how would any of

us know it. She hasn’t been vetted.

HEARING OFFICER POMIANOWSKI:

Right. . . .

J.A. 309. And again:

HEARING OFFICER: What I’m saying is . . .

[the witness] does not have any factually

based, direct knowledge about the objections,

themselves.

MR. MENDELSON: I can’t agree with that

statement.

J.A. 320.

Lastly, the parties discussed five witnesses with whom

Woodcrest had previously spoken. Consequently, Woodcrest

could affirmatively assert these individuals possessed

knowledge of, among other things, supervisory solicitation of

Union cards and support of the Union.

After the recess concluded, Woodcrest put three more

witnesses on the stand. First, Cartney Ezyk testified. During

the recess, Woodcrest represented to the Hearing Officer that

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Ezyk would testify he was told employees who wanted Union

authorization cards should speak to Lewis, and Ezyk’s

testimony backed up this representation. Second, Woodcrest

called Remi Sajimi, a licensed practical nurse at Woodcrest.

Sajimi had also exercised Johnnie’s Poultry rights, but, during

the recess, Woodcrest represented to the Hearing Officer

Sajimi would testify “Jane Cordero told her . . . that [she]

would make sure certain employees made it to a [U]nion

meeting.” J.A. 308. On the stand, Sajimi denied this.

Finally, Woodcrest called Thornton—the last of the

supervisors whom it believed had engaged in objectionable

conduct. She, like the others, denied any wrongdoing. 3

At the conclusion of the afternoon testimony, the Hearing

Officer denied the requests for the six subpoenas of Vergel de

Dios’s subordinates. He explained the subpoenas were

“exploratory” and emphasized Woodcrest’s inability to make

an offer of proof that the witnesses had “specific knowledge,

firsthand knowledge, factually based on the objections.” J.A.

344–45. For the same reasons, he also explained he would

not permit the eight, already-subpoenaed witnesses to testify.

However, he stated the five “vetted” witnesses with direct

knowledge could testify on Monday.

When Monday morning arrived, however, Woodcrest

refused to continue participating in the Hearing. After

informing the Hearing Officer his Friday-afternoon rulings

had “irrevocably and hopelessly compromised [its] ability to

make [its case],” J.A. 363, it voluntarily left the proceedings.

3

Woodcrest had planned on calling a fourth witness—Ms.

Beziole—but the Hearing Officer would not hear her testimony.

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B.

On June 4, 2012, the Hearing Officer recommended

overruling both of Woodcrest’s election objections. The

report faulted Woodcrest for not presenting witnesses with

“first-hand factual knowledge” of the objections, despite its

“prior representation to the Regional Director.” J.A. 23. It

also noted Woodcrest’s refusal to continue participating in the

Hearing. The Hearing Officer concluded Woodcrest was

“using the hearing to investigate” conduct rather than present

a case. J.A. 24. The report did not mention either the denial

of the six requested subpoenas or the refusal to hear the

testimony from the eight subpoenaed witnesses.

On January 9, 2013, the Board affirmed the Hearing

Officer’s report, concluding that, under the circumstances,

“the hearing officer acted reasonably to halt the employer’s

manifest fishing expedition.” J.A. 70. Though the Board

acknowledged the Hearing Officer committed error by not

issuing the six subpoenas, the error was not prejudicial. See

J.A. 70 (noting “it is reasonable to conclude that even had the

hearing officer issued the requested subpoenas, he would have

refused to permit the witnesses to testify or, if presented with

a petition, would have revoked those subpoenas”). The Board

certified the Union as the exclusive collective-bargaining

representative for the relevant Woodcrest employees on

November 26, 2014. 4

The National Labor Relations Act (“the Act”) does not

permit this Court to directly review the Board’s certification

decision. See 29 U.S.C. § 159(d); see also Boire v.

4

The Board issued its first certification decision on July 10, 2013,

see 800 River Road Operating Co., 359 N.L.R.B. No. 129 (2013),

but that order was set aside after the Supreme Court’s decision in

NLRB v. Noel Canning, 134 S. Ct. 2550 (2014).

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Greyhound Corp., 376 U.S. 473, 476–80 (1964). To obtain

review, an employer must refuse, as Woodcrest did here, to

bargain with the Union. Consequently, on February 7, 2013,

the Union filed unfair labor practice claims under 29 U.S.C.

§ 158(a)(1) and (5). The NLRB’s General Counsel (“GC”)

issued a complaint against Woodcrest on February 19, 2013,

and the Board granted summary judgment in favor of the GC

on June 15, 2015. See 800 River Road Operating Co., 362

N.L.R.B. No. 114 (2015). The unfair labor practice order

gives this Court jurisdiction under 29 U.S.C. § 160(e) and (f).

Woodcrest now asks this Court to set aside the Board’s

June 15 order and to remand with instructions for a new

election rather than a new hearing. It alleges the Hearing

Officer abused his discretion and caused prejudicial error

when he failed to (1) issue the requested subpoenas for six of

Vergel de Dios’s employees; (2) permit eight subpoenaed

witnesses to testify at the Hearing; and (3) grant Woodcrest’s

request to treat Vergel de Dios as a hostile witness.

Woodcrest also contends the Board abused its discretion when

it “inexplicably affirmed [the Hearing Officer] with little

analysis” and overruled Woodcrest’s objections. Pet’r Br. 21,

30. The Board seeks enforcement of its June 15 order, which

compels Woodcrest to provide the Union with certain

requested information, as well as to bargain with the Union.

The Union intervened in support of the Board.

II.

A.

This Court has noted that, “[o]n questions regarding

representation, we accord the Board an especially wide degree

of discretion.” Randell Warehouse of Ariz., Inc. v. NLRB, 252

F.3d 445, 447–48 (D.C. Cir. 2001). We “will overturn a

Board decision to certify an election in only the rarest of

13

circumstances.” N. of Market Senior Servs., Inc. v. NLRB,

204 F.3d 1163, 1167 (D.C. Cir. 2000); see also id. (“A party

seeking to overturn an election bears a heavy burden of

showing that the election is invalid.” (emphasis added));

Randell Warehouse, 252 F.3d at 448 (“[T]he scope of our

review of the Board’s decisions in cases involving

certification is extremely limited.”).

Notwithstanding this extraordinary deference, the

Board’s discretion “has limits.” Int’l Transp. Serv. Inc. v.

NLRB, 449 F.3d 160, 163 (D.C. Cir. 2006). The Court is “not

merely the Board’s enforcement arm,” Randell Warehouse,

252 F.3d at 448, and will not simply “rubberstamp” Board

decisions. Int’l Transp. Serv., 449 F.3d at 163. Instead, we

have the “responsibility to examine carefully both the Board’s

findings and its reasoning . . . .” Randell Warehouse, 252

F.3d at 448. Additionally, this Court sets aside Board orders

that have “no reasonable basis in law, either because the

proper legal standard was not applied or because the Board

applied the correct standard but failed to give the plain

language of the standard its ordinary meaning.” NLRB v.

McClatchy Newspapers, Inc., 964 F.2d 1153, 1156 (D.C. Cir.

1992).

B.

We will “affirm the Board’s order to bargain unless the

Board abused its discretion in overruling [an employer’s]

objections,” Randell Warehouse, 252 F.3d at 448, and the

abuse of discretion was prejudicial, see Ozark Auto. Distribs.,

Inc. v. NLRB, 779 F.3d 576, 582 (D.C. Cir. 2015) (noting the

harmless-error rule exists “[i]n administrative law, as in

federal civil and criminal litigation”). An error is harmless

unless it “affected the outcome of the [underlying]

proceedings.” United States v. Coumaris, 399 F.3d 343, 347

14

(D.C. Cir. 2005); see also Salem Hosp. Corp. v. NLRB, 808

F.3d 59, 68 (D.C. Cir. 2015) (noting no prejudice occurs

where “excluded evidence would not compel or persuade to a

contrary result”). Whether an error is prejudicial “depends on

a number of factors, including the closeness of the case, the

centrality of the issue in question, and the effectiveness of any

steps taken to mitigate the effects of the error.” Huthnance v.

District of Columbia, 722 F.3d 371, 381 (D.C. Cir. 2013).

III.

Woodcrest faults the Hearing Officer for failing to

provide a full and fair hearing of its objections.

A.

First, Woodcrest claims the denial of its request to

subpoena six of Vergel de Dios’s subordinates destroyed a

“central” aspect of its case because the employees “would

have” provided testimony concerning Vergel de Dios’s

“objectionable and coercive conduct.” Pet’r Br. 23. Since

NLRB regulations mandate the issuance of such subpoenas,

29 C.F.R. § 102.66(f), the denial undisputedly constituted

error—a fact the NLRB recognized when it adopted the

Hearing Officer’s recommendations. Thus, to prevail,

Woodcrest need only demonstrate the error was not harmless.

See Salem Hosp., 808 F.3d at 68 (noting no prejudice occurs

where “excluded evidence would not compel or persuade to a

contrary result”).

Unfortunately for Woodcrest, it cannot make this

showing here. The company’s failure to meet this burden has

less to do with the Hearing Officer’s rulings than its lawyer’s

litigation choices.

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Most notably, Woodcrest walked out of the hearing on

Monday morning. This voluntary choice means we cannot

separate the harm Woodcrest suffered (if any) as a result of

the Hearing Officer’s denial from the prejudice caused by

Woodcrest’s decision to truncate the hearing. For instance,

according to Woodcrest, the subpoena denials prevented six

of Vergel de Dios’s employees from providing testimony

establishing Vergel de Dios’s improper influence over his

subordinates. Yet, Woodcrest’s choice not to present its five

remaining witnesses also prevented the Hearing Officer from

hearing from an employee who allegedly would have testified

Vergel de Dios told him to “vote what your heart tells you, as

well as vote what is best for you.” J.A. 316–17. If this

witness testified consistently, he would have directly undercut

Vergel de Dios’s denial. See J.A. 206–07. Perhaps

Woodcrest was prejudiced by the Hearing Officer’s decision

to deny the subpoenas. See Ozark, 779 F.3d at 585 (noting

the Court’s willingness to “assum[e] that the documents, if

disclosed, would have supported the company’s claim” when

assessing the prejudicial effect of a hearing officer’s decision

to quash subpoenas). But perhaps Woodcrest’s own decision

to short-circuit the hearing and forgo the evidence it might

have provided had a greater impact. Woodcrest cannot

simply create (or contribute to the creation of) prejudice and

then plead reversible error. It must demonstrate the NLRB’s

error was dispositive. See Salem Hosp., 808 F.3d at 68.

Additionally, Woodcrest has not actually shown the

denials “excluded critical evidence.” Pet’r Br. 21. In its

brief, Woodcrest claims the six employees were “central” to

its case because they “would have testified as to Vergel de

Dios’ objectionable and coercive conduct.” Pet’r Br. 23

(emphasis added). Woodcrest also argues the centrality of the

testimony would have prevented the Hearing Officer from

revoking the subpoenas once given. See 29 C.F.R.

16

§ 102.66(f) (permitting revocations “if, in [the hearing

officer’s] opinion, the evidence whose production is required

does not relate to any matter under investigation or in

question in the proceedings”). But Woodcrest does not back

up these claims with any concrete evidence. When arguing

before the Hearing Officer and this Court, all Woodcrest

offered to support its “reasonable belief” that these witnesses

had relevant knowledge was the fact that they were “members

of [Vergel de Dios’s] department.” See, e.g., J.A. 304; Oral

Arg. Tr. 10–11. It could not specify why these six, as

compared to the other approximately eighteen employees

supervised by Vergel de Dios, had relevant knowledge. Oral

Arg. Tr. 42–43. And, when pressed at oral argument to

justify the need for the testimony, Woodcrest’s counsel

admitted it did not “know[] at the end of the day” what they

would say. Oral Arg. Tr. 10.

By contrast, it appears Woodcrest voluntarily chose not

to call witnesses whom it had expressly identified as having

knowledge about Vergel de Dios’s behavior. When

Woodcrest first filed its objections, it submitted to the

Regional Director a list of witnesses it planned to call, along

with a description of what they would say in their testimony.

See 29 C.F.R. § 102.69(a). According to Board case law, this

offer of proof needed to “specifically identify[] witnesses who

would provide direct rather than hearsay testimony to support

its objections, specifying which witnesses would address

which objections.” Transcare N.Y., Inc., 355 N.L.R.B. 326,

326 (2010); see also City Wide Insulation of Madison, Inc.,

338 N.L.R.B. 793, 795 (2003) (noting the objecting party

must send this evidence to the Regional Office). This offer of

proof served as the basis for the Regional Director’s decision

to set the two objections for a hearing. See 29 C.F.R.

§ 102.69(c)(1)(ii) (noting the Regional Director will set

objections for hearings if he “determines that the evidence

17

described in the accompanying offer of proof could be

grounds for setting aside the election if introduced at a

hearing . . . .” (emphasis added)). In his report recommending

Woodcrest’s first two objections proceed to a hearing, the

Regional Director explicitly stated Woodcrest’s offer of proof

“provided the names of several supervisory and bargaining

unit employees whom it contends will testify that

Environmental Director Israel Vergel de Dios . . . actively

supported the Union.” J.A. 6. In support, Woodcrest

“assert[ed] that the witnesses will testify that Vergel de Dios

expressed his opinion to unit employees that they were

underpaid and unappreciated and, thus, needed the protection

of the Union.” Ibid. Yet, at oral argument, Woodcrest’s

counsel stated neither the six subpoenaed employees nor the

five employees it refused to call on Monday were on the list

submitted to the Regional Director. Oral Arg. Recording

49:20; Oral Arg. Tr. 49. Assuming Woodcrest provided

truthful submissions to the Regional Director, it cannot now

demonstrate to this Court that the Hearing Officer’s refusal to

issue the subpoenas served as the source of prejudice, as

compared to Woodcrest’s own decision not to call the

employees it asserted had already provided it with direct

knowledge of Vergel de Dios’s coercive conduct.

All told, Woodcrest’s voluntary decision to leave the

Hearing, its failure to demonstrate the centrality of the

witnesses to its case, and the potential for the Hearing Officer

to exercise permissible discretion to revoke the subpoenas

means Woodcrest cannot prove the denial of the six

subpoenas “irreparably prejudiced” its case. Pet’r Br. 38. It

thus has not demonstrated reversible error occurred.

In addition to its prejudice arguments, Woodcrest points

to our decision in ManorCare, LLC v. NLRB, 823 F.3d 81, 87

(D.C. Cir. 2016), and urges us to find, as we did there, that the

18

Board abused its discretion because its analysis was too

“cursor[y]” or “truncated.” But that decision has no bearing

on the instant case. In ManorCare, the employer presented

direct testimony from multiple employees that two other

employees had threatened to “punch[] people in the face,”

“beat[] people up,” and “slash [people’s] tires,” among other

things. Id. at 83–84. This testimony was also corroborated by

“several other managers and supervisors.” Id. at 84. The

Hearing Officer found these threats disturbed the laboratory

conditions necessary for a fair and free election, id., but the

Board reversed, finding the threatening statements were

jocular in nature, id. at 85. In doing so, the Board disregarded

its own precedent, which laid out six factors for assessing a

threat’s seriousness and its likelihood of causing voter

intimidation. Id. at 85–87. Instead, “the Board cursorily

acknowledged its own precedent and then dismissed the effect

of the threatening statements.” Id. at 87. Within that context,

we found the Board’s discussion “too brief to demonstrate

how the facts of [that] case align[ed] with the Board’s

precedent.” Id.

Here, by contrast, we contextualize the Board’s

discussion within a hearing where ten witnesses provided

virtually no testimony of objectionable conduct, a fact which

the Hearing Officer discussed at length in his report. See J.A.

25–30 (summarizing each of the ten witness’s testimony and

highlighting how each failed to corroborate Woodcrest’s

representations); see also J.A. 70 (Board adoption of Hearing

Officer’s recommendations) (referencing this same lack of

corroboration to support its conclusion that Woodcrest was

not prejudiced by the denial of the subpoenas). Further, we

place it within a hearing where the employer chose to

voluntarily walk out rather than proffer any additional

evidence to strengthen its case—another fact acknowledged

by the Hearing Officer. See J.A. 23. Within this framework,

19

we cannot find the NLRB abused its discretion when it

affirmed the Hearing Officer’s recommendations, concluded

Woodcrest was engaging in a “fishing expedition,” J.A. 70,

and dismissed the error as harmless. See Huthnance, 722

F.3d at 381 (noting courts consider “the closeness of the case”

when assessing the prejudicial effect of an error).

B.

Woodcrest next contends the Hearing Officer abused his

discretion when he refused to permit eight, already-

subpoenaed witnesses to testify. Woodcrest argues the

Hearing Officer imposed a “novel requirement” by insisting

Woodcrest confine its case only to witnesses it had previously

“vetted.” Pet’r Br. 47. According to Woodcrest, this

imposition is especially inappropriate in the context of such

investigation hearings, which provide no pre-hearing

discovery mechanisms and which afford subpoenaed

witnesses the right not to speak to the employer beforehand.

Johnnie’s Poultry Co., 146 N.L.R.B. at 775. Since all eight

witnesses had exercised these rights, Woodcrest asserts the

“vetting” requirement placed it in an impossible position. 5

As a general matter, Woodcrest identifies a valid

potential concern. The Hearing Officer did repeatedly inform

Woodcrest he wanted to hear from witnesses with “firsthand”

or “direct” knowledge. See, e.g., J.A. 304, 309, 320. Under

NLRB regulations, the employer has the burden of

demonstrating objectionable conduct. Harborside

Healthcare, 343 N.L.R.B. at 910 (noting the objecting party

5

Just how impossible is difficult to assess. Woodcrest represented

to the Board that it interviewed “between 100 and 150 employees”

over four days. J.A. 76. But the record does not reveal how many

of these employees spoke at length to Woodcrest, as opposed to

summarily exercising their Johnnie’s Poultry rights.

20

has the burden “to establish, not just that objectionable acts

occurred, but also that they interfered with the employees’

exercise of free choice to such an extent that they materially

affected the results of the election”); Amalgamated Clothing

Workers of Am. v. NLRB, 424 F.2d 818, 827 (D.C. Cir. 1970)

(noting a party “must produce specific evidence” of

inappropriate conduct). And, it must meet this burden,

notwithstanding the lack of discovery mechanisms, the

existence of Johnnie’s Poultry rights, and the bar against

using a representation hearing as a “fishing expedition.”

Cauthorne Trucking, 256 N.L.R.B. 720, 720 (1981).

Furthermore, particularly in cases like the instant one—where

the supervisors cause the allegedly objectionable conduct—

the employer may find it difficult to find either a supervisor

eager to confess or an employee willing to implicate a

supervisor. In that case, limiting witnesses solely to those

with “direct knowledge” may constitute an abuse of discretion

that hamstrings the employer, leaving no feasible means for it

to meet the evidentiary burden.

But that is not the case here. After two days of

testimony, and in the absence of any proffer outlining the

anticipated testimony’s relevance, the Hearing Officer did not

abuse his discretion by refusing to hear eight additional

witnesses.

Given the specific and direct testimony prefigured by

Woodcrest’s submissions to the Regional Director, the initial

focus on general witnesses is puzzling. Despite its offer of

proof, nine out of Woodcrest’s ten witnesses provided no

direct testimony of objectionable conduct and, in fact,

provided testimony that directly contradicted Woodcrest’s

21

representations. 6 Though the Hearing Officer never saw the

offer of proof, he knew of its existence and what it must

contain. See J.A. 23 (noting, in his report, Woodcrest did not

provide “any testimony of first-hand factual knowledge of

facts surrounding the alleged objectionable conduct[,] . . .

notwithstanding counsel’s prior representation to the Regional

Director that it would present direct factual testimony from

witnesses to demonstrate that Petitioner engaged in the

alleged objectionable conduct”). After two days, it was

reasonable for the Hearing Officer to conclude he needed a

more substantial proffer to justify allowing the parade of

witnesses to continue.

Furthermore, though the Hearing Officer used words like

“direct” and “firsthand,” J.A. 309, 320, the record read as a

whole reveals the Hearing Officer’s willingness to allow

witnesses to testify, so long as Woodcrest could provide any

basis—even circumstantial evidence—for that testimony. Or,

to put it another way, we read the Hearing Officer not as

asking Woodcrest to tell him what the witnesses would say,

but to tell him how it knew what the witnesses likely would

say.

The Hearing Officer’s differing treatment of two of

Woodcrest’s potential witnesses—Remi Sajimi and Ms.

Beziole—illustrates this point. Sajimi had exercised her

Johnnie’s Poultry rights, and Woodcrest accordingly could

not vet her. Woodcrest represented to the Hearing Officer

that an employee with “direct knowledge” had told Woodcrest

she had “overheard . . . Cordero telling Remi that [Cordero]

would make sure certain employees attended a [U]nion

meeting.” J.A. 307. Despite this extremely attenuated,

6

The tenth witness provided hearsay testimony about Langdon—a

Woodcrest supervisor—and Sanchez—a Woodcrest employee;

Woodcrest did not follow up by calling either party to testify.

22

hearsay evidence, the Hearing Officer stated Sajimi had

“direct knowledge,” J.A. 308, and she was permitted to

testify. In contrast, the Hearing Officer did not permit the

testimony of Ms. Beziole. Unlike Sajimi, Woodcrest believed

Ms. Beziole had relevant knowledge only because she was a

“[U]nion supporter.” J.A. 309. Woodcrest used this same

“Union supporter” assertion to justify its need for the eight

subpoenas. The Hearing Officer refused to hear from all nine

witnesses on the same grounds: Woodcrest could not make

any proffer to back up its representations about what the

employees would say once called. The decision to deny the

eight subpoenas also came after Remi Sajimi testified, where

she contradicted Woodcrest’s representation and instead

corroborated Cordero’s version of events.

Under these circumstances, we cannot say the Hearing

Officer abused his discretion by requiring Woodcrest to

provide even the most basic proffer in support of its request

for additional witnesses after two full days of testimony.

Moreover, even had we found the Hearing Officer abused his

discretion, Woodcrest’s voluntary decision to walk out of the

hearing again prevents it from demonstrating reversible error.

See supra Part III.A. Thus, under either the abuse-of-

discretion or reversible-error prongs of the analysis,

Woodcrest’s argument fails.

C.

Finally, we easily dismiss Woodcrest’s contention that

the Hearing Officer abused his discretion by refusing to allow

Woodcrest to treat Vergel de Dios as a hostile witness.

NLRB regulations expressly state “rules of evidence

prevailing in courts . . . shall not be controlling” in

proceedings challenging election results. 29 C.F.R.

§ 102.66(a). Consequently, we cannot say the Hearing

23

Officer abused his discretion by opting not to apply a

nonbinding rule, especially since the Hearing Officer did

permit Woodcrest to ask leading questions and to continue

lines of questioning to which the Union objected. See, e.g.,

J.A. 184–85 (allowing leading questions); J.A. 185

(overruling objection because the Hearing Officer “want[ed]

to see where this is going”); J.A. 196 (overruling relevance

objection because he “still want[ed] to hear it”); J.A. 206–07

(noting he “wanted to hear the answer” to the leading question

“did you . . . ever have the discussion about words to the

effect of voting what your heart tells you” or “vote what is

best for you”); J.A. 208–09. As a result, we also cannot say

the Board abused its discretion when it affirmed the Hearing

Officer’s recommendations, particularly given the “especially

wide degree of discretion” this Court affords the Board “[o]n

questions regarding representation.” Randell Warehouse, 252

F.3d at 447–48.

IV.

Because we hold the Board did not abuse its discretion,

we deny Woodcrest’s request to set aside the Board’s June 15

order and to remand with direction for a new election. We

grant the NLRB’s cross-application for enforcement of the

same order.

So ordered.