800 River Rd. Operating Co. v. Nat'l Labor Relations Bd.

• Decision Date: 24 January 2017
• Docket Number: C/w 15-1281,No. 15-1204,15-1204
• Citation: 846 F.3d 378
• Parties: 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
• Court: U.S. Court of Appeals — District of Columbia Circuit

846 F.3d 378

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

No. 15-1204

C/w 15-1281

United States Court of Appeals, District of Columbia Circuit.

Argued November 15, 2016

Decided January 24, 2017

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 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.

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.

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)).

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 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 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—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...