Indiana Hosp., Inc. v. N.L.R.B., AFL-CIO
| Decision Date | 26 November 1993 |
| Docket Number | AFL-CIO,93-3096,Nos. 93-3070,s. 93-3070 |
| Citation | 10 F.3d 151 |
| Parties | 144 L.R.R.M. (BNA) 2809, 62 USLW 2404, 126 Lab.Cas. P 10,926 INDIANA HOSPITAL, INC., A Wholly-Owned Subsidiary of Indiana Health Care Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Union of Operating Engineers, Local Union of 95-95A,("the Union"), Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INDIANA HOSPITAL, INC., A Wholly-Owned Subsidiary of Indiana Health Care Corporation, Respondent. |
| Court | U.S. Court of Appeals — Third Circuit |
James B. Brown (argued), Joseph M. McDermott, Jeffrey A. Van Doren, Cohen & Grigsby, Pittsburgh, PA, for petitioner/cross respondent.
Paul J. Spielberg (argued), Aileen A. Armstrong, William A. Baudler, N.L.R.B., Washington, DC, for respondent/cross petitioner.
Michael R. Fanning (argued), Helen L. Morgan, Washington, DC, for intervenor/respondent.
Before: SCIRICA, ALITO, and ALDISERT, Circuit Judges.
The Indiana Hospital, Inc. has petitioned for review of an order of the National Labor Relations Board, and the Board has cross-petitioned for enforcement of its order. The Board held that the hospital had committed an unfair labor practice by refusing to bargain with the union that had been certified, after an election, as the bargaining representative for the hospital's skilled maintenance workers. The hospital's refusal to bargain was based on its belief that the election had been tainted by misconduct on the part of the Board's agents. To substantiate this charge the hospital subpoenaed Board officers to provide testimony and documents, but the subpoenas were revoked by the hearing officer, and the Board upheld the revocation on the ground that the hospital had not been prejudiced. Because we cannot accept the Board's conclusion that the hospital was not prejudiced, we grant the hospital's petition for review and deny the Board's cross-petition for enforcement.
In May 1991, the International Union of Operating Engineers, Local 95-95A, AFL-CIO, petitioned to represent a bargaining unit consisting of Indiana Hospital's skilled maintenance employees. Over the hospital's objections, the Board's Regional Director directed that an election be conducted, and the Board itself subsequently denied the hospital's appeal. In September 1991, the election was held, and the union won by a vote of 17 to 3.
The hospital filed numerous objections, arguing, among other things, that agents of the Board's Regional Office for Region Six had engaged in misconduct during the campaign. Specifically, the hospital alleged:
On or about July 11, 1991, and continuing thereafter, agents of the Pittsburgh Regional Office of the NLRB incorrectly advised eligible voters that unless they were represented by a union, they would not fall within the protection of the National Labor Relations Act ... and that the NLRB thus could not assist them with any discriminatory complaints.
On or about July 11, 1991, and continuing thereafter, agents of the NLRB's Pittsburgh Regional Office incorrectly advised eligible voters that even if the NLRB were able to handle their complaints, the employees would have to retain private counsel, at their own expense, to process their cases.
The Regional Director recommended that all of the hospital's objections be overruled without a hearing and that the union be certified as the bargaining representative for the skilled maintenance employees. With respect to the hospital's claim that Board agents had misled employees, the Regional Director stated that the hospital had provided the names of employees who had allegedly spoken with the Board agents, that several employees had been interviewed, and that none had corroborated the hospital's charges. Id. at 55a-56a. The hospital appealed, and the Board, while rejecting most of the hospital's objections, concluded that the hospital had raised "substantial issues" concerning the conduct of the Board's agents and that these issues could "best be resolved after a hearing." Id. at 84a. The Board therefore remanded the case to the Regional Director for a hearing on those issues.
In preparation for that hearing, the hospital served a subpoena on the Board's custodian of records for Region Six. This subpoena required the custodian to appear at the hearing and produce the following documents:
1. All Information Officer Memoranda prepared by NLRB Region 6 staff members that reflect telephone conversations or visits with employees of Indiana Hospital for the period May 24, 1991 through September 19, 1991.
2. All memoranda or instructions issued to NLRB Region 6 staff members concerning Information Officer duties for the period May 24, 1991 through September 19, 1991.
Id. at 315a. Information Officers are Board representatives who are assigned the duty of handling telephone calls and visits from the public. Under Board procedures, information officers are required to complete memoranda containing, among other things, the name and employer of each person who makes an inquiry, the nature of the inquiry, and the advice given. NLRB Casehandling Manual Secs. 10012.2, .3, .5.
The hospital also served a subpoena upon the Board's Regional Director for Region 6 requiring his appearance at the hearing. The hospital explains that it sought the testimony of the Regional Director in order "to determine what, if any, instructions he had issued to his agents as a result of Indiana Hospital's complaint that employees were receiving grossly inaccurate information from the Region Six Information Officers." Indiana Hospital Br. at 12. Shortly after serving these subpoenas, the hospital, as required by 29 C.F.R. Sec. 102.118, sent a written request for compliance with the subpoenas to the Board's General Counsel, but the General Counsel never responded.
On the same day when the hospital sent its request to the General Counsel, counsel for the Regional Director filed a petition to revoke the hospital's subpoenas based on the hospital's failure to obtain the General Counsel's consent and on a limited evidentiary privilege applicable to the Board's informal investigation and pretrial preparation process. App. at 336-38a. At the beginning of the hearing on the hospital's objections to the election, the hearing officer granted the petition to revoke. The hearing officer explained that he had done so because "no written consent from the General Counsel ha[d] been received allowing this testimony" and because "the objecting party has responsib[ility] to support its objection with testimony that was presumably available at the time that the objections were filed and going down that road rather than any other road." Id. at 99a.
Denied the documents and testimony sought by its subpoenas, the hospital called several of its management officials to testify concerning statements made in their presence by members of the bargaining unit regarding the advice that they had received from the Board's information officers. Dominic Paccapaniccia, the hospital's vice president of personnel services, testified that employees within the unit had been concerned that they would be terminated because of their concerted activities if the union did not win the election. To allay these fears, Paccapaniccia testified, the hospital had distributed a letter advising the employees that the National Labor Relations Act protected employees from discrimination based on union and certain concerted activities. This letter recommended that the employees telephone the Board's Regional Office in Pittsburgh to inquire about the protection afforded by the Act. Paccapaniccia stated that an employee, Dan Provias, told him on the day after the letter was distributed that he had been informed by the Board's regional office that the employees would have no protection unless they were members of a union. Paccapaniccia also testified that he heard another employee, Will Fetterman, say that a Board agent had given him similar advice.
Another hospital management official, Daniel Severin, also testified that he had heard Fetterman make a similar statement and that several other employees who were present at the time immediately expressed agreement with Fetterman. In addition, Severin stated that another employee, Allen Gray, had said that he had been told by a Board agent that the Board could not help him if he was not a union member and that he would need a privately retained attorney. A third hospital management official, Norman Thiel, corroborated much of Paccapaniccia's and Severin's testimony regarding these matters.
The hospital did not call as witnesses the employees to whom the Board's information officers had allegedly made the false or misleading statements. The hospital states that it did not do so because it knew that these employees had been interviewed by Board agents and had provided statements that...
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