Salem Hosp. Corp. v. Nat'l Labor Relations Bd.

• Decision Date: 15 December 2015
• Docket Number: Nos. 11–1466,12–1009.,s. 11–1466
• Citation: 808 F.3d 59
• Parties: 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

808 F.3d 59

SALEM HOSPITAL CORPORATION, Doing Business as Memorial Hospital of Salem County, Petitioner

v. NATIONAL LABOR RELATIONS BOARD, RespondentHealth Professionals and Allied Employees, AFT/AFL–CIO, Intervenor.

Nos. 11–1466

12–1009.

United States Court of Appeals, District of Columbia Circuit.

Dec. 15, 2015.

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, 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 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), 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).

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 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 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 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...