NLRB right to certify election, dismiss employer’s beefs about hearing procedure

By Joy Waltemath

By Lisa Milam-Perez, J.D.

Walking out of a representation hearing due to displeasure with an NLRB hearing officer’s procedural rulings proved costly to a nursing home, as it undermined the employer’s ability to make the required showing that the hearing officer’s adverse calls were not harmless error, the D.C. Circuit noted, finding the Board did not abuse its discretion in affirming the hearing officer’s recommendations to overrule the employer’s election objections and certify the union. As the Board saw it, the hearing officer had properly put a halt to the employer’s “manifest fishing expedition” when he denied the employer’s bid to subpoena the subordinates of a supervisor whom it suspected of pro-union electioneering—even though his refusal “undeniably” constituted error—and refused to hear testimony from eight already-subpoenaed witnesses (800 River Road Operating Co, LLC dba Woodcrest Health Care Center v. NLRB, January 24, 2017, Brown, J.).

After the SEIU won a representation election among the nursing home’s employees in a 122-81 vote, the employer filed 12 election objections. The employer provided the written offer of proof to its objections, identified the witnesses that it would call to testify, and summarized the testimony. An NLRB Regional Director determined that two of the objections should proceed to a hearing: allegations of interference and coercion by pro-union supervisors in the “critical period” leading up to the election.

Subpoenaing subordinates. After one of the suspected supervisors testified that he engaged in no objectionable conduct, having made no statements to his subordinates regarding the unionization effort, the nursing home asked the hearing officer to issue subpoenas to six of the supervisor’s 24 subordinates. The employer explained why it needed the subpoenas: Another witness had testified that, at a meeting of department heads, this supervisor had said that “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.” The employer took this as an indication that the supervisor sought to influence the potential testimony of his subordinates, despite his insistence to the contrary. The nursing home hadn’t interviewed the witnesses, who exercised their Johnnie’s Poultry right not to speak to the employer before the hearing, but the employer said it had a “reasonable belief” they would have firsthand knowledge of their supervisor’s misconduct.

Request denied. The hearing officer denied the request. He concluded that the subpoenas were “exploratory” and found that the employer was unable to make an offer of proof that the witnesses did indeed have firsthand knowledge. For the same reason, the hearing officer refused to allow eight witnesses to testify who had already been subpoenaed. The hearing officer said that he would allow five already “vetted” witnesses to testify when the hearing resumed after the weekend, though. But when Monday morning came, the employer refused to participate, saying the hearing officer’s rulings had “irrevocably and hopelessly” compromised its ability to make its case.

Objections overruled. The hearing officer recommended overruling the objections in a report that faulted the employer for not presenting witnesses to support its objections (despite its stated intentions in its offer of proof) and also noted the employer’s voluntary departure from the hearing. (The hearing officer made no mention of the subpoena requests he rejected, though, or of his refusal to let the eight subpoenaed witnesses testify). In his view, the employer was “using the hearing to investigate” the supervisor’s conduct, not to present its case.

The Board affirmed the hearing officer’s report, finding that under the circumstances, he acted reasonably in putting an end to the employer’s “manifest fishing expedition.” But in its petition for review, the employer contended the hearing officer abused his discretion and committed prejudicial error by denying the subpoena requests, by refusing to let the already subpoenaed witnesses testify, and by rejecting its plea to treat the supervisor as a hostile witness (the appeals court dismissed the third claim out of hand, noting that courtroom rules of evidence are not binding in Board hearings and that the employer had been allowed to ask its supervisor leading questions anyhow). The employer also claimed the Board abused its discretion in affirming the hearing officer’s recommendations.

No harm shown. Board regulations mandate the issuance of such subpoenas, so the hearing officer’s refusal to grant the subpoena requests was clear error (which even the Board had acknowledged). But the employer couldn’t establish that the error was not harmless—primarily because it had bowed out of the hearing. Because of this voluntary litigation choice, “we cannot separate the harm [the nursing home] suffered (if any) as a result of the Hearing Officer’s denial from the prejudice caused by [the employer’s] decision to truncate the hearing.”

Employer chose not to present remaining witnesses. According to the employer, the denial of its request to subpoena the supervisor’s six subordinates destroyed a “central” aspect of its case, since the employees would have testified as to the supervisor’s improper conduct. But it wasn’t clear the employees would have testified as promised. The employer offered only its “reasonable belief” that the witnesses had relevant knowledge merely because they worked in the supervisor’s department. But why these six individuals—and not the other 18 of his subordinates?—the court wondered. Also, the employer’s attorney conceded that he wasn’t quite certain “at the end of the day” what their testimony might entail. At any rate, the employer chose not to present five remaining witnesses, one of whom allegedly would have testified that the supervisor told them to “vote what your heart tells you, as well as vote what is best for you.” This witness would have directly undercut the supervisor’s denial.

The employer also deliberately chose not to call other witnesses whom it had expressly identified in its witness list as having direct knowledge of the supervisor’s objectionable conduct. (Indeed, it was this offer of proof that was the basis for the Regional Director’s decision to set the objections for a hearing in the first place.) At oral argument, the employer’s attorney said that neither the six subpoenaed employees nor the five employees it refused to call on Monday were on the list submitted to the Regional Director. Assuming its submissions to the Regional Director were truthful, the employer “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 [the employer’s] own decision not to call the employees it asserted had already provided it with direct knowledge of [the supervisor’s] coercive conduct.”

Voluntary decision to leave. Perhaps, then, the employer was prejudiced by the denial of the subpoenas; but perhaps its “own decision to short-circuit the hearing and forgo the evidence it might have provided had a greater impact,” the appeals court said. Given its voluntary decision to leave the hearing, the employer can’t show it was “irreparably prejudiced” by the hearing officer’s refusal to grant the subpoenas. It has not demonstrated reversible error occurred.

Unfair “vetting” requirement? As for the eight already-subpoenaed employees whom the hearing officer refused to let testify, the employer insisted that as active union proponents, these employees would know whether the supervisor had engaged in prounion conduct. But the appeals court noted that the employer could not attest to the specific content of their testimony, since they had exercised their right not to speak to the employer in advance of the hearing. The employer complained that the hearing officer had presumed the witnesses had no firsthand knowledge and repeatedly insisted that he only wanted to hear testimony from witnesses with “direct” or “firsthand” knowledge—essentially imposing a “novel requirement” that the employer confine its case to witnesses whom it already had “vetted.”

The employer had a valid concern here, the appeals court acknowledged—particularly in the context of Board proceedings that allow for no pre-hearing discovery, bar against using a representation hearing as a “fishing expedition,” and allow subpoenaed witnesses the Johnnie’s Poultry right not to speak to the employer beforehand. (In this case, the employer was in a jam given that all eight witnesses had exercised this right, making the “vetting” requirement that much more burdensome.) Limiting witnesses solely to those with “direct knowledge” is particularly burdensome when the allegations include objectionable conduct by a supervisor, since “the employer may find it difficult to find either a supervisor eager to confess or an employee willing to implicate a supervisor,” the court added. It could leave employers hamstrung, with no feasible way of meeting its evidentiary burden.

Not here. But that’s not what happened here. Despite the employer’s offer of proof, after two days of hearings, nine out of ten of its witnesses provided no direct testimony regarding objectionable supervisory conduct (and, in fact, provided testimony that directly contradicted the allegation). Under these circumstances, the hearing officer did not abuse its discretion in refusing to allow “the parade of witnesses” to proceed without the employer offering “even the most basic proffer” to justify its request to present eight additional witnesses. Even if the hearing officer abused his discretion, the employer blew its chance to show reversible error by walking out of the hearing.

For the same reason, the employer could not rely on the D.C. Circuit’s 2016 decision in ManorCare, LLC v. NLRB to assert that the Board’s analysis was too “cursory” or “truncated.” The Board’s analysis was in the context of a hearing “where ten witnesses provided virtually no testimony of objectionable conduct” and “where the employer chose to voluntarily walk out rather than proffer any additional evidence to strengthen its case.” Accordingly, the appeals court denied’ the employer’s petition for review.

Source:: NLRB right to certify election, dismiss employer’s beefs about hearing procedure