Salem Hospital Corp. v. National Labor Relations Board
420 U.S. App. D.C. 287
| D.C. Cir. | 2015Background
- HPAE filed a representation petition to represent Salem Hospital’s registered nurses; the proposed unit included charge nurses (CNs) whom Salem asserted were supervisors and thus ineligible for representation under the NLRA.
- A representation hearing before a Board hearing officer (HO) ran June 2–9, 2010; Salem requested subpoenas for additional witnesses, the HO said subpoenas would be prepared but then closed the record over Salem’s objection.
- Concurrently, Salem filed a ULP charge alleging supervisory taint based on CNs’ involvement in the petition; the Regional Director (RD) investigated and declined to issue a complaint, and the General Counsel (GC) denied Salem’s appeal of that refusal.
- The RD found most CNs non‑supervisory and directed an election; the union won. Salem filed numerous post‑election objections (many raising the same supervisory‑status/taint claims) and sought further review; the Board granted the union’s belated special appeal, reversed the RD’s order setting a hearing on the supervisory objections, and ultimately certified the union.
- Salem refused to bargain; the GC filed a ULP complaint for refusal to bargain. The Board granted summary judgment for the GC, holding Salem’s defenses either were or could have been litigated earlier; Salem petitioned for review in this Court.
Issues
| Issue | Salem's Argument | NLRB's Argument | Held |
|---|---|---|---|
| Whether HO abused discretion by prematurely closing the representation‑hearing record and denying subpoenas | HO closed record after promising subpoenas, depriving Salem of non‑cumulative evidence essential to proving CN supervisory status and taint | Salem failed to proffer what additional non‑cumulative, material evidence the witnesses would offer; RD’s findings rest on substantial evidence | No abuse of discretion; Salem failed to show prejudice from record closure (excluded evidence was not shown to be non‑cumulative or outcome‑dispositive) |
| Whether the GC/Board abused discretion by denying transfer despite alleged ex parte communications between HO and CNs | Alleged ex parte contacts required transfer to a different region to ensure a fair proceeding | Allegations were conclusory; GC investigated and found no improper contacts; Salem had opportunities to present evidence | No abuse of discretion; Salem did not show prejudice or that decisionmaking was tainted |
| Legality and handling of the Union’s belated “special appeal” to the Board of the RD’s order setting a hearing on Objections 1–16 | Special appeal was procedurally improper and Salem was denied an opportunity to respond, prejudicing its right to litigate objections before an ALJ | Board had discretion under its rules to entertain the special appeal; objections raised issues already decided and relitigation was improper | Board misapplied procedure but Salem was not prejudiced: issues were previously litigated and unlikely to change outcome; Board’s later reconsideration cured any procedural unfairness |
| Whether Salem could relitigate supervisory status/taint as a defense in the ULP proceeding (no‑relitigation rule) | Salem should be allowed to present supervisory‑taint defenses in ULP proceeding (Sub‑Zero exception or newly discovered evidence/other special circumstances) | Board’s no‑relitigation rule applies; Salem already litigated and lost supervisory‑status and taint issues; no new evidence or legal change justifying relitigation | No abuse of discretion in barring relitigation; substantial evidence supports CNs’ non‑supervisory status and Salem showed no grounds (new evidence/legal change) to reopen the issue |
Key Cases Cited
- SSC Mystic Operating Co. v. NLRB, 801 F.3d 302 (D.C. Cir. 2015) (supervisory/taint principles and requirement of a coercion‑free representation election)
- Ozark Auto. Distribs., Inc. v. NLRB, 779 F.3d 576 (D.C. Cir. 2015) (prejudice from exclusion of noncumulative, critical subpoenaed evidence at post‑election hearing)
- Reno Hilton Resorts v. NLRB, 196 F.3d 1275 (D.C. Cir. 1999) (no abuse where excluded evidence would not have changed outcome)
- Cleveland Constr., Inc. v. NLRB, 44 F.3d 1010 (D.C. Cir. 1995) (standard for reviewing unit certification: arbitrary or without substantial evidence)
- Desert Hosp. v. NLRB, 91 F.3d 187 (D.C. Cir. 1996) (party must show prejudice from procedural errors to obtain relief)
- Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (Supreme Court) (employer cannot refuse to bargain merely to obtain judicial review of a Board certification)
- Pace Univ. v. NLRB, 514 F.3d 19 (D.C. Cir. 2008) (upholding Board rule precluding relitigation of representation issues in later ULP proceedings)
- Joseph T. Ryerson & Sons, Inc. v. NLRB, 216 F.3d 1146 (D.C. Cir. 2000) (relitigation only when newly discovered evidence or special circumstances exist)
- Alois Box Co. v. NLRB, 216 F.3d 69 (D.C. Cir. 2000) (change in legal standard can justify relitigation)
- Prof’l Air Traffic Controllers Org. v. FLRA, 685 F.2d 547 (D.C. Cir. 1982) (ex parte communications do not void agency decisions absent a showing of irrevocable taint)