Abandoning Hearing Dooms Employer’s Objections to Union Election

By Bryant S. Banes Mar 9, 2017

An employer who left an administrative hearing with the National Labor Relations Board (NLRB) could not contest the decision of the board hearing officer, the U.S. Circuit Court of Appeals for the District of Columbia ruled.

In March 2012, a unit of employees at Woodcrest Healthcare Center in New Milford, N.J., elected 1199 SEIU United Healthcare Workers East Union as its exclusive collective bargaining representative.

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Woodcrest filed 12 objections to the election with the board and attached a "written offer of proof" identifying each witness it would call to testify and summarizing their testimony. The board's regional director determined that two of the objections should proceed to a hearing.

The hearing took place over three days. During the second day's midday recess, Woodcrest requested that the hearing officer issue subpoenas to six Woodcrest employees who worked under a supervisor who was believed to have engaged in unlawful conduct. Woodcrest contended that they were likely to know whether the supervisor engaged in unlawful conduct. Woodcrest also discussed five vetted witnesses it intended to call to the stand. The hearing officer denied Woodcrest's requests for the six subpoenas and did not permit eight other subpoenaed witnesses to testify.

On the third day, Woodcrest walked out of the hearing without calling any witnesses and informed the hearing officer that his rulings compromised its ability to make its case. Woodcrest had yet to call any of the witnesses, including the five vetted witnesses. The hearing officer recommended overruling Woodcrest's objections, and the board affirmed the recommendations.

The D.C. Circuit held that denial of the six subpoenas was not a reversible error. This was because the court was unable to separate the harm Woodcrest suffered (if any) due to the denial from the harm caused by Woodcrest's decision to truncate the hearing. The court also held that Woodcrest failed to show that the denial excluded critical evidence in light of Woodcrest's decision not to call the employees it asserted had direct knowledge of the alleged unlawful conduct.

The court also held that the board did not abuse its discretion in affirming the hearing officer's recommendations, concluding that Woodcrest was engaging in a "fishing expedition" and dismissing as harmless the hearing officer's error in denying the six subpoenas. In reaching this decision, the court noted that the record included the testimony of 10 witnesses called by Woodcrest who provided virtually no proof of objectionable conduct and that Woodcrest chose to walk out rather than offer any additional evidence to strengthen its case.

Woodcrest v. NLRB, D.C. Cir., No. 15-1204 (Jan. 24, 2017).

Professional Pointer: Even when confronted with patently erroneous decisions by an administrative body, an attorney is obligated to zealously represent his or her client by exhausting all administrative remedies. This includes creating a complete record for the reviewing court by placing all objections and offers of proof before the administrative body. Ironically, Woodcrest's decision to walk out left the court with a limited record that lacked evidence Woodcrest could have relied on to prove reversible error or abuse of discretion on review.

Bryant S. Banes is an attorney with Neel, Hooper and Banes PC, the Worklaw® Network member firm in Houston.

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