ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF A DECISION AND ORDER OF THE NATIONAL LABOR RELATIONS BOARD. Board No. 6-CA-24965.
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 ...