MHA, LLC d/b/a MEADOWLANDS HOSPITAL MEDICAL CENTER

National Labor Relations Board - Unpublished Board Decisions

Feb 25, 2014

22-CA-086823 (N.L.R.B. Feb. 25, 2014)

UNITED STATES OF AMERICA
NATIONAL LABOR RELATIONS BOARD
MHA, LLC d/b/a MEADOWLANDS
HOSPITAL MEDICAL CENTER
and Case 22-CA-086823
22-CA-089716
22-CA-090437
22-CA-091025
22-CA-091521
22-CA-092061
22-CA-096650
22-CA-097214
22-CA-099492
22-CA-100324
22-CA-106694
HEALTH PROFESSIONALS
AND ALLIED EMPLOYEES,
AFT/AFL-CIO
ORDER1
The Respondent’s Request for Special Permission to Appeal from
Administrative Law Judge Steven Davis’s December 4, 2013 rulings is denied. The
Respondent has failed to establish that the judge abused his discretion in granting the
Union’s petition to revoke paragraph 33 of the Respondent’s subpoena B-710509
addressed to the Union.2

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2 As recognized by our colleague, we review the judge’s order under the highly
deferential abuse-of-discretion standard. Abiding by that standard is essential to permit
the judge to fulfill his duty under Sec. 102.35 of the Board’s Rules and Regulations to
“regulate the course of the hearing.” See generally F.W. Woolworth Co., 251 NLRB
1111, 1111 fn. 1 (1980), enfd. 655 F.2d 151 (8th Cir. 1981), cert. denied 455 U.S. 989
(1982). Here, as a defense to refusal-to-bargain allegations, the Respondent asserts
that the Union’s public criticisms of the Respondent in the media, online, and before
governmental agencies violated the parties’ no-strike agreement and thus privileged the
Respondent’s action. There is no dispute that the Union did engage in such
communications. The Respondent’s subpoena paragraph 33 nevertheless broadly
Dated, Washington, D.C., February 25, 2014.
MARK GASTON PEARCE, CHAIRMAN
NANCY SCHIFFER, MEMBER
Member Miscimarra, dissenting.
I would grant the Respondent’s request for special permission to appeal the
judge’s Order granting the Union’s petition to revoke paragraph 33 of the Respondent’s
subpoena duces tecum. I would then reverse the judge and compel production of the
documents that the Respondent seeks in that paragraph.
The standard for upholding a Board subpoena involves a very expansive
definition of relevance, i.e. the subpoena should be enforced if the evidence sought
"relates to any matter under investigation or in question" in the proceeding. See Section
11(1) of the Act and Sec. 102.31(b) of the Board's rules. The requested evidence need
not itself be dispositive of the issue or even admissible, as long as it reasonably could
lead to the discovery of admissible evidence relevant to resolving the issue.
Paragraph 33 of the Respondent’s subpoena clearly satisfies this standard. In
that regard, the Respondent claims that certain of the Union’s actions constitute a
breach of the parties’ no-strike provision (which, among other things, prohibits “other
economic pressure activity by the Union”). The Respondent, in turn, argues that the

demands that the Union produce all documented internal and external communications
for the last 3½ years that “mention or discuss or in any way relate to” the Respondent.
The judge granted the Union’s petition to revoke paragraph 33 on the ground that this
paragraph of the subpoena related to an affirmative defense that was not a valid
defense to the complaint. The judge expressly granted the Respondent leave to make
an offer of proof at the hearing in support of its contentions. Given the essentially legal
nature of the Respondent’s defense, we find that Respondent has failed to establish the
judge’s chosen course was an abuse of his discretion.
Union’s actions privileged it to suspend its bargaining obligation during the time that the
Union engaged in such activity. It offers cases in support of its position. Whether that
position will ultimately be found to have merit is not the issue at this time. The
information that the Respondent seeks in paragraph 33 is clearly relevant to its defense
and this is all that the Respondent must establish for the Board to enforce the
subpoena. While our standard of review at this juncture is deferential to the judge (who,
I note, simply said that the documents sought in paragraph 33 were “irrelevant”), the
standard governing the enforcement of subpoenas is extremely broad, and I believe the
judge’s decision regarding lack of relevance is clearly erroneous. Accordingly, I would
reverse that ruling.
PHILIP A. MISCIMARRA, MEMBER