## Facts

- Salem Hospital Corporation operated an acute-care hospital in New Jersey.
- A union petitioned the NLRB to represent Salem’s registered nurses.
- Salem contested the petitioned-for unit, claiming certain nurses were “supervisors” excluded from NLRA coverage under 29 U.S.C. § 152(11).
- After a representation hearing, an NLRB hearing officer concluded the disputed nurses were not supervisors and recommended certification.
- Salem alleged the hearing officer engaged in improper ex parte communications with nurse witnesses and sought transfer of the proceeding to a different NLRB regional office.
- The hearing officer denied any ex parte communications; the NLRB found no evidence supporting Salem’s allegation and denied the transfer request.
- The NLRB certified the union as the bargaining representative; Salem refused to bargain to challenge the certification.
- The NLRB found Salem’s refusal to bargain was an unfair labor practice and issued an order; Salem petitioned for review and the NLRB cross-applied for enforcement.

## Issues

1. Whether alleged procedural errors in the NLRB’s handling of the representation case—especially Salem’s ex parte allegation and related motions—required setting aside the union certification and the ensuing unfair-labor-practice order.
2. Whether substantial evidence supported the NLRB’s finding that Salem unlawfully refused to bargain with the certified union.

## Decision

- The court denied Salem’s petition for review and granted the NLRB’s cross-application for enforcement.
- Even assuming the agency proceedings involved procedural missteps, Salem failed to show prejudice—i.e., that any error likely affected the outcome or denied a fair opportunity to litigate.
- Salem did not present concrete evidence of ex parte communications or explain how the alleged conduct altered the record, findings, or result.
- With certification left intact, Salem’s refusal to bargain supported the NLRB’s unfair-labor-practice determination, and the Board’s order was enforced.

## Legal Principles

- An NLRB order will not be set aside for procedural error absent a showing of prejudice; harmless procedural mistakes do not warrant vacatur.
- Allegations of improper ex parte contact in agency adjudication require evidentiary support and a demonstration of resulting harm to the party’s ability to litigate.
- Courts defer to the NLRB’s factual determinations, including supervisory-status findings under NLRA § 2(11), when supported by substantial evidence.
- An employer’s refusal to bargain with a duly certified union constitutes an unfair labor practice unless the certification is successfully invalidated.

## Conclusion

The D.C. Circuit enforced the NLRB’s certification and refusal-to-bargain order because Salem’s procedural objections—centered on unsubstantiated ex parte allegations—did not establish prejudice, and the Board’s determinations were supported under the governing deferential standards of review.


Salem Hosp. Corp. v. NLRB, 808 F.3d 59 (D.C. Cir. 2015)