Advocate South Suburban Hospital v. National Labor Relations Board ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-1346 & 06-1511
ADVOCATE SOUTH
SUBURBAN HOSPITAL,
Petitioner/Cross-Respondent,
v.
NATIONAL LABOR
RELATIONS BOARD,
Respondent/Cross-Petitioner,
SERVICE EMPLOYEES
INTERNATIONAL UNION,
Intervening Respondent.
____________
On Petition for Review of and Cross-Petition
for Enforcement of an Order of the
National Labor Relations Board
No. 13-CA-42246
____________
ARGUED SEPTEMBER 8, 2006—DECIDED NOVEMBER 21, 2006
____________
Before CUDAHY, EASTERBROOK, and MANION, Circuit
Judges.
CUDAHY, Circuit Judge. Advocate South Suburban
Hospital was charged with unlawfully threatening one of its
nurses for her participation in the Service Employees
International Union’s campaign to organize Advocate
2 Nos. 06-1346 & 06-1511
employees. The National Labor Relations Board concluded
that one of Advocate’s managers coercively interrogated and
threatened the nurse and implied that the union was under
surveillance, all in violation of National Labor Relations Act
§ 8(a)(1), 29 U.S.C. § 158(a)(1). However, the Board dis-
missed another, similar charge against a security guard. It
ordered Advocate to cease and desist from interfering with
its employees’ rights and to post a notice informing the
employees of their rights. Advocate now petitions for review
of the NLRB’s decision, while the NLRB cross-petitions for
enforcement of its order. The union intervenes in support of
the NLRB. We deny Advocate’s petition for review and
grant the NLRB’s cross-petition for enforcement.
I. Background
Advocate South Suburban Hospital (Advocate) employs
about 1,350 people at its facilities in Hazel Crest, Illinois.
In the summer of 2004, Service Employees International
Union (SEIU) was campaigning to unionize some of them.
One employee receptive to SEIU’s campaign was Susan
Hall, a Certified Nurse Assistant still employed at Advocate
at the time of her testimony. In 2004 she had worked the
graveyard shift and an occasional night shift at Advocate
for six and a half years. Hall claims that when Advocate
discovered her attendance at SEIU meetings and she
appeared in SEIU literature she was threatened by her
supervisor Beverly Mulvihill, Advocate’s Manager of
Surgical Services. Hall also claims that a security guard
warned her not to pass out SEIU literature to other employ-
ees. Advocate and its witnesses claim that neither of the
alleged events occurred.
In a hearing before an Administrative Law Judge (ALJ),
Hall testified that two SEIU representatives, identified only
as C.J. Grimes and Julie, visited her house some time in the
summer of 2004. (The precise date is unknown; Hall could
Nos. 06-1346 & 06-1511 3
roughly describe when events occurred in relation to each
other but was mostly unable to give precise dates.) After
they discussed conditions at the hospital, the organizers
invited Hall to an SEIU meeting. Hall attended two such
meetings at the Tinley Park Convention Center, the first
about a week and a half to two weeks after Grimes and
Julie visited Hall’s house, the second about a week and a
half after the first meeting. During the second meeting the
SEIU photographed her. Hall’s only other union-related
activity prior to “late July, early August 2004” was a
discussion at the hospital with three co-workers about how
the union had acquired their names, addresses and tele-
phone numbers. (Hearing Tr. at 135.)
Hall’s flirtation with the SEIU allegedly drew a threat
from Advocate. She testified that on a day between late July
and August 12, 2004,1 she was working a double shift (night
and graveyard). At 3:30 or 4:00 p.m., Mulvihill caught Hall
in the hallway and said she needed to talk to Hall. (Id. at
136-37.) Thinking that she was being disciplined for some
infraction, Hall followed Mulvihill into Mulvihill’s office,
where Kathy Mrozek, Advocate’s Director of Nursing, was
already present. (Id. at 137-38, 251.) Mulvihill told Hall to
close the door, and she did. (Id. at 153, 230.) Mulvihill then
told Hall that she had been hearing people talk about the
union. Hall responded that everybody was talking about it.
Mulvihill added that she had specifically heard that Hall
1
Again, Hall did not precisely date her confrontation with
Mulvihill, but identified a broad stretch of time in which it could
have occurred: the “late July, early August 2004 time period”
(Hearing Tr. at 136); “end of July, first two weeks of August,
somewhere around there” (id.). She also testified, however, that
the confrontation occurred before she received a disciplinary
write-up for absenteeism on August 12 (id. at 141-42), and she
once ventured that the write-up occurred “maybe a week after”
the confrontation (id. at 156).
4 Nos. 06-1346 & 06-1511
had been talking. (Id. at 137, 154.) Hall said she didn’t
want to discuss it. Mulvihill then said sternly that “we
make examples” of people who talk about the union, and
that “[t]here will be a sacrificial lamb.” (Id.) Nonplused, Hill
told Mulvihill to “do whatever” and left the office. (Id.)
According to Hall, Mrozek was silent throughout the
conversation. (Id. at 139-40.) Hall felt that her job had been
threatened and telephoned C.J. Grimes to tell her what had
happened. (Id. at 155.)
Advocate contends that Hall’s story is a complete fabrica-
tion. Mulvihill testified that she never made any of the
comments that Hall attributed to her at any time. Mrozek
testified that she had not been in Mulvihill’s office with
Hall “on or about August 9,” that Mulvihill had never asked
her to watch Mulvihill discipline an employee and that she
had never heard another supervisor tell Hall that Advocate
would make a “sacrificial lamb” out of anyone. (Id. at 382-
83.) Advocate also attempted to impeach Hall with state-
ments about the confrontation she had made in SEIU
videos and speeches, and with quotes from SEIU pam-
phlets. While Hall’s story has the same backbone in the
union materials as in her testimony, the sources arguably
vary with respect to where the confrontation occurred and
whether Mrozek was present.
Reviewing the evidence, the ALJ concluded that Mulvihill
had interrogated and threatened Hall and implied that the
SEIU was under surveillance, meaning that Advocate had
interfered with Hall’s right to assist labor organizations in
violation of National Labor Relations Act § 8(a)(1) (NLRA),
29 U.S.C. § 158(a)(1). The ALJ found Hall’s testimony
credible, stating that she appeared sure of her recollection,
gave spontaneous answers and held to her story under
“withering cross-examination.” (ALJ Op. at 4.) Further, she
had little reason to falsely testify against Advocate in light
of her continued employment there, and there was “no
Nos. 06-1346 & 06-1511 5
evidence that Hall was hostile to management or biased as
a result of having been disciplined.” (Id.)
Although Hall had made prior inconsistent statements
and “had the tendency to exaggerate or embellish her
statements in minor respects,” these did not shake the
ALJ’s belief in the essential elements of her story. (Id. at 5.)
Hall testified that the SEIU composed the brochures and
scripted her videos and speeches. To the extent that the
inconsistencies could be attributed to her, they were minor.
Her prior statements still generally supported her testi-
mony, and where they differed from it the ALJ found her
testimony the more believable account.
Mulvihill’s testimony, by contrast, sounded “mechanical”
and “rehearsed” to the ALJ, and she appeared “evasive” and
“defensive” when asked questions by opposing counsel. (Id.
at 5.) Further, her management position and her critical
description of union tactics that she seemed to feel improp-
erly harassed employees2 led the ALJ to conclude that she
was biased in favor of Advocate.
Mrozek, the ALJ found, was also biased as an Advocate
manager and as Mulvihill’s personal friend. Further, she
had answered limited questions and had not clearly denied
the key elements of Hall’s story. Her testimony that she had
not witnessed any discipline, had not heard the term
2
When asked whether employees had told her they had been
visited at their homes, she replied, “I have had employees tell me
that. That union representatives came to their door, banged on
their door, wouldn’t go away. Stuck their foot in their door. But as
to who and when, I don’t know.” (Hearing Tr. at 332.) When asked
what was talked about in employee conversations about the union
that she overheard, she answered, “Home visits, the fact that the
union was pounding on people’s car windows when they were
trying to get into work, trying to give them information.” (Id. at
357.)
6 Nos. 06-1346 & 06-1511
“sacrificial lamb” and had not seen Hall in Mulvihill’s office
on or about August 9 left open the possibility that there had
been a confrontation (not involving the dramatic “sacrificial
lamb” comment) at some time before August 9.
Hall also testified that an Advocate security guard
threatened her the week of October 13, 2004. After briefly
talking to C.J. Grimes and another union organizer in the
street outside the hospital, Hall parked in the hospital lot.
A security guard approached and asked her if she knew
“those people.” He told her that if she talked to them on
hospital property she could be arrested, and that if she
passed out any of their stuff on hospital property she would
be “walked off the premises.” (Hearing Tr. at 146-48.)
Although Hall described the security guard, she did not
know who he was and had not tried to identify him except
by asking another guard if he knew a co-worker matching
her description. Apparently he did, one “Roger” who was no
longer employed by Advocate at the time of the hearing.
The ALJ did not find a violation with respect to the
security guard incident. Although he believed that the
“general scenario” could have occurred, Hall’s tendency to
exaggerate and embellish made him worry that the guard’s
alleged threats may have been innocent. Hall had no right
to distribute union literature on company time and in
patient care areas, so “slight variation[s]” in what the guard
told her could make the difference between a proper
instruction and a prohibited threat. Additionally, he
thought it unfair to Advocate that Hall had not identified
the guard and that he now, apparently having left Advo-
cate’s employ, could not be located to testify. (Id. at 7.)
The ALJ ordered Advocate to cease and desist from
interrogating and threatening employees and suggesting
that union activities are under surveillance. It also required
posted notice informing employees of their rights. Advocate
appealed the ALJ’s decision to the National Labor Relations
Nos. 06-1346 & 06-1511 7
Board (the NLRB or the Board). The NLRB adopted and
affirmed the ALJ’s decision subject to one minor modifica-
tion.3 In re Advocate South Suburban Hospital, 346 NLRB
No. 23, 2006 WL 92791 (Jan. 10, 2006). The parties now
take the fight to this court. Advocate petitions for review of
the NLRB’s decision on many grounds; the NLRB, with the
intervenor SEIU, petitions to have it enforced.
II. Discussion
This is not a difficult case. We do not draw our own
conclusions as to what witnesses are most convincing, or
hazard a guess as to what may have happened at Advocate
in the summer of 2004. As an appellate court, our task is to
determine whether the NLRB’s legal conclusions have a
reasonable basis in law, Slusher v. NLRB, 432 F.3d 715,
725 (7th Cir. 2005), whether its factual conclusions are
supported by “substantial evidence,” NLRA § 10(e)-(f), 29
U.S.C. § 160 (e)-(f), and whether the two together “build an
accurate and logical bridge between the evidence and the
result,” J.C. Penney Co. v. NLRB, 123 F.3d 988, 995 (7th
Cir. 1997), quoting Sarchet v. Charter, 78 F.3d 305, 307 (7th
Cir. 1996). This review is deferential. “Substantial evi-
dence” means evidence that a reasonable mind could accept
as adequate to support the NLRB’s conclusions; if the
record could reasonably be interpreted to support the
3
The NLRB rejected one of the bases of the ALJ’s decision, that
a present employee’s testimony is not only likely to be credible as
a statement against pecuniary interest but is further presumed to
be credible. Advocate South, 2006 WL 92791, at *1 n.1. Advocate
urges that upon disagreeing with the ALJ’s rationale the NLRB
had to remand the case, but the NLRB is entitled to make its own
factual findings, independent of and potentially contrary to the
ALJ’s, and it is the NLRB’s decision that we review. Slusher v.
NLRB, 432 F.3d 715, 727 (7th Cir. 2005).
8 Nos. 06-1346 & 06-1511
NLRB, that is the end of our inquiry. Slusher, 432 F.3d at
726.
Advocate acknowledges our limited role; yet it scours the
record for anything that could lead a factfinder to discredit
Hall and believe its own witnesses, insisting that the NLRB
failed to properly “discuss the inferences which could be
drawn” from the evidence. (Pet’r Br. at 25.) This may reflect
not only the laudable zeal of Advocate’s advocates, but also
a misunderstanding of the NLRB’s duty to explain its
decision. At times, Advocate seems to believe that reversal
is automatic if it can dig up an argument for its position of
whatever strength that the NLRB failed to explicitly
address in Advocate’s chosen terms. For instance, Advocate
states that the NLRB’s “failure to consider or even to
reference” one of its weaker arguments “requires the
petition for review to be granted.” (Id. at 22 (emphasis
added).)
Section 10(e) of the NLRA does not require an impossible
level of detail from the NLRB. True, failure to address
important evidence can sometimes cause a decision’s
“logical bridge” to collapse. See, e.g., Young v. Barnhart, 362
F.3d 995, 1002-03 (7th Cir. 2004); Lopez v. Barnhart, 336
F.3d 535, 539-40 (7th Cir. 2003); Scott v. Barnhart, 297 F.3d
589, 594-96 (7th Cir. 2002); Zurawski v. Halter, 245 F.3d
881, 888 (7th Cir. 2001). But the duty to bridge the gap
between evidence and result does not require a “complete
written evaluation of every piece of testimony and evi-
dence.” Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir.
2005), quoting Diaz v. Charter, 55 F.3d 300, 308 (7th Cir.
1995). In assessing the adequacy of the Board’s explanation,
we must use common sense to determine whether requiring
additional explanation of a point would be appropriate or
mere nitpicking. Rice v. Barnhart, 384 F.3d 363, 369 (7th
Cir. 2004).
With that in mind, we proceed to Advocate’s various
arguments against the NLRB’s decision. Its claims can be
Nos. 06-1346 & 06-1511 9
grouped into three categories: those relating to witness
credibility, those relating to the NLRB general counsel’s
failure to present certain testimony at the hearing and
those alleging logical inconsistency in the NLRB’s decision.
A. Witness Credibility
This case is basically a swearing contest: in the union’s
corner, Susan Hall; in Advocate’s, the tag team of Beverly
Mulvihill and Kathy Mrozek. The NLRB adjudged Hall the
victor by decision, and Advocate protests the referee’s
scorekeeping. Advocate insists that the NLRB’s findings are
based in part on factors other than witness demeanor and
are consequently not “credibility determinations” entitled to
special deference beyond ordinary substantial evidence
review. See Multi-Ad Services, Inc. v. NLRB, 255 F.3d 363,
370-71 (7th Cir. 2001); Kopack v. NLRB, 668 F.2d 946, 953-
54 (7th Cir. 1982). We do not address that contention
because Advocate’s substantive arguments do not require us
to do so. The NLRB’s findings are supported by substantial
evidence.
1. Susan Hall
Advocate attacks the NLRB’s decision to credit Hall’s
testimony on two grounds: first, that she was impeached by
several prior inconsistent statements; second, that she was
biased.
a. Prior Inconsistent Statements
Advocate repeatedly contrasted Hall’s hearing testimony
with arguably inconsistent accounts of her story in SEIU
promotional literature. It appears that Mulvihill’s alleged
threats became something of a cause celebre for SEIU’s
campaign at Advocate, and Hall’s story was recounted in
10 Nos. 06-1346 & 06-1511
various media. For instance, Advocate entered into evidence
an SEIU pamphlet entitled Faith in Action. The pamphlet
contains tales of several Advocate employees meant to
illustrate problems at the company and the need for a
union. Hall’s story, including an account of her confronta-
tion with Mulvihill written in the third person, appears in
the pamphlet along with her photograph. (Resp’t Ex. 6 at
10.) Additionally, Hall told her story in videos such as Untie
My Hands and Separate and Unequal, transcripts of which
Advocate introduced into evidence (Resp’t Ex. 9, 10), and in
a speech at Bethany Church, a script from which Advocate
introduced into evidence (Resp’t Ex. 11).
Advocate argues that a reasonable factfinder could not
believe Hall because the story in some of the union materi-
als differs from her hearing testimony. It focuses on two
alleged discrepancies. First, Hall at times indicated that
Mulvihill had confronted her in a hospital hallway, without
mentioning Mulvihill’s office;4 second, many accounts
omitted Mrozek’s presence at the confrontation, with Hall
describing the confrontation as “one-on-one” in her Bethany
Church speech.5 These are flimsy weapons with which to
4
From Faith In Action: “During the summer of 2004, Susan
decided to talk to her coworkers about making improvements
through forming a union. Soon after, she was pulled aside by her
supervisor in the hallway at work. The supervisor said, ‘I’ve been
hearing rumors that there’s talk about a union.’ ” (Resp’t Ex. 6 at
10.) From the Bethany Church speech: “My supervisor pulled me
aside in the hall at work and tried talking me out of forming our
union. When I made it clear to her that I didn’t want to talk to her
about this, she got very angry. She threatened me.” (Resp’t Ex. 11
at 2.)
5
From the Bethany Church speech: “I am scared to stand here
and tell my story, but I am determined to fight for a union to
improve our hospitals. When my manager found out I was for the
(continued...)
Nos. 06-1346 & 06-1511 11
attack the NLRB’s findings. Indeed, the statements argu-
ably do not contradict Hall’s testimony. The speech and
pamphlet indicate that Mulvihill “pulled [Hall] aside in the
hall at work” and spoke to her (Resp’t Ex. 6 at 10; Resp’t
Ex. 11 at 2), but as the NLRB observes, this meshes with
Hall’s testimony that she and Mulvihill moved to Mulvihill’s
office after meeting in the hallway. Hall’s statement in her
Bethany Church speech that Mulvihill “pulled me away
from my patients to interrogate me one-on-one” is also
ambiguous. (Resp’t Ex. 11 at 3). She might have meant
“one-on-one” only to indicate that Mrozek did not actively
participate in the interrogation.
At any rate, these questions are not critical, and neither
is whether Hall controlled the contents of her speech and
the brochures, both of which were composed largely by the
union.6 Depending upon the situation, substantial evidence
may support a factfinder’s belief in a witness despite prior
inconsistent statements. See, e.g., NLRB v. Chem Fab
Corp., 691 F.2d 1252, 1258-59 (8th Cir. 1982) (affirming the
5
(...continued)
union, and she pulled me away from my patients to interrogate
me one-on-one about the union [sic].” (Resp’t Ex. 11 at 3.) The
beginning of the second sentence originally read “My manager,”
but the word “My” has been struck out and the words “When my”
handwritten above it.
6
The parties argue at length whether the pamphlet statements,
clearly composed largely by the SEIU, and Hall’s speeches can be
attributed to Hall. Hall testified that the pamphlet and her
speaking scripts were composed by the union (see, e.g., Hearing
Tr. at 183-84), but Advocate points to handwritten alterations on
Hall’s Bethany Church script that it suggests indicate she
maintained some editorial control (see, e.g., Resp’t Ex. 11). We do
not need to address what degree of control Hall had; we assume
for purposes of the appeal that the statements are attributable to
her.
12 Nos. 06-1346 & 06-1511
decision to credit a witness’s testimony regarding a man-
ager’s order to remove a union sweatshirt where the
witness had previously affirmed that the manager said
nothing about the shirt). The circumstances and relevance
of the contradiction are critical. Where a contradiction goes
to the heart of a witness’s story, belief can be error. See
Capric v. Ashcroft, 355 F.3d 1075, 1089-90 (7th Cir. 2004);
NLRB v. Local 46, Metallic Lathers Union, 149 F.3d 93, 106
(2d Cir. 1998). But crediting the witness makes sense where
the impeaching statements differ only with respect to minor
aspects of the story or where the discrepancies are easily
explained. Giday v. Gonzales, 434 F.3d 543, 551 (7th Cir.
2006), Shah v. U.S. Attorney Gen., 446 F.3d 429, 434-36 (3d
Cir. 2006).
In the present case the differences between the union
promotional material and Hall’s testimony are minor and
explicable. The NLRB adopted the ALJ’s finding that any
contradictions were unimportant; the union material
“generally supported [Hall’s] testimony and appeared
consistent with her sworn account of the conversation.” In
re Advocate South Suburban Hospital, 346 NLRB No. 23,
2006 WL 92791, at *5 (Jan. 10, 2006). Moreover, the minor
omissions were explicable in a persuasive pamphlet or
speech composed with “some literary license.” Id. While
invention would be less understandable, omitting details of
Hall’s story in a persuasive context would help make her
story more concise and forceful. Hall’s testimony supported
the NLRB’s take on the union material. For instance, she
said that the pamphlets were “advertisement.” “And what
I mean by advertisement is, is that they have taken things
that other people have said or that was quoted as Union
meetings [sic] and they just kind of threw it together.”
(Hearing Tr. at 184.) Later, when asked why she made
statements that she thought contained inaccuracies, she
responded that she was “trying to make a point” and that
the SEIU “said it would be good because it would show the
Nos. 06-1346 & 06-1511 13
type of coercion that you all are subjected to,” again empha-
sizing that the union literature was not designed to recount
Hall’s story in full but to convincingly illustrate purported
problems at Advocate. (Id. at 254-55.) Given the omissions’
limited relevance to the core of Hall’s story and her expla-
nation for them, it was reasonable for the NLRB to credit
her testimony.
b. Bias
Advocate also argues that the NLRB could not believe
Hall because she was biased against Advocate. The NLRB
found that she was not biased in light of her continuing
employment with the hospital at the time of the hearing,
which gave her reason to testify in its favor and avoid the
ire of her superiors. Advocate South, 2006 WL 92791, at *1
n.1, citing In re Flexsteel Industries, 316 NLRB 745, 745
(1995) (holding that the testimony of current employees
contradicting their managers is adverse to the employees’
pecuniary interests and particularly reliable). Advocate
argues that every employee who complains about mistreat-
ment at work is necessarily biased. We do not agree. The
case Advocate cites in support concludes only that a
particular former employee was disgruntled because of a
past dispute with a company, not that all dissatisfied
employees are untrustworthy. See T&J Meat Packing, Inc.
v. Serv. Employees Int’l Union, Local 1, No. 04-C-1475, 2005
WL 623227, at *8 (N.D. Ill. Mar. 16, 2005). While the ALJ’s
statement that there was “no evidence” of bias was perhaps
an overstatement, it was reasonable to find any such
evidence of bias outweighed by Hall’s current employment.
2. Beverly Mulvihill
As Advocate seeks to discredit the NLRB’s witness, so it
seeks to bolster its own, arguing that the NLRB’s finding
14 Nos. 06-1346 & 06-1511
that Mulvihill was biased is unsupported by the record. It
is supported, despite Advocate’s flurry of objections. When
asked what she had heard employees saying about the
union, Mulvihill repeatedly described the SEIU’s tactics in
harsh terms, saying for example that they “wouldn’t go
away,” “[s]tuck their foot in [employees’] door[s]” (Hearing
Tr. at 332) and “pound[ed] on people’s car windows when
they were trying to get into work, trying to give them
information” (id. at 357). Advocate argues that Mulvihill
was only repeating others’ words, but that is not clear in
the record. Advocate also urges that Mulvihill’s statement
at an employee meeting that she did not have an opinion
with regard to unionization proves her neutrality. It proves
that she is not both biased and foolish, but it leaves the
possibility that she is wise enough to display bias only
behind a closed door. Neither do Mulvihill’s relatives who
are union members prove her friendly with the SEIU in
particular. Finally, Advocate says that there was no
evidence that Mulvihill adopted anti-union sentiments
expressed at managerial training sessions, forgetting, of
course, Hill’s testimony that Mulvihill threatened her with
vague doom for talking about the SEIU.
Even assuming that Mulvihill isn’t biased, the NLRB still
adopted the ALJ’s finding that Mulvihill seemed “mechani-
cal” and “rehearsed,” as well as “hesitant” and “evasive”
when asked questions by opposing counsel. Advocate South,
2006 WL 92791, at *3. Such demeanor evidence alone can,
in the present circumstances, support a conclusion that
Mulvihill lied.
3. Kathy Mrozek
The NLRB disbelieved Mrozek, adopting the ALJ’s
conclusion that she was biased by her friendship with
Mulvihill, and thought she had given very narrow testi-
mony that did not fully contradict Hall’s account. Both
conclusions were supported by substantial evidence.
Nos. 06-1346 & 06-1511 15
Advocate urges that friendship alone can never support a
finding of bias, citing a case that instead holds that a
factfinder is not compelled to disbelieve a friend’s testi-
mony. Hampton v. Leibach, 347 F.3d 219, 254 (7th Cir.
2003) (holding that an attorney’s failure to present the
exculpatory testimony of a criminal defendant’s friends
prejudiced the defendant). Friendship is evidence for a
factfinder to consider, id., and it supported the NLRB’s
conclusion here.
Assuming Mrozek’s testimony were true, the NLRB
additionally concluded that Mrozek had not contradicted
Hall’s account. Mrozek testified that she had not been in
Mulvihill’s office with Hall “on or about August 9, 2004”
(Hearing Tr. at 382), that Mulvihill had never invited her
to witness Mulvihill discipline an employee and that she
had never heard anyone tell Hall that Advocate would make
a “sacrificial lamb” out of an employee (id. at 383). The
possibility remains that Mrozek had witnessed a confronta-
tion before August 9 in which Mulvihill had not used the
term “sacrificial lamb.” Advocate notes that in legal par-
lance the phrase “on or about” indicates a reasonable period
of time around the named date, and argues that Mrozek’s
testimony must be taken to indicate the full period in which
Hall said the encounter could have occurred. See, e.g., Lewis
v. Merrill, 228 Or. 541, 543, 365 P.2d 1052, 1053 (1961). But
Mrozek, who so far as the record reveals has no legal
expertise, might have understood the attorney’s question
differently, especially in light of Advocate’s unsuccessful
effort to prove that the alleged confrontation could have
occurred only on August 9.7 The SEIU’s brief cross-examina-
7
Advocate introduced records indicating that Hall was not
working the night shift, when she says the confrontation occurred,
on August 10 through 12. (Hearing Tr. at 306-13.) It argued that
this proved the confrontation could have occurred only on August
(continued...)
16 Nos. 06-1346 & 06-1511
tion suggested a narrow understanding of her answer by
revealing that Mrozek had been in Mulvihill’s office earlier
in the summer. (Id. at 386). In these circumstances, the
NLRB’s understanding of Mrozek’s testimony was sup-
ported by substantial evidence.
Advocate also argues, without citation, that the ALJ’s
failure to further question Mrozek to determine what she
understood “on or about” August 9 to mean demonstrated
bias requiring reversal. The Constitution requires unbiased
adjudicators in quasi-judicial administrative proceedings,
but ALJs are presumed fair absent contrary evidence of
deep-seated favoritism. See Liteky v. United States, 510 U.S.
540, 555 (1994); Schweiler v. McClure, 456 U.S. 188, 195
(1982). In the present case, the ALJ’s failure to pin down
Mrozek can be easily explained without the farfetched
theory that he was determined to build a record to support
judgment for the NLRB. He might simply have missed the
problem at first. Besides, in an adversary legal system it is
generally the attorney’s duty to provide specific testimony.
Advocate cannot palm off on the ALJ its apparent failure to
properly question Mrozek.
B. Adverse Inference from C.J. Grimes’s Failure to
Testify
Advocate attacks not only the inferences the NLRB drew
from testimony the ALJ heard, but one it drew from
testimony the ALJ didn’t hear, or rather that it drew from
7
(...continued)
9. But even taking Hall’s narrowest characterization of the time
in which the confrontation could have occurred, about a week
before she was disciplined on August 12 (id. at 156), that still
leaves several unexamined days around August 5. The ALJ
recognized as much. (Id. at 312 (“We would need the time cards
then for July and August.”).)
Nos. 06-1346 & 06-1511 17
the NLRB General Counsel’s failure to present it. The
General Counsel flirted with calling the SEIU organizer,
C.J. Grimes, to the stand, presumably to corroborate Hall’s
testimony and rebut Advocate’s fabrication defense. Hall
testified that she telephoned Grimes shortly after her
confrontation with Mulvihill; if that is true, Grimes could
confirm the conversation and its contents. But the General
Counsel chose not to call Grimes. Advocate urges that this
must be because Grimes wouldn’t have corroborated Hall,
but would have instead critically contradicted her, or
otherwise made some damning admission. What form the
contradiction or admission would have taken is, of course,
speculative. Below, Advocate urged that Grimes would have
testified that Hall’s original story was the one told in the
union materials, aiding its impeachment efforts. (Resp’t
Exceptions to the Administrative Law Judge’s Decision
¶ 55, 60; Resp’t Reply to Charging Party and General
Counsel’s Answer to Resp’t Exceptions and Br. in Supp. at
8-9.) Advocate now suggests that Grimes would have
revealed that the chronology of Hall’s account was confused
and impossible; specifically, she would have indicated that
the second union meeting, which Hall said occurred before
the confrontation, occurred after August 12, which Hall
instead said postdated the confrontation. (Pet’r Br. at 21.)
Advocate argues that the NLRB should have inferred that
Grimes would have testified to such an effect and taken
that inference into account in reaching its decision, an
application of the so-called “missing witness” rule. See
Interstate Circuit, Inc. v. United States, 306 U.S. 208, 225-
26 (1939); Roper Corp. v. NLRB, 712 F.2d 306, 310 (7th Cir.
1983), Wigmore on Evidence § 285 (1979).
The argument collapses when one considers that Advocate
had the power to compel testimony. If Grimes would have
done so much damage, why didn’t Advocate put her on the
stand? The inference Advocate urges against the General
Counsel can be turned back at itself, which is why we have
18 Nos. 06-1346 & 06-1511
previously held that a party can take advantage of the
“missing witness” rule only when “the missing witness was
peculiarly in the power of the other party to produce.” J.C.
Penney Co. v. NLRB, 123 F.3d 988, 996 n.2 (7th Cir. 1997),
quoting Oxman v. WLS-TV, 12 F.3d 652, 661 (7th Cir.
1993); see also Wigmore § 288.8 Both parties agree that
Advocate could have subpoenaed Grimes. 29 U.S.C.
§ 161(1). Advocate does not argue that it was somehow
unaware of the potential relevance of Grimes’s testimony or
otherwise unable to bring her to the stand. Under these
circumstances, the NLRB’s failure to draw an inference in
favor of Advocate was entirely reasonable.
Even if an adverse inference were called for, its strength
would not be such as to compel a reasonable factfinder to
disbelieve Hall because the NLRB General counsel did not
have a very strong incentive to present Grimes’s testimony,
8
Since our own precedent establishes this rule we must respect
it, regardless of some NLRB adjudications to the contrary. See,
e.g., In re Int’l Automated Machines, Inc., 285 NLRB 1122, 1122-
23 (1987) (holding that the rule can apply even when the missing
witness “was equally available to be called by both” parties). But
even if we were not bound to do so, we would still reject the
NLRB’s version of the rule because it is irrational. The missing
witness rule is not a “counterfactual evidentiary presumtio[n]”
designed to further “particular legal or policy goals.” See Allen-
town Mack Sales & Serv. v. NLRB, 522 U.S. 359, 378 (1998). It is
not even special to the labor law context. It is a general, common
sense attempt to codify the inference one can draw from a party’s
failure to call a witness. See BASF Corp. v. Old World Trading
Co., 41 F.3d 1081, 1098 (7th Cir. 1994); Wigmore § 285. Conse-
quently, the NLRB is not free to arbitrarily declare that it will
accept the plausible inference against the NLRB’s general counsel
but not the equally plausible and counterbalancing inference
against Advocate; it must “draw all those inferences that the
evidence fairly demands.” Slusher, 432 F.3d at 726, citing
Allentown Mack, 522 U.S. at 378.
Nos. 06-1346 & 06-1511 19
which was essentially cumulative and of little value. United
States v. Gant, 396 F.3d 906, 910 (7th Cir. 2005); Wilson v.
Merrell Dow Pharmaceuticals, Inc., 893 F.2d 1149, 1150-51
(10th Cir. 1990). Grimes is not a third party whose disinter-
ested confirmation of Hall’s tale could have blown the case
wide open. She is an organizer for SEIU; if anything, she
had more reason to falsely corroborate Hall’s story than
Hall had to fabricate it. The NLRB did not have to conclude
that some dark secret kept her off the stand. The general
counsel may have simply wanted to save time. The NLRB’s
decision to credit Hall despite the absence of testimony from
Grimes was reasonable and supported by substantial
evidence.
C. Alleged Inconsistencies
Finally, Advocate urges that the NLRB’s decision has to
be reversed because of two alleged inconsistencies in its
opinion. Neither inconsistency is real.
1. Discredited Security Guard Story
Advocate argues that it was unreasonable for the NLRB
to discredit Hall’s story about the encounter with the
security guard on the grounds that she had a tendency to
“exaggerate or embellish her statements in minor re-
spects” and yet to credit her Mulvihill story, presumably
affected by the same tendency. This interpretation, how-
ever, oversimplifies the Board’s position; in fact, the NLRB
adopted the ALJ’s finding that the “general scenario
[involving the guard] as described by Hall may have oc-
curred,” but that due to Hall’s tendency to embellish her
testimony, it could not be sufficiently certain that what the
security guard actually said to Hall violated the NLRA. In
re Advocate South Suburban Hospital, 346 NLRB No. 23,
2006 WL 92791, at *7 (Jan. 10, 2006).
20 Nos. 06-1346 & 06-1511
Thus, the NLRB ruled that the security guard did have
the right to “threaten” Hall for distributing literature in
certain ways: Hall had no right to distribute literature in
patient care areas or while she was on the clock. In the case
of the security guard testimony, therefore, a relatively
slight distortion in the telling could turn a report of a
legitimate warning (informing Hall that she could be
disciplined for distributing literature on the clock) into an
account of an improper threat (telling Hall that she could be
fired for distributing literature to coworkers at any time).
Id. at *7.
The NLRB was not as concerned with Hall’s “embellish-
ment” tendency when evaluating the story of her confronta-
tion with Mulvihill because it was completely impermissible
for Mulvihill in any way to imply that the union was under
surveillance or to threaten Hall for or coercively interrogate
her about her union activities. Even if the NLRB concluded
that Hall had significantly amplified the degree of threat in
her testimony, the underlying events would still be illegal.
The NLRB’s decision to treat Hall’s similar allegations
against the two employer representatives differently was
understandable.
2. “Known Union Organizer” Finding
Advocate claims that the NLRB’s characterization of Hall
as not a “known union organizer” was inconsistent with its
decision to believe Hall’s account of Mulvihill’s implied
charge that Hall was working with the union. Id. at *6. But
the Board, in speaking of a “known union organizer,” did
not mean to say that no one knew Hall was working with
the union, merely that her activities were not general
knowledge. That such knowledge was limited to a few
interested parties was the basis of the Board’s conclusion
that Mulvihill’s telling questions about Hall’s relationship
to the union implied that the SEIU was under surveillance.
Nos. 06-1346 & 06-1511 21
Id. The NLRB’s conclusion was internally consistent and
reasonable.
III. Conclusion
For the foregoing reasons, we conclude that the ALJ’s
findings and decision, as adopted and modified by the
NLRB, are supported by substantial evidence. Advocate’s
petition for review is DENIED. The NLRB’s petition for
enforcement of its order is GRANTED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-21-06