By Marjorie Johnson, J.D.
The D.C. Circuit ordered the NLRB to reassess its decision to exercise jurisdiction over Temple University Hospital’s relationship with a petitioning union since the Board only “assumed arguendo” that judicial estoppel was available in its proceedings and then misapplied Supreme Court guidance in refusing to apply it here.
Declining to directly address whether the doctrine of judicial estoppel is available in NLRB proceedings, the D.C. Circuit declined to enforce the Board’s decision to assume jurisdiction over Temple University Hospital’s relationship with a professional and technical workers’ union, which had previously argued in favor of a state labor board’s jurisdiction. The appeals court held that the NLRB misapplied the teachings of the Supreme Court’s decision New Hampshire v. Maine and remanded for the Board to determine first whether judicial estoppel is available in its proceedings and, if so, to explain whether the hospital made a sufficient showing of unfair advantage or unfair detriment, and whether the ultimate “balance of equities” favored its application here (Temple University Hospital, Inc. v. NLRB, July 9, 2019, Ginsburg, D.).
Labor relations overseen by state labor board. For over 40 years, the labor relations of Temple University Hospital were conducted under the jurisdiction of the Pennsylvania Labor Relations Board (PLRB), and since 2006, Temple Allied Professionals, Pennsylvania Association of Staff Nurses and Allied Professionals represented a unit of its professional and technical employees (the BU). When the union originally filed a petition with the PLRB seeking to represent the already-certified BU in 2005, it challenged the incumbent union’s claim that the NLRB had jurisdiction over the hospital and convinced the state agency to exercise jurisdiction.
Years later, union seeks NLRB jurisdiction. Over the next several years, the union filed at least 21 unfair labor practices with the PLRB. But in October 2015, when the union wanted to add a group of unrepresented employees to the existing BU, it sought approval from the NLRB rather than the PLRB. The hospital objected, arguing among other things that the union was judicially estopped from invoking NLRB jurisdiction because it had argued in prior proceedings that the Board lacked jurisdiction.
Larger unit certified over hospital’s objection. The NLRB rejected the hospital’s various challenges, including its judicial estoppel argument. It “assumed arguendo” that the doctrine applied in Board proceedings but, based upon its understanding of the Supreme Court’s teachings in New Hampshire v. Maine, was inappropriate here. It then asserted jurisdiction and certified the union as the representative of the larger BU.
The hospital refused to bargain with the union and contested the NLRB’s jurisdiction and the bargaining unit’s certification; the union responded by filing an unfair labor practice (ULP) charge with the NLRB. Granting the union’s motion for summary judgment, the NLRB did not address the hospital’s jurisdictional or certification arguments, and this appeal followed.
Two issues raised, only one discussed. The hospital raised two issues on appeal: (1) whether the NLRB properly asserted jurisdiction over the hospital; and (2) whether the NLRB properly granted comity to the PLRB’s certification of the technical-professional unit. The D.C. Circuit did not reach the second issue since it found that the NLRB’s jurisdictional holding was in error.
Hospital urges judicial estoppel. The NLRA exempts “any State or political subdivision thereof” from the definition of an “employer” within the jurisdiction of the NLRB. Here, the union argued, and the NLRB agreed, that the hospital was not a “political subdivision” of the Commonwealth of Pennsylvania and thus not exempt from the NLRB’s jurisdiction. But the hospital contended that the union should have been judicially estopped from taking that position since it previously convinced the PLRB that the NLRB lacked jurisdiction over the hospital during representation proceedings in 2005 and 2006, and it reiterated that view in the dozens of ULP cases it had brought before the PLRB since then.
Three key factors. In New Hampshire v. Maine, the Supreme Court set forth three key factors for courts to consider when deciding whether to apply judicial estoppel in a particular case: (1) whether the party’s later position is “clearly inconsistent” with its earlier position; (2) whether the party “has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled”; and (3) “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.”
Board must first decide if it could invoke doctrine. Before applying these three factors to decide whether judicial estoppel should apply, a threshold decision must be made as to whether the NLRB—a nonjudicial tribunal—may itself invoke judicial estoppel. The NLRB failed to address this issue of first impression since it merely “assumed arguendo” that the doctrine applied. While the D.C. Circuit ultimately overturned Board’s determination since it misapplied the teaching of New Hampshire v. Maine, the court declined to answer whether judicial estoppel applies in NLRB proceedings, finding it more appropriate for the Board to consider the issue in the first instance.
“Clearly inconsistent.” In rejecting the NLRB’s New Hampshire v. Maine analysis, the D.C. Circuit observed that the first factor—whether the union’s current position was “clearly inconsistent” with its earlier position—was obviously present here. The record showed that the union previously argued to the PLRB that the NLRB did not have jurisdiction, the PLRB accepted this argument, and the union now contended that the NLRB does have jurisdiction.
“Succeeded in persuading.” Moreover, the NLRB erred in finding that the second factor was not present since there was no evidence that the union “misled the PLRB” and no adequate basis to believe the PLRB would have reached a different result had the union taken some contrary position. This explanation reflected a misunderstanding of the second factor; nothing in New Hampshire v. Maine suggested the party’s inconsistent position must be a “but-for” cause of the first tribunal’s decision. Similarly, there was no independent requirement of evidence that the party changing its position had actively misled the first tribunal.
“Unfair detriment.” Finally, the NLRB failed to sufficiently explain why it rejected the hospital’s contention that it suffered an “unfair detriment” from the union previously seeking the PLRB’s jurisdiction since, had it been before the NLRB during prior labor disputes, it might have availed itself of certain legal remedies available under the NLRA but not the PERA. The Board neither explained why the hospital’s proffer fell short nor specified what “type” of detriment or advantage would be enough.
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