Labor & Employment Law Daily Judicial estoppel not available in NLRB proceedings if it would cause Board to surrender jurisdiction
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Thursday, April 15, 2021

Judicial estoppel not available in NLRB proceedings if it would cause Board to surrender jurisdiction

By Ronald Miller, J.D.

A  union was not estopped from arguing that the Board had jurisdiction when it previously had asserted that the Pennsylvania Labor Relations Board had jurisdiction.

On remand from the D.C. Circuit, a three-member panel of the NLRB determined that judicial estoppel was not available in any Board proceeding where application of that doctrine could compel the Board to surrender its jurisdiction. Addressing this question of first impression, the Board concluded that to treat judicial estoppel as a cognizable argument would surrender powers Congress has endowed the Board with under Section 10(a). The Pennsylvania Labor Relations Board (PLRB) constitutes a means “established by law” to prevent unfair labor practices, but Section 10(a) provides that the Board’s power to prevent such misconduct shall not be affected by such other means. Moreover, the Board pointed out that, consistent with Section 10(a) and federal labor policy, it has not hesitated to assert jurisdiction notwithstanding parties’ inconsistent positions on that issue over time (Temple University Hospital, April 12, 2021).

PLRB jurisdiction. For more than 30 years prior to 2006, District 1199C represented an employer’s professional and technical employees, and the parties conducted their labor relations under the jurisdiction of the Pennsylvania Labor Relations Board (PLRB). In 2005, the Temple Allied Professionals (the union) filed a petition with the PLRB, seeking to represent the unit. In that proceeding, the employer and the union took the position that the PLRB had jurisdiction over the employer, while District 1199C contended that the Board had jurisdiction. The PLRB asserted jurisdiction over the employer and conducted an election. The union won and was certified by the PLRB.

Judicial estoppel. In 2015, the union petitioned the Board for an Armour-Globe election among 12 unrepresented professional medical interpreters and transplant financial coordinators to determine whether they wished to be included in the professional and technical unit. The employer sought dismissal of the petition on multiple grounds, including that the union was judicially estopped from invoking the Board’s jurisdiction because it had argued in the earlier proceeding before the PLRB that the Board lacked jurisdiction over it.

An acting regional director found that the Board had jurisdiction over the employer and directed an election. The union won the election and was certified as the exclusive collective-bargaining representative of the expanded unit.

Thereafter, the Board granted the employer’s request for review, but denied review with respect to the acting regional director’s ruling on judicial estoppel. Citing New Hampshire v. Maine, 532 U.S. 742 (2001), the Board affirmed the acting regional director’s conclusion that the union was not estopped from invoking the Board’s jurisdiction.

Subsequently, the employer refused to recognize and bargain with the union, and the Board found that the employer violated Section 8(a)(5) and (1) of the Act by doing so, Temple University Hospital, Inc., 366 NLRB No. 88 (2018). The employer petitioned the D.C. Circuit for review of the Board’s order.

The appeals court concluded that the Board’s bargaining order was unenforceable because the Board had misapplied the New Hampshire v. Maine factors in the underlying representation case.

Remand. On remand, the Board observed that it did not foreclose the possibility that a future case may present circumstances under which judicial estoppel may be appropriately applied. Here, the employer sought to use judicial estoppel as a basis for compelling the Board to surrender its jurisdiction. However, the Board held that judicial estoppel is unavailable for that purpose in Board proceedings.

As an initial matter, the Board observed that federal courts have generally declined to apply judicial estoppel to create or defeat jurisdiction. Similarly, the Board is also unwilling to place its jurisdiction in the hands of litigants. Were judicial estoppel available here, the Board could be compelled to surrender its jurisdiction to the PLRB if the balance of equities under New Hampshire v. Maine favored estoppel. Consequently, whether the Board would retain jurisdiction could depend on the parties’ petition-filing and litigation choices over time.

Jurisdiction. There is no question that the Board had jurisdiction of the employer as an employer under Section 2(2) of the Act. The 1974 Health Care Amendments to the Act extended the Board’s jurisdiction to nonprofit hospitals and other healthcare facilities, like the employer. Moreover, the employer was not a political subdivision of the Commonwealth of Pennsylvania, nor was it otherwise excluded from statutory employer status.

Although the employer raised judicial estoppel in the underlying representation case, a finding that the NLRB is constrained to surrender jurisdiction to the PLRB would mean that the PLRB has jurisdiction over the employer in all cases, including unfair labor practice cases. However, federal labor policy weighs heavily against allowing judicial estoppel to be used as a ground to limit Board jurisdiction in this way.

Section 10(a) of the Act empowers the Board to prevent unfair labor practices and the power to prevent such misconduct shall not be affected by any other means established by law. Given that the PLRB is also empowered to prevent unfair labor practices, unfair practice proceedings before the PLRB constitutes a means “established by law” to prevent the same kinds of misconduct governed by Section 10(a). Thus, to treat judicial estoppel as a cognizable argument would surrender powers Congress has endowed the Board with under Section 10(a).

Inconsistent positions. Further, the fact that the union previously submitted itself to the PLRB’s jurisdiction and subsequently invoked the NLRB’s ought not control the Board’s exercise of its jurisdictional powers. Consistent with Section 10(a) and federal labor policy, the Board has not hesitated to assert jurisdiction notwithstanding parties’ inconsistent positions on that issue overtime.

Accordingly, the Board held that judicial estoppel is not available in this proceeding to divest it of jurisdiction over the employer, and it found that it properly asserted jurisdiction over this dispute in 2016.

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