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Temple University Hospital, Inc. v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

July 9, 2019

Temple University Hospital, Inc., Petitioner
v.
National Labor Relations Board, Respondent Temple Allied Professionals, Pennsylvania Association of Staff Nurses and Allied Professionals, Intervenor

          Argued February 25, 2019

          On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

          Shannon D. Farmer argued the cause for petitioner. With her on the briefs were Meredith Swartz Dante and Katherine J. Atkinson. Christopher T. Cognato entered an appearance.

          Kellie Isbell, Senior Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Peter B. Robb, General Counsel, John W. Kyle, Deputy General Counsel, and Julie Brock Broido, Supervisory Attorney. David S. Habenstreit, Attorney, entered an appearance.

          Jonathan Walters argued the cause for intervenor. With him on the brief was Claiborne S. Newlin.

          Before: Henderson and Tatel, Circuit Judges, and Ginsburg, Senior Circuit Judge.

          OPINION

          GINSBURG, SENIOR CIRCUIT JUDGE

         For more than 40 years, the labor relations of the petitioner, Temple University Hospital, were conducted under the jurisdiction of the Pennsylvania Labor Relations Board (PLRB). Since 2006 the Hospital has been in a collective bargaining relationship with Temple Allied Professionals, Pennsylvania Association of Staff Nurses and Allied Professionals (the Union), which represents a unit of its professional and technical employees. In 2015 the Union petitioned the National Labor Relations Board (NLRB) to assert jurisdiction over their relationship. Over the Hospital's objections, the NLRB asserted jurisdiction and certified the Union as the representative of a larger unit of employees. The Hospital, however, refused to bargain with the Union in order to contest the NLRB's jurisdiction and its certification of the bargaining unit.

         The NLRB rejected the Hospital's various challenges, including its argument that the Union was judicially estopped from bringing a petition before the Board because the Union had argued in prior proceedings that the NLRB lacked statutory jurisdiction. Specifically, in denying the Hospital's request for review of this question, the NLRB assumed arguendo that the doctrine of judicial estoppel applies in NLRB proceedings but, based upon its understanding of the Supreme Court's teaching in New Hampshire v. Maine, 532 U.S. 742 (2001), as applied to the facts of this case, deemed it inappropriate. We hold that the NLRB misapplied New Hampshire v. Maine and remand this case for it to consider whether judicial estoppel is available in NLRB proceedings and, if so, whether to invoke it.

         I. Background

         The petitioner is an acute-care hospital located in Philadelphia, Pennsylvania. In 1910 it was acquired by Temple University - a private, "State-related university in the higher education system of the Commonwealth," Reg'l Dir.'s Decision and Direction of Election at 3 [hereinafter RD Dec.], quoting the Temple University-Commonwealth Act, 1965 Pa. Laws 843, 843 - and became an unincorporated division of the University. In 1995 the Hospital became a separate nonprofit corporation, of which the sole shareholder is Temple University Health System, which was created by the University to hold its healthcare-related assets. Although the University and the Hospital are separate corporate entities and separate employers for the purpose of collective bargaining, there remain close operational ties between them.

         In 2005 the Union filed a petition with the PLRB seeking to represent an already-certified bargaining unit of professional and technical employees at the Hospital (hereinafter technical-professional unit). In re the Employees of Temple University Health System, 39 PPER ¶ 49, Case No. PERA-R-05-498-E (PLRB Apr. 21, 2006). During those proceedings, the incumbent union, the Professional and Technical Employees Association, argued the NLRB had jurisdiction over the Hospital, id., which would preempt the jurisdiction of the state labor board, see San Diego Building Trades Council v. Garmon, 359 U.S. 236, 246 (1959). The Union, of course, contended the PLRB properly had jurisdiction. The PLRB concluded it had jurisdiction over the Hospital and held the previously certified unit was appropriate for collective bargaining. 39 PPER ¶ 49. The PLRB then conducted an election; the Union prevailed and has represented the unit ever since.

         The Union has stipulated that "since 2005, any and all petitions for representation, requests for certification, petitions for unit clarification, petitions for amendment [or] clarification and charges of unfair labor practices have all been filed by [the Union] with the Pennsylvania Labor Relations Board." During that time, the Union filed no fewer than 21 unfair labor practice charges, including one for which the Union filed its post-hearing brief as recently as February 2015. See Pennsylvania Association of Staff Nurses and Allied Professionals v. Temple University Health System, 48 PPER ¶ 54, Case No. PERA-C-14-259-E (PLRB Nov. 30, 2016). The Union has further stipulated that, "in each instance in which a petition or charge was filed, [the Union] alleged that … Temple University Hospital … was a public employer within the meaning of Section 301(1) of PERA," that is, the orthographically peculiar Pennsylvania Public Employe Relations Act. As relevant here, the PERA excludes from the definition of "public employer" any "employer[] covered or presently subject to coverage under … the 'National Labor Relations Act.'" 43 Pa. Stat. Ann. § 1101.301(1).

         Nonetheless, in October 2015, when the Union wanted to add a group of unrepresented employees to the existing technical-professional unit, it sought the approval of the NLRB rather than that of the PLRB. The Union had notified the Hospital of this change, explaining that it anticipated the Supreme Court's impending decision in Friedrichs v.California Teachers Ass'n, 136 S.Ct. 1083 (2016), would be unfavorable to its interests. The Hospital objected; it argued the NLRB should dismiss the petition on the grounds that (1) the Union is judicially estopped from invoking the jurisdiction of the NLRB; (2) the Hospital is a "political subdivision" of Pennsylvania and therefore is not subject to the jurisdiction of the NLRB, see 29 U.S.C § 152(2); and (3) due to the close ties between the Hospital and the University, the NLRB should exercise its discretion to decline jurisdiction over the Hospital.[*]The Hospital further urged the NLRB not to "grant comity" to the PLRB's ...


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