New York & Presbyterian Hospital v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 2011 Decided June 14, 2011

No. 10-1278

NEW YORK AND PRESBYTERIAN HOSPITAL,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD ,

RESPONDENT

Consolidated with 10-1291

On Petition for Review and Cross-Application

for Enforcement of an Order of the National

Labor Relations Board

James S. Frank argued the cause for the petitioner. Michael

F. McGahan and Terence H. McGuire were on brief.

Heather S. Beard, Attorney, National Labor Relations

Board, argued the cause for the respondent. John H. Ferguson,

Associate General Counsel, Linda Dreeben, Deputy Associate

General Counsel and Meredith L. Jason, Deputy Assistant

General Counsel, were on brief. Fred B. Jacob, Supervisory

Attorney, entered an appearance.

Before: HENDERSON , BROWN and KAVANAUGH , Circuit

Judges.

2

Opinion for the Court filed by Circuit Judge HENDERSON .

KAREN LE CRAFT HENDERSON , Circuit Judge: New York

and Presbyterian Hospital (Hospital) petitions for review of a

decision and order by the National Labor Relations Board

(NLRB or Board) finding the Hospital in violation of section

8(a)(5) of the National Labor Relations Act (Act), 29 U.S.C.

§ 158(a)(5), for failing to produce information requested by the

labor union with which the Hospital has a collective bargaining

agreement, the New York State Nurses Association (NYSNA or

Union). The Board cross-applies for enforcement of its decision

and order. The Hospital asserts that NYSNA failed to

demonstrate the relevance of its request for information, attacks

the evidentiary foundation of the Board’s decision and order and

raises a number of additional arguments. We reject the

Hospital’s arguments and deny its petition for review.

I.

The petition for review arises from an alleged violation of

the collective bargaining agreement between the Hospital and

NYSNA. The Hospital is a not-for-profit corporation operating

a large hospital and ten satellite clinics in the Washington

Heights area of New York City, New York. The Hospital is

affiliated with Columbia University School of Medicine

(Columbia) and nearly all of its physicians are members of

Columbia’s faculty and employed directly by Columbia.

NYSNA is a labor union representing the roughly 2600 nurses

in the Hospital’s employ, including a number of nurse

practitioners (NPs)—licensed nurses who possess more

advanced credentials. The collective bargaining agreement

between the Hospital and NYSNA contains a union security

clause, which requires nurses to join the Union within thirty

days of being hired by the Hospital, and includes a “side letter,”

which provides that “[e]xcept for certification, training or

3

experimentation and emergencies, registered nurses who are

outside of the bargaining unit will not routinely or consistently

perform those clinical duties normally performed by members

of this bargaining unit.” N.Y. Presbyterian Hosp., 354 N.L.R.B.

No. 5, at *5 (2009) (reprinting ALJ decision).

In 2004, NYSNA began to suspect that non-Union nurse

practitioners were on Hospital premises performing work

normally done by members of the NYSNA bargaining unit.

NYSNA’s focus soon narrowed on a number of NP employees

of Columbia who worked at the Hospital. These NPs were not

represented by NYSNA. On June 4, 2004, NYSNA filed a

grievance alleging that the Hospital “hired nurse practitioners in

a nonunion capacity to do bargaining unit work.” N.Y.

Presbyterian Hosp., 354 N.L.R.B. No. 5, at *5.

From NYSNA’s initial grievance to this petition for review,

the dispute has traveled a long and winding road. The Hospital

denied the grievance on May 18, 2005, explaining that the

Columbia NPs were “not Hospital employees” and thus did “not

fall within the Hospital’s span of control nor [were] they

governed by the Hospital’s Policies and Procedures.” Letter

from Stacie M. Williams, Manager, Human Resources, N.Y. &

Presbyterian Hosp., to Roberta Murphy, Nursing Representative,

N.Y. State Nurses Ass’n (May 18, 2005) (Joint Appendix (JA)

1343). NYSNA then sought to arbitrate the grievance. A little

more than one year later, on August 31, 2006, NYSNA filed an

unfair labor practice charge with the NLRB against both the

Hospital and Columbia, alleging that they were “a single

employer or alter egos of one another” responsible for, inter

alia, “restrain[ing] and coerc[ing] nurse practitioners at [the

Hospital] in exercising their Section 7 rights by employing nurse

practitioners to work at [the Hospital] under terms and

conditions of employment different from those specified in the

collective bargaining agreement with NYSNA covering nurse

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practitioners who work at the hospital.” Charge Against

Employer, N.Y. Presbyterian Hosp., No. 2-CA-37868 (NLRB

Aug. 31, 2006). Acting pursuant to Board policy, the Board’s

Regional Director deferred consideration of NYSNA’s unfair

labor practice charge to the ongoing arbitration over NYSNA’s

grievance. See Collyer Insulated Wire, 192 N.L.R.B. 837

(1971); United Techs. Corp., 268 N.L.R.B. 557 (1984). Shortly

thereafter, Columbia informed NYSNA and the Hospital that, as

a non-signatory to the collective bargaining agreement, it did not

intend to participate in the arbitration.

NYSNA made a number of requests for information in

anticipation of the arbitration hearing. NYSNA twice issued

subpoenas duces tecum directing a representative of the Hospital

to appear at the arbitration hearing and produce documents

relating to non-Union NPs working on Hospital premises.

NYSNA then sent a letter to the Hospital asking for, inter alia,

documents between the Hospital and Columbia “concerning the

employment of nurse practitioners,” information about NPs

“designated as NYSNA represented employees” and information

about NPs “who are not designated as NYSNA represented

employees working on the premises of New York Presbyterian

Hospital.” Letter from Roberta Murphy, Nursing Representative,

N.Y. State Nurses Ass’n, to Stacie Williams, Director of Labor

Relations, N.Y. [&] Presbyterian Hosp. (Oct. 11, 2007)

(10/11/07 Letter) (JA 1599). NYSNA’s October 11, 2007 letter

forms the basis of the underlying charge at issue.

The arbitration hearing opened on October 25, 2007. No

transcript was made but the arbitrator apparently failed to decide

whether the Hospital was obligated to produce the requested

information. N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, at

*8. On October 31, 2007 NYSNA filed a second unfair labor

practice charge regarding information production, alleging that

the Hospital had “refused to bargain” by “failing to respond to

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an information request dated October 11, 2007.” Charge Against

Employer, N.Y. Presbyterian Hosp., No. 2-CA-38512 (NLRB

Oct. 31, 2007) (JA 359). On May 30, 2008, the General Counsel

of the NLRB (General Counsel) served the Hospital with a

complaint alleging that its failure to provide NYSNA with the

information requested in the Union’s October 11, 2007 letter

constituted a violation of section 8(a)(1) and (5) of the Act, 29

U.S.C. § 158(a)(1), (5).

An administrative law judge (ALJ) presided over a four-day

hearing. On December 8, 2008 the ALJ ruled in favor of the

General Counsel, finding the Hospital violated section 8(a)(1)

and (5). N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, at *3,

*15. The ALJ acknowledged that the Hospital had turned over

“most” of the information regarding NPs employed by the

Hospital, “except for identifying what shifts they worked.” Id.

at *9. But the ALJ rejected the Hospital’s claim that it lacked

information regarding the Columbia NPs. The information, the

ALJ stated, could be found in the paperwork required to

“credential[]” NPs—referring to the review process by which

the Hospital assigns privileges to work in specific medical care

departments of the Hospital. Id. at 10. The credentialing

paperwork included, inter alia, “the nurse practitioners’ names,

(including those on Columbia University’s payroll); the

departments or units where the nurse practitioners are assigned

to work; their job duties and their start dates at the hospital.” Id.

The ALJ recommended that the Hospital be required to turn over

information regarding the shifts worked by Hospital NPs and the

names, dates of hire and/or termination, job duties, departments

or areas of work, shifts and full- or part-time status of the

Columbia NPs working on Hospital premises. Id. at *15.

On April 29, 2009 a two-member panel of the Board

affirmed the ALJ’s conclusion that the Hospital violated section

8(a)(5) of the Act, 29 U.S.C. § 158(a)(5), and adopted the ALJ’s

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recommended order with the added requirement that the

Hospital produce “[a]ll documents between [the Hospital] and

Columbia University Medical Center and/or Trustees of

Columbia University concerning the employment of nurse

practitioners.” N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, at

*1–2.

Two days later, on May 1, 2009, we issued our decision in

Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, holding

that a panel of only two Board members could not validly

exercise the Board’s delegated authority. 564 F.3d 469, 472–73

(D.C. Cir. 2009), cert. denied, 130 S. Ct. 3498 (2010). On May

7, 2009 the Hospital filed a motion for reconsideration before

the Board, relying on Laurel Baye Healthcare to challenge the

authority of the two-member panel. N.Y. & Presbyterian Hosp.’s

Mot. for Reconsideration, N.Y. & Presbyterian Hosp., No.

2-CA-38512 (NLRB May 7, 2009). The Board denied the

motion on June 2, 2009. Order, N.Y. Presbyterian Hosp., No. 2-

CA-38512 (NLRB June 2, 2009). During the month of July

2009, the Hospital filed a petition for review of the Board’s

decision and order in this court, the Board cross-applied for

enforcement and we sua sponte held the case in abeyance. See

Order, N.Y. & Presbyterian Hosp. v. NLRB, No. 09-1200 (D.C.

Cir. July 16, 2009). After the United States Supreme Court held

that three Board members are required to constitute a Board

quorum in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635,

2639–42 (2010), the Board vacated its April 29, 2009 decision

and order—decided by only two members—and we dismissed

the pending petitions for review and enforcement. See Mot. of

NLRB for Dismissal of Case & Denial of All Outstanding

Mots., N.Y. & Presbyterian Hosp. v. NLRB, Nos. 09-1200 & 09-

1210 (D.C. Cir. Aug. 18, 2010); Order, N.Y. & Presbyterian

Hosp. v. NLRB, Nos. 09-1200 & 09-1210 (D.C. Cir. Sept. 29,

2010).

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The Board tried again on August 26, 2010. Acting with a

full three-member quorum, the Board issued a new decision and

order “affirm[ing] the [ALJ’s] rulings, findings, and

conclusions.” N.Y. Presbyterian Hosp., 355 N.L.R.B. No. 126,

at *1 (2010). The Board adopted and “incorporated . . . by

reference” its vacated decision and order from April 29, 2009

“to the extent and for the reasons stated in the [earlier]

decision.” Id.

The dispute took one final twist before it arrived here.

Under section 10(e) of the Act, the Board can petition for

enforcement of a Board order only in the judicial circuit or

district “wherein the unfair labor practice in question occurred

or wherein [the person committing the unfair labor practice]

resides or transacts business.” 29 U.S.C. § 160(e). Accordingly,

on August 27, 2010—one day after the three-member Board

issued its decision and order—the Board filed an application for

enforcement in the Second Circuit “because the unfair labor

practice occurred in New York, NY.” Application for

Enforcement, NLRB v. N.Y. Presbyterian Hosp., No. 10-3471

(2d Cir. Aug. 27, 2010). Under section 10(f) of the Act, by

contrast, an aggrieved person seeking to challenge a Board order

has the additional option of filing a petition for review “in the

United States Court of Appeals for the District of Columbia.” 29

U.S.C. § 160(f). Accordingly, the Hospital filed a petition for

review in this court on September 7, 2010. Petition for Review,

N.Y. & Presbyterian Hosp. v. NLRB, No. 10-1278 (D.C. Cir.

Sept. 7, 2010). The Board then moved in the Second

Circuit—with the Hospital’s consent—for voluntary dismissal

of its application for enforcement pursuant to Rule 42(b) of the

Federal Rules of Appellate Procedure in order to “expedite

resolution of this matter” by “proceed[ing] in the District of

Columbia Circuit.” Unopposed Mot. of NLRB to Dismiss,

¶ 3–4, NLRB v. N.Y. Presbyterian Hosp., No. 10-3471(2d Cir.

8

Sept. 10, 2010). The Second Circuit granted the Board’s motion

“with prejudice.”1 Order, NLRB v. N.Y. Presbyterian Hosp., No.

10-3471 (2d Cir. Sept. 14, 2010). The Board then filed a cross-

application for enforcement in this court, which we consolidated

with the Hospital’s petition for review.2 Cross-Application for

Enforcement, N.Y. & Presbyterian Hosp. v. NLRB, No. 10-1291

(D.C. Cir. Sept. 17, 2010); Order, N.Y. & Presbyterian Hosp. v.

NLRB, No. 10-1278 (D.C. Cir. Sept. 23, 2010).

II.

At issue is whether the Board correctly concluded that the

Hospital violated section 8(a)(5) of the Act, 29 U.S.C.

§ 158(a)(5), by refusing to produce the information the Union

requested. “We review the Board’s factual conclusions for

substantial evidence, defer to NLRB rules if they are rational

and consistent with the Act, and uphold the Board’s application

of law to facts unless arbitrary or otherwise erroneous.” Guard

Publ’g Co. v. NLRB, 571 F.3d 53, 58 (D.C. Cir. 2009) (quoting

Harter Tomato Prods. Co. v. NLRB, 133 F.3d 934, 937 (D.C.

Cir. 1998)) (internal quotation marks omitted); see also 29

1

The Hospital had also moved in the Second Circuit to dismiss

the Board’s application for enforcement on various substantive

grounds or, in the alternative, to transfer to the District of Columbia

Circuit. See Mot. to Dismiss, NLRB v. N.Y. & Presbyterian Hosp., No.

10-3471 (2d Cir. Sept. 8, 2010). The Second Circuit denied the

Hospital’s motion to dismiss as moot at the same time that it granted

the Board’s motion for voluntary dismissal. Order, NLRB v. N.Y.

Presbyterian Hosp., No. 10-3471 (2d Cir. Sept. 14, 2010).

2

Once a petition for review is filed pursuant to section 10(f), the

reviewing court acquires “the same jurisdiction” to enforce a Board

order “as in the case of an application by the Board under subsection

(e) of this section.” 29 U.S.C. § 160(f).

9

U.S.C. § 160(e) (“The findings of the Board with respect to

questions of fact if supported by substantial evidence on the

record considered as a whole shall be conclusive.”).

A. Relevance of Documents

Section 8(a)(5) imposes upon an employer the “duty to

bargain collectively,” Detroit Edison Co. v. NLRB, 440 U.S.

301, 303 (1979), and the employer’s duty “has long been

acknowledged to include a duty to supply a union with

‘requested information that will enable [the union] to negotiate

effectively and to perform properly its other duties as bargaining

representative.’ ” Oil, Chem. & Atomic Workers Local Union

No. 6-418 v. NLRB, 711 F.2d 348, 358 (D.C. Cir. 1983)

(alteration in original) (quoting Local 13, Detroit Newspaper

Printing & Graphic Commc’ns Union v. NLRB, 598 F.2d 267,

271 (D.C. Cir. 1979)). Because a union’s other duties include

the duty “to see to it that an employer meets its [collective

bargaining agreement] obligations,” Int’l Union of Elec., Radio

& Mach. Workers v. NLRB, 648 F.2d 18, 25 (D.C. Cir. 1980),

the employer’s duty to furnish information “extends to data

requested in order properly to administer and police a collective

bargaining agreement.” Oil, Chem. & Atomic Workers, 711 F.2d

at 358.

Nevertheless, the duty imposed by section 8(a)(5) is subject

to a minimum standard of relevance: “The union’s need and the

employer’s duty depend, in all cases, on the ‘probability that the

desired information [is] relevant, and that it [will] be of use to

the union in carrying out its statutory duties and

responsibilities.’ ” Id. at 359 (alterations in original) (quoting

NLRB v. Acme Indus. Co., 385 U.S. 432, 437 (1967)). The

requisite showing of relevance depends, in turn, on whether the

union is requesting information about employees who are part

of the bargaining unit or outside it. “For information about

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employees in the bargaining unit, it is presumed that the

requested information is relevant . . . , and the employer must

provide the information unless it can show the information is

irrelevant.” U.S. Testing Co. v. NLRB, 160 F.3d 14, 19 (D.C.

Cir. 1998). Here, the first portion of the Board’s

order—requiring the Hospital to furnish information regarding

“[t]he shifts worked of all nurse practitioners who are directly

employed by the [Hospital],”N.Y. Presbyterian Hosp., 354

N.L.R.B. No. 5, at *1—involved only bargaining unit employees

represented by NYSNA and therefore relevance is presumed.

With respect to employees outside the bargaining unit, on the

other hand, “the burden is on the union to demonstrate the

relevance of [the requested] information.” U.S. Testing Co., 160

F.3d at 19. We must therefore inquire further into the relevance

of the remaining portions of the Board’s order—which, in

requiring the Hospital to furnish information about “nurse

practitioners who are on the payroll of Columbia University”

and documents between the Hospital and Columbia “concerning

the employment of nurse practitioners,” N.Y. Presbyterian

Hosp., 354 N.L.R.B. No. 5, at *1–2, related to employees

outside the bargaining unit represented by NYSNA.

“A union’s bare assertion that it needs information . . . does

not automatically oblige the employer to supply all the

information in the manner requested.” Detroit Edison, 440 U.S.

at 314. In requesting information about employees outside the

bargaining unit, the union must explain to the employer why the

information is relevant. See ConAgra, Inc. v. NLRB, 117 F.3d

1435, 1439 (D.C. Cir. 1997) (where no presumption of relevance

applies, “union must demonstrate that any requested . . .

information is relevant . . . in order to require the employer to

turn it over”). Nevertheless, “ ‘the threshold for relevance is

low.’ ” Brewers & Maltsters, Local Union No. 6 v. NLRB, 414

F.3d 36, 45 (D.C. Cir. 2005) (quoting DaimlerChrysler Corp. v.

11

NLRB, 288 F.3d 434, 443 (D.C. Cir. 2002)). In particular, the

union need not demonstrate “the existence of some particular

controversy or the need to dispose of some recognized

problem.” Oil, Chem. & Atomic Workers, 711 F.2d at 361.

Rather, we apply a “discovery-type standard,” Acme, 385 U.S.

at 437, under which “ ‘[t]he fact that the information is of

probable or potential relevance is sufficient to give rise to an

obligation . . . to provide it.’ ” Oil, Chem. & Atomic Workers,

711 F.2d at 359 (ellipsis in original) (quoting Westinghouse

Elec. Corp., 239 N.L.R.B. 106, 107 (1978)).

There can be little dispute that NYSNA’s information

request is relevant to the question whether non-bargaining unit

NPs are performing bargaining unit work. If true, that practice

might well make out a violation of the “side letter” to the

Hospital’s collective bargaining agreement with NYSNA.

Because NYSNA’s representative duties include policing the

Hospital’s adherence to the collective bargaining agreement, see

Oil, Chem. & Atomic Workers, 711 F.2d at 358, the Union was

within its rights to demand the information and the Hospital was

obligated to provide it.

The Hospital contends that the requested information

regarding Columbia NPs is irrelevant to the Union’s original

grievance, which alleged only that the Hospital had “hired” non-

Union NPs to perform bargaining unit work. If the precise

wording of the grievance bounded the scope of the Hospital’s

duty to provide information, we might agree that the Hospital

had no obligation to furnish information regarding NPs not

“hired” by the Hospital. We have held, however, that “context

is everything” in evaluating the relevance of a union’s request

for information, U.S. Testing Co., 160 F.3d at 19, and we

consider the reasons proffered by the union at the time of its

request, see Gen. Elec. Co. v. NLRB, 916 F.2d 1163, 1169 (7th

Cir. 1990) (relevance “must be examined as of the time of the

12

demand and refusal”). The current dispute arises not from

NYSNA’s original grievance but from the request for

information contained in the Union’s October 11, 2007 letter.

Indeed, as the ALJ observed, the October 11, 2007 letter was

carefully phrased to cover documents about non-Union NPs

working on Hospital premises “irrespective of who was their

employer.” N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, at *7

(emphasis in original). The nub of NYSNA’s request for

information was the Union’s concern that non-Union NPs were

performing bargaining unit work in the Hospital. We believe

that NYSNA has adequately demonstrated the relevance of its

request for information.

The Hospital also challenges the Board’s order and decision

on various factual grounds. The Hospital claims, for instance,

that it had already furnished the information requested by

NYSNA about the shifts worked by bargaining unit NPs

employed by the Hospital. The record, however, belies the

Hospital’s assertion. When Roberta Murphy, NYSNA’s

representative, was asked during direct examination whether the

Union had “receive[d] any information to show the shift [sic]

worked for NYSNA represented employees,” she answered,

“No.” Hearing Tr. at 179, N.Y. Presbyterian Hosp., No. 2-CA-

38512 (NLRB Sept. 4, 2008) (Tr. 9/4). Although Murphy

admitted during cross examination that the Hospital produced

information about the “amount of shift differential that was

paid” to NPs at the Hospital, she maintained that the documents

showed only shift differential and “[n]ot the shifts worked.” Tr.

9/9 at 343–44. The Hospital cites no specific evidence to rebut

Murphy’s testimony but refers instead to portions of the record

detailing the information the Hospital did produce. There is no

dispute that the Hospital produced “most of the information”

requested by the Union about bargaining unit NPs. N.Y.

Presbyterian Hosp., 354 N.L.R.B. No. 5, at *9. The question

13

before us, however, is whether the Board’s order that the

Hospital be required to furnish information about shifts worked

by bargaining unit NPs is supported by substantial evidence. In

the absence of countervailing evidence, we conclude that it is.

The Hospital argues further that the credentialing files in its

custody are non-responsive to NYSNA’s request for information

about non-Union Columbia NPs. We disagree. The Director of

Operations of Columbia’s Department of Medicine testified that

a typical credentialing packet specifies the NP’s name,

anticipated start date at the Hospital, the unit of the Hospital in

which the NP is expected to perform duties, a “statement of

duties” and a collaborative practice agreement with a

supervising physician outlining the NP’s “job duties as it relates

to the position.” Tr. 9/4 at 199, 201–02, 243. Although it is

likely, as the Hospital argues, that the credentialing files do not

contain all of the information requested by NYSNA—such as

the Columbia NPs’ shifts or full- or part-time status—this

deficiency does not relieve the Hospital of its obligation to

produce whatever responsive information it does possess. The

Hospital’s reliance on cases in which the employer did not

possess the information being sought in any form, see, e.g.,

Detroit Typographical Union No. 18 v. NLRB, 216 F.3d 109,

121 (D.C. Cir. 2000), or in which the employer had already

furnished all of the information in its possession, see, e.g., Korn

Indus., Inc. v. NLRB, 389 F.2d 117, 123 (4th Cir. 1967), is

therefore misplaced.

B. Other Matters

The Hospital also argues that NYSNA sought the

information in order to force the Hospital to stop doing business

with Columbia in violation of section 8(e) of the Act, 29 U.S.C.

§ 158(e). Because the Hospital invoked section 8(e) as an

affirmative defense, it bore the burden of proving the elements

14

of a section 8(e) violation: there must be an “ ‘agreement,

express or implied, . . . to cease doing business with any other

person’ ” and the agreement must be “ ‘secondary’ . . . . [t]hat

is, . . . the agreement must be designed not solely to ‘improv[e]

the [primary employer’s] employees’ wages, hours, and working

conditions,’ but also ‘to satisfy union objectives elsewhere.’ ”

Sheet Metal Workers, Local Union No. 91 v. NLRB, 905 F.2d

417, 421 (D.C. Cir. 1990) (alterations in original) (quoting 29

U.S.C. § 158(e) and Nat’l Woodwork Mfrs. Ass’n v. NLRB, 386

U.S. 612, 643, 644 (1967)).

The Board’s rejection of the Hospital’s section 8(e)

argument meets the requisite threshold. It is well-established

that “[s]ection 8(e) does not . . . reach” contractual provisions

“encompassing ‘employees’ activity to pressure their employer

to preserve for themselves work traditionally done by them,’ ”

such as NYSNA’s side letter with the Hospital reserving

bargaining unit work for NYSNA-represented nurses. Int’l

Union of Painters & Allied Trades, Local Unions No. 970 &

1144 v. NLRB, 309 F.3d 1, 7 (D.C. Cir. 2002) (ellipsis added)

(emphasis omitted) (quoting Nat’l Woodwork Mfgs. Ass’n, 386

U.S. at 635). The ALJ found that NYSNA “was seeking to

enforce its contract and require the Hospital to assign unit work

to bargaining unit members who are employed by the Hospital.”

N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, at *13. The

Hospital offers no evidence to suggest NYSNA was acting with

any purpose other than to enforce the side letter.

We also reject the Hospital’s claim that the Board should

have deferred the dispute to arbitration. “[T]he Board has long

adhered to a policy of refusing to defer disputes concerning

information requests” and its decision whether or not to depart

from such policy “is squarely within the purview of the Board,

not of this court.” DaimlerChrysler Corp. v. NLRB, 288 F.3d

434, 444, 447 (D.C. Cir. 2002). The Hospital makes much of the

15

fact that two Board members expressed willingness to revisit the

Board’s deferral policy under certain circumstances. Both

members, however, agreed that deferral would be “inappropriate

in this case” because the arbitrator failed to rule on the Union’s

request for information, N.Y. Presbyterian Hosp., 354 N.L.R.B.

No. 5, at *2 n.3 (Member Schaumber); N.Y. Presbyterian Hosp.,

355 N.L.R.B. No. 126, at *1 n.3 (Member Hayes); see Tr. 9/9 at

315 (Murphy testimony) (arbitrator “refused to rule” on

information request).

Finally, we decline to reach the remaining arguments raised

by the Hospital. The Hospital argues that when the Second

Circuit granted the Board’s motion for voluntary dismissal “with

prejudice,” it rendered a final judgment that precludes, as a

matter of res judicata, the Board’s cross-application for

enforcement in this court. See Lawlor v. Nat’l Screen Serv.

Corp., 349 U.S. 322, 326 (1955) (“[U]nder the doctrine of res

judicata, a judgment ‘on the merits’ in a prior suit involving the

same parties . . . bars a second suit based on the same cause of

action.”). While we are skeptical that a voluntary

dismissal—even one “with prejudice”—operates as an

adjudication “on the merits” for the purpose of res judicata, see,

e.g., Agrolinz, Inc. v. Micro Flo Co., 202 F.3d 858, 861 (6th Cir.

2000) (under Florida and Tennessee law, “order of dismissal

‘with prejudice’ should be treated as a dismissal without

prejudice . . . when it is apparent that there had been no

adjudication of the substantive issues”), we need not decide the

issue because even if the Board were precluded from re-filing an

application for enforcement under section 10(e), the Hospital’s

petition for review pursuant to section 10(f) gives us the “same

jurisdiction” to enforce the Board’s order. 29 U.S.C. § 160(f).

Nor do we reach the Hospital’s argument that the Board

failed to engage in “reasoned decisionmaking”—as the

Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq.,

16

requires of Board decisions, Allentown Mack Sales & Serv., Inc.

v. NLRB, 522 U.S. 359, 374 (1998)—when the three-member

panel of the Board summarily adopted the vacated April 29,

2009 decision and order. Whatever the merits of the Hospital’s

claim, section 10(e) prevents us from considering the argument

raised for the first time on appeal. See 29 U.S.C. § 160(e) (“No

objection that has not been urged before the Board . . . shall be

considered by the court, unless the failure or neglect to urge

such objection shall be excused because of extraordinary

circumstances.”). The fact that the Board filed an application for

enforcement in the Second Circuit just one day after adopting

the decision and order does not constitute an “extraordinary

circumstance[],” as the Hospital contends, because the Hospital

still had up to twenty-eight days to move for reconsideration

before the Board, 29 C.F.R. § 102.48(d)(2), and the Board’s

overlapping jurisdiction remained intact so long as the record

had not been filed in the Second Circuit, 29 U.S.C. § 160(d), (e).

Nor did the Hospital’s motion for reconsideration of the Board’s

original April 29, 2009 decision and order, supra at 6, raise the

same objection the Hospital presses now—that the Board took

an “impermissible shortcut” by summarily adopting the vacated

decision and order. Pet’r’s Br. 32. Accordingly, the Hospital has

forfeited its APA challenge.

Section 10(e) also forecloses our consideration of the

Hospital’s argument that the Board’s order contained inadequate

safeguards for the Hospital’s confidential information. The

Hospital failed to preserve the issue by not raising it in

exceptions to the ALJ decision and recommended order. See 29

C.F.R. § 102.46(b)(2) (“Any exception . . . which is not

specifically urged shall be deemed to have been waived.”). The

closest reference was the Hospital’s exception to “requiring the

Hospital to pull information from credentialing files to disclose

to the Union,” Exceptions to Decision & Recommended Order

17

of ALJ, N.Y. & Presbyterian Hosp., No. 2-CA-38512, ¶ 65

(NLRB Jan. 20, 2009), but the language was too broad to put the

Board on notice of the Hospital’s specific interest in the

confidentiality of the information contained in the credentialing

files, cf. Quazite Div. of Morrison Molded Fiberglass Co. v.

NLRB, 87 F.3d 493, 497 (D.C. Cir. 1996) (exception to remedial

order “in its entirety” was “far too broad to preserve a particular

issue for appeal”).

For the foregoing reasons, we deny the Hospital’s petition

for review and grant the Board’s cross-application for

enforcement.

So ordered.