Temple Univ. Hosp., Inc. v. Nat'l Labor Relations Bd.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 25, 2019 Decided July 9, 2019

No. 18-1150

TEMPLE UNIVERSITY HOSPITAL, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

TEMPLE ALLIED PROFESSIONALS, PENNSYLVANIA

ASSOCIATION OF STAFF NURSES AND ALLIED PROFESSIONALS,

INTERVENOR

Consolidated with 18-1164

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

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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 for the Court filed by Senior Circuit Judge

GINSBURG.

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

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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.

4

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.

5

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 certification of the technical-professional unit, and

instead to determine for itself whether the unit is “appropriate

for the purposes of collective bargaining” under the National

Labor Relations Act (NLRA). See 29 U.S.C. § 159(b).

An Acting Regional Director of the NLRB conducted a

hearing, after which he rejected all the Hospital’s jurisdictional

challenges and granted comity to the PLRB’s certification of

the bargaining unit; he therefore directed an election among the

petitioned-for employees. The Union won the election and the

Acting Regional Director certified it as the collective-

bargaining representative of the newly expanded technical-

professional unit.

Upon the Hospital’s request for review of the Acting

Regional Director’s decision, the NLRB agreed to review only

two questions: (1) whether it should exercise its discretion to

*

Even if an employer comes within the statutory jurisdiction of the

NLRB, the Board may exercise its discretion not to assert

jurisdiction. Amalgamated Ass’n of St., Elec. Ry. & Motor Coach

Emp. of Am., AFL v. NLRB, 238 F.2d 38, 40 (D.C. Cir. 1956) (citing

NLRB v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 684

(1951)). In 1972 the NLRB had declined to exercise jurisdiction over

the University. Temple University, 194 NLRB 1160, 1161 (1972).

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decline jurisdiction over the Hospital and, if not, then (2)

whether it should extend comity to the PLRB’s certification of

the technical-professional unit; over the dissent of Member

Miscimarra, it denied the request for review as to the other

issues the Hospital had raised, including whether the Union

should be judicially estopped from petitioning the NLRB.

NLRB Order Granting Review in Part and Invitation to File

Briefs at 1. In a footnote explaining its refusal to revisit the

issue of judicial estoppel, the Board said it was “assuming

arguendo that the doctrine of judicial estoppel … applies in

Board proceedings” and then went on to “affirm the Acting

Regional Director’s conclusion” that judicial estoppel was not

appropriate in this case. Id. at 2 n.2. Then, in December 2017,

the Board issued its Decision on Review and Order affirming

the Acting Regional Director’s ruling.

In order to contest the validity of the certification, the

Hospital refused to bargain with the Union. In response, the

Union filed an unfair labor practice charge with the NLRB,

alleging the Hospital had violated §§ 8(a)(1) and 8(a)(5) of the

NLRA, 29 U.S.C. §§ 158(a)(1) and 158(a)(5). The General

Counsel of the NLRB issued a complaint against the Hospital

and moved for summary judgment, which the NLRB granted

in May 2018. Temple University Hospital, 366 NLRB No. 88

(May 11, 2018). In its Decision and Order, the NLRB did not

address anew the Hospital’s jurisdictional or certification

arguments, stating that “all representation issues raised by the

Respondent were or could have been litigated in the prior

representation proceeding.” Id. The Hospital subsequently

filed a timely petition for review and the NLRB cross-applied

for enforcement of its order.

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II. Analysis

The Hospital raises two issues on appeal: First, whether

the NLRB properly asserted jurisdiction over the Hospital and

second, whether the NLRB properly granted comity to the

PLRB’s certification of the technical-professional unit. We do

not reach the second issue because we conclude the NLRB

erred in arriving at its jurisdictional holding.

The NLRA exempts “any State or political subdivision

thereof” from the definition of an “employer” within the

jurisdiction of the NLRB. 29 U.S.C § 152(2). In this case, the

Union maintains and the NLRB agrees that the Hospital is not

a “political subdivision” of the Commonwealth of

Pennsylvania, and hence is not exempt from the jurisdiction of

the NLRB. The Hospital contends the Union should have been

judicially estopped from taking that position before the NLRB

because the Union previously “convinc[ed] the PLRB that the

[NLRB] lacked jurisdiction” over the Hospital. That is, the

Union argued to the PLRB during the representation

proceedings in 2005 and 2006 — and implicitly if not explicitly

reiterated in the dozens of cases it has brought before the PLRB

since then — that the NLRB did not have jurisdiction over the

Hospital, and the PLRB agreed; yet, the Union now contends

the NLRB does have jurisdiction.

The doctrine of judicial estoppel is that “where a party

assumes a certain position in a legal proceeding, and succeeds

in maintaining that position, he may not thereafter, simply

because his interests have changed, assume a contrary position

….” New Hampshire v. Maine, 532 U.S. at 749. The doctrine

“protects the integrity of the judicial process,” Davis v. D.C.,

No. 17-7071, slip op. at 26 (D.C. Cir. June 7, 2019), by

“prohibiting parties from deliberately changing positions

according to the exigencies of the moment,” New Hampshire

8

v. Maine, 532 U.S. at 750 (quoting United States v. McCaskey,

9 F.3d 368, 378 (5th Cir. 1993)). The Supreme Court has said

there is no “exhaustive formula for determining the

applicability of judicial estoppel.” Id. at 751. Nevertheless,

the Court has set forth three key factors that “inform the

decision” whether “the balance of equities” favors applying the

doctrine 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.” Id. at 750-51 (cleaned up).

As a threshold matter, however, one might wonder

whether a doctrine known as “judicial” estoppel has force in

proceedings before the NLRB, which is an administrative

tribunal. Indeed, the Union and the NLRB raise this very

question. Although most circuits have applied judicial estoppel

in cases where the first proceeding was before an agency, see

Spencer v. Annett Holdings, Inc., 757 F.3d 790, 798 (8th Cir.

2014); Mathews v. Denver Newspaper Agency LLP, 649 F.3d

1199, 1210 (10th Cir. 2011); Trustees in Bankr. of N. Am.

Rubber Thread Co. v. United States, 593 F.3d 1346, 1354 (Fed.

Cir. 2010); Valentine-Johnson v. Roche, 386 F.3d 800, 811 (6th

Cir. 2004); Detz v. Greiner Indus., Inc., 346 F.3d 109, 118–19

(3d Cir. 2003); King v. Herbert J. Thomas Mem’l Hosp., 159

F.3d 192, 198 (4th Cir. 1998); Portela-Gonzalez v. Sec’y of the

Navy, 109 F.3d 74, 78 (1st Cir. 1997); Simon v. Safelite Glass

Corp., 128 F.3d 68, 72 (2d Cir. 1997); Rissetto v. Plumbers &

Steamfitters Local 343, 94 F.3d 597, 604 (9th Cir. 1996);

Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1427 (7th

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Cir. 1993), and no circuit has declined to do so, whether a

nonjudicial tribunal may itself invoke judicial estoppel appears

to be an issue of first impression. But cf., e.g., Doe v. Dep’t of

Justice, 123 M.S.P.R. 90, 94–96 (2015) (doctrine applied by

the Merit Systems Protection Board); In re Time Warner Cable,

21 FCC Rcd. 9016, 9020 (2006) (doctrine applied by the

Federal Communications Commission).

Here, the NLRB held that even “assuming arguendo that

the doctrine of judicial estoppel … applies in Board

proceedings,” the New Hampshire v. Maine factors did not

counsel applying it in this case. NLRB Order Granting Review

in Part and Invitation to File Briefs at 2 n.2. Without

addressing the first factor, the Board adopted the Acting

Regional Director’s conclusion that the second and third

factors were not present, and hence declined to apply the

doctrine. It explained:

We agree with the Acting Regional Director’s

findings that processing the petition will not confer an

unfair advantage on the Petitioner or impose an unfair

detriment on the Employer; there is no evidence that

the Petitioner misled the PLRB, and there is an

inadequate basis to believe the PLRB would have

reached a different result had the Petitioner taken

some contrary position before the PLRB.

Id.

On appeal, “heeding the Supreme Court’s description of

judicial estoppel as ‘an equitable doctrine invoked by a court at

its discretion,’” we review the decision to invoke (or not to

invoke) judicial estoppel for abuse of discretion. Marshall v.

Honeywell Tech. Sys. Inc., 828 F.3d 923, 927 (D.C. Cir. 2016)

(quoting New Hampshire v. Maine, 532 U.S. at 750). At the

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same time, we must confine our review to the adequacy of the

reasons given by the Board, as “courts may not accept appellate

counsel’s post hoc rationalization for agency action; Chenery

requires that an agency’s discretionary order be upheld, if at

all, on the same basis articulated in the order by the agency

itself.” Erie Brush & Mfg. Corp. v. NLRB, 700 F.3d 17, 23

(D.C. Cir. 2012) (quoting Burlington Truck Lines, Inc. v.

United States, 371 U.S. 156, 168–69 (1962), and citing SEC v.

Chenery, 332 U.S. 194, 196 (1947)); see also DHL Express,

Inc. v. NLRB, 813 F.3d 365, 371 (D.C. Cir. 2016) (“deference

is not warranted where the Board fails to adequately explain its

reasoning”) (cleaned up).

Notwithstanding the discretionary nature of the NLRB’s

determination whether to invoke judicial estoppel, we must

overturn its decision because, as explained below, the agency

misapplied the teaching of New Hampshire v. Maine. In so

doing, we do not answer the question whether judicial estoppel

applies in NLRB proceedings. The Board merely assumed

arguendo the doctrine applies. Having rejected the Board’s

analysis of the New Hampshire v. Maine factors, we think it

appropriate for the Board to consider in the first instance

whether judicial estoppel is applicable in its proceedings. †

†

We here clarify a point to guide the agency’s decision on remand:

Subsumed within the Board’s assumption is the argument, advanced

by the Union and by the Acting Regional Director, that the NLRB

“will not bar a party … from invoking rights under the [NLRA] based

on a position the [party] took in a proceeding in which the [NLRB]

was not a party.” Intervenor Br. 12; RD Dec. at 12 (“as the Board

was not a party to the prior proceeding, it is not precluded from

determining jurisdiction”); see also RD Dec. at 8. The relevant

“parties” in the judicial estoppel analysis do not include the forum.

Relatedly, to the extent the NLRB has required identity of the parties

as a prerequisite for judicial estoppel, it appears to have confused

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Although the NLRB did not expressly say so, we agree

with the Acting Regional Director that the first factor —

whether the Union’s current position is “clearly inconsistent”

with its earlier position — is obviously present here, as the

Board’s counsel on appeal appears to concede. See RD Dec. at

12; Appellee Br. 42. As the Acting Regional Director put it,

“The Hospital is correct that [the Union] argued to the PLRB

that the [NLRB] did not have jurisdiction, that the PLRB

accepted this argument, and that [the Union] currently contends

that the [NLRB] has jurisdiction over the Hospital.” RD Dec.

at 12.

As for the second factor in New Hampshire v. Maine —

whether the Union “succeeded in persuading” the prior tribunal

— the NLRB was not satisfied because “there is no evidence

that the Petitioner misled the PLRB, and there is an inadequate

basis to believe the PLRB would have reached a different result

had the Petitioner taken some contrary position before the

PLRB.” NLRB Order Granting Review in Part and Invitation

to File Briefs at 2 n.2. This explanation reflects a

misunderstanding of the second factor. To begin, nothing in

New Hampshire v. Maine suggested the party’s inconsistent

position must be a but-for cause of the first tribunal’s decision.

New Hampshire and Maine had previously litigated the

location of part of the border between them, which had been

“fixed in 1740 by decree of King George II of England” as “the

Middle of the [Piscataqua] River.” 532 U.S. at 746. Because

judicial estoppel with issue preclusion. See, e.g., RD Dec. at 8, 12

(citing In Re Lincoln Ctr. for the Performing Arts, 340 NLRB 1100,

1127 (2003)). Judicial estoppel is “a discrete doctrine” serving a

different purpose than issue preclusion. See New Hampshire v.

Maine, 532 U.S. at 748–49. If one party is taking a position

inconsistent with its position in a prior proceeding, it matters not

whether the adverse party was the same in both proceedings.

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New Hampshire had agreed in the 1970s that the words

“Middle of the River” meant “the middle of the Piscataqua

River’s main channel of navigation,” the Supreme Court

judicially estopped it from asserting in 2001 that “the boundary

runs along the Maine shore.” Id. at 745. Notably, the Court

did not analyze whether or how New Hampshire’s position had

affected its decision in the first proceeding; it was enough that

the Court had adopted the interpretation urged by New

Hampshire. See id. at 752.

Similarly, there is no independent requirement of evidence

that the party changing its position had actively misled the first

tribunal. In New Hampshire v. Maine the Court said “judicial

acceptance of an inconsistent position in a later proceeding”

may itself be enough to “create the perception that either the

first or the second court was misled.” Id. at 750; see also id. at

755 (“We cannot interpret ‘Middle of the River’ in the 1740

decree to mean two different things along the same boundary

line without undermining the integrity of the judicial process”).

Hence, evidence of deception is not necessary to perfect the

Hospital’s call for judicial estoppel. Of course, that an

inconsistency arose out of “inadvertence or mistake” might be

a valid reason for declining to apply judicial estoppel, see id. at

753, but the NLRB understandably did not rely upon that

possible exception on the facts of this case.

With regard to the third factor, the Hospital argued it had

incurred an “unfair detriment” as a consequence of the Union

having previously sought the PLRB’s jurisdiction because, 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 under the PERA. The Board adopted the Acting

Regional Director’s conclusion that the unfair detriment

alleged by the Hospital was “not the type of detriment or

advantage about which the Supreme Court was concerned in

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New Hampshire v. Maine.” RD Dec. at 12. Neither the Acting

Regional Director nor the Board gave any explanation of why

the Hospital’s proffer fell short, nor did they specify what

“type” of detriment or advantage would suffice. The NLRB’s

appellate counsel attempts to clarify that there can be no unfair

advantage or detriment because “the Union and Hospital were

on the same side, both arguing that the PLRB had jurisdiction.”

Yet, the same was true in New Hampshire v. Maine; during

their first litigation over their border, New Hampshire and

Maine had agreed upon the meaning of the “Middle of the

River.” See 532 U.S. at 752. We therefore hold the NLRB

failed adequately to explain its determination that there was no

unfair advantage or detriment here. See Radio-Television News

Directors Ass’n v. FCC, 184 F.3d 872, 888 (D.C. Cir. 1999)

(“There is a fine line between agency reasoning that is so

crippled as to be unlawful and action that is potentially lawful

but insufficiently or inappropriately explained. Remand is

generally appropriate when there is at least a serious possibility

that the agency will be able to substantiate its decision given an

opportunity to do so.”) (cleaned up).

We also reject two other proffered justifications for the

Board’s decision. First, the Union contends that judicial

estoppel applies only to assertions “of fact rather than law or

legal theory.” Intervenor Br. 11 (quoting Lowery v. Stovall, 92

F.3d 219, 224 (4th Cir. 1996)). Second, the Union and the

Board argue that “there is an exception to … judicial estoppel

when it comes to jurisdictional facts or positions.” Intervenor

Br. 11 (quoting Whiting v. Krassner, 391 F.3d 540, 544 (3d Cir.

2004)); see Appellee Br. 40 (citing Hansen v. Harper

Excavating, Inc., 641 F.3d 1216, 1227–28 (10th Cir. 2011)).

Because the Board did not rest its decision on either

proposition, however, we cannot sustain its decision on either

basis. Moreover, we seriously doubt the correctness of the

former, as New Hampshire v. Maine itself concerned New

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Hampshire’s change in position on a legal issue, viz., the proper

interpretation of the words “Middle of the River” in the 1740

decree of King George II. 532 U.S. at 746.

Having found the NLRB’s analysis of the New Hampshire

v. Maine factors invalid, nothing remains of its reasons for

refusing to apply judicial estoppel. We therefore remand the

case for the Board to determine in the first instance whether

judicial estoppel is available in NLRB proceedings. If the

Board determines that judicial estoppel is available in

appropriate circumstances, then under New Hampshire v.

Maine it will next have to determine — and adequately explain

— whether the Hospital has made a sufficient showing of

unfair advantage or unfair detriment and whether the ultimate

“balance of equities” favors its application on the facts of this

case.

III. Conclusion

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

for review, deny the Board’s cross-application for

enforcement, and remand the case to the Board for proceedings

consistent with this opinion.

So ordered.