National Labor Relations Board v. Legacy Health System

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR RELATIONS 

BOARD, No. 10-72478

Petitioner,

v.  NLRB No.

36-CA-10299

LEGACY HEALTH SYSTEM, OPINION

Respondent.



On Application for Enforcement of an Order of the

National Labor Relations Board

Submitted October 13, 2011*

Portland, Oregon

Filed November 21, 2011

Before: Marsha S. Berzon and N. Randy Smith,

Circuit Judges, and William E. Smith, District Judge.**

Opinion by Judge William E. Smith

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

**The Honorable William E. Smith, District Judge for the U.S. District

Court for the District of Rhode Island, sitting by designation.

20301

NLRB v. LEGACY HEALTH SYSTEM 20303

COUNSEL

Usha Dheenan, Nicole Lancia, National Labor Relations

Board, Washington, D.C. (on briefs), for the petitioner.

Adam S. Collier, Bullard Smith Jernstedt Wilson, Portland,

Oregon (on briefs), for the respondent.

OPINION

WILLIAM E. SMITH, District Judge:

The National Labor Relations Board (the Board) petitions

for enforcement of its order finding that Legacy Health Sys-

tem (Legacy Health) violated sections 8(a)(1) and (3) of the

National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1)

and (3). We hold that, under section 10(e) of the Act, we do

not have jurisdiction to hear Legacy Health’s exceptions to

20304 NLRB v. LEGACY HEALTH SYSTEM

the Board’s remedial order, and accordingly, we grant sum-

mary enforcement of the Board’s order.

Background

The following facts are gleaned from the Board’s findings

of fact, see generally Legacy Health System, 355 NLRB No.

76, 2010 WL 3159238 (Aug. 9, 2010); Legacy Health System,

354 NLRB No. 45, 2009 WL 2031023 (July 13, 2009), which

are not challenged by the parties.

Legacy Health is based in the Portland, Oregon area, and

it operates five hospitals, a research facility, and a number of

clinics and labs. In total, it employs more than 9,000 people.

It is party to seven different collective bargaining agreements

with various labor unions, including two collective bargaining

agreements with the Service Employees International Union,

Local 49 (the Union). It also has a number of positions and

departments that are not unionized.

For at least nine years, Legacy Health maintained an

unwritten policy precluding its employees from simulta-

neously holding bargaining unit positions and non-bargaining

unit positions. Employees were permitted to be employed by

Legacy Health in two positions, as long as both positions

were union positions or both positions were non-union posi-

tions. There is no evidence that Legacy Health prohibited

employees from holding positions that were represented by

separate bargaining units, and employees regularly held

employment with Legacy Health in more than one position.

Once the policy came to the Union’s attention, the Union

filed an unfair labor practice charge. Based on the Union’s

charge, on September 30, 2008, the Regional Director for

Region 19 of the Board issued a complaint and notice of hear-

ing, alleging that Legacy Health violated sections 8(a)(1) and

(3) of the Act by not allowing its employees to simultaneously

hold bargaining unit positions and non-bargaining unit posi-

NLRB v. LEGACY HEALTH SYSTEM 20305

tions. The Board identified in its complaint three employees

who had been affected by the policy.

On February 11, 2009, following a hearing and briefing, an

Administrative Law Judge (ALJ) issued a decision concluding

that Legacy Health’s policy violated sections 8(a)(1) and (3).

The ALJ recommended a remedial order that, in relevant part,

ordered Legacy Health to,

[w]ithin 14 days from the date of this Order, hire

[the three affected employees] in the part-time posi-

tions to which they would have been hired but for

[Legacy Health’s] enforcement of its unlawful hiring

policy, replacing the current occupants of those posi-

tions if necessary, and make them whole in the man-

ner set forth in the remedy section of this decision.

Legacy Health System, 354 NLRB No. 45, 2009 WL

2031023, at *11.

Thereafter, Legacy Health filed exceptions to the ALJ’s

decision. On July 13, 2009, a two-member panel of the Board

affirmed the ALJ’s rulings, findings, and conclusions, as

modified in its decision, and adopted a modified version of

the ALJ’s recommended order. See Legacy Health System,

354 NLRB No. 45, 2009 WL 2031023, at *1-3. In order “to

more closely conform to the Board’s standard remedial lan-

guage,” id. at *1 n.3, the Board made the following sua

sponte modification to the remedial order:

Within 14 days from the date of this Order, offer [the

three affected employees] the part-time positions for

which they applied and would have been hired but

for the unlawful enforcement of its hiring policy

against them or, if those positions no longer exist, to

substantially equivalent positions, without prejudice

to their seniority or any other rights or privileges

20306 NLRB v. LEGACY HEALTH SYSTEM

they would have enjoyed absent the discrimination

against them.

Id. at *3 (emphasis added).

On October 21, 2009, the Board filed an application for

enforcement with this court. On June 17, 2010, in New Pro-

cess Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2639-45 (2010), the

United States Supreme Court held that the Board did not have

authority to act as a two-member panel, thereby invalidating

by implication the Board’s July 13, 2009 decision in this case.

This case was remanded to the Board.

On August 9, 2010, a three-member panel of the Board

issued a decision affirming the ALJ’s rulings, findings, and

conclusions, and incorporating by reference the modifications

set forth in the July 13, 2009 decision. See Legacy Health Sys-

tem, 355 NLRB No. 76, 2010 WL 3159238. The panel also

adopted the order issued by the prior two-member panel, for

the reasons set forth in the July 13, 2009 decision. Id. Two

days later, on August 11, 2010, the Board’s General Counsel

applied to this court for enforcement of the order.

Discussion

On appeal, Legacy Health does not challenge the Board’s

conclusion that it violated sections 8(a)(1) and (3) of the Act.

The Board is, therefore, entitled to summary enforcement of

its order with respect to that ruling. NLRB v. Advanced

Stretchforming Int’l, Inc., 233 F.3d 1176, 1180 (9th Cir.

2000) (holding that the Board is entitled to summary enforce-

ment of unchallenged rulings).

For its part, Legacy Health takes issue only with the

Board’s remedial order, arguing that it does not reflect the

temporary nature of the employment positions at issue. The

Board retorts that this objection was not raised before the

Board and that, therefore, the argument is waived.

NLRB v. LEGACY HEALTH SYSTEM 20307

[1] In the absence of “extraordinary circumstances,” this

court does not have jurisdiction to hear arguments that were

not urged before the Board, pursuant to section 10(e) of the

Act, 29 U.S.C. § 160(e). See Woelke & Romero Framing, Inc.

v. NLRB, 456 U.S. 645, 665 (1982); see also Sever v. NLRB,

231 F.3d 1156, 1171 (9th Cir. 2000) (holding that argument

is waived where employee did not raise it in its exceptions to

ALJ’s decision). Moreover, to preserve an objection to the

Board’s remedial order, a party must object to the order with

sufficient specificity; it is not enough for a party to object to

the remedy generally. See Marshall Field & Co. v. NLRB, 318

U.S. 253, 255 (1943) (per curiam) (holding that petitioner’s

general objection to “each and every recommendation” was

not specific enough to preserve an issue under section 10(e));

see also NLRB v. Int’l Ass’n of Bridge, Structural, Ornamen-

tal & Reinforced Iron Workers Union, Local 378, 473 F.2d

816, 817 (9th Cir. 1973) (per curiam) (stating that party must

object with specificity to preserve issue for judicial review).

[2] While it is clear that Legacy Health did not object to

the ALJ’s recommended remedial order with adequate partic-

ularity before the Board, it contends that it could not have

objected before the Board because the Board sua sponte mod-

ified the ALJ’s recommended remedial order. Section 10(e),

however, also bars judicial review of a newly minted objec-

tion to a remedial order when a party fails to move for recon-

sideration of the Board’s sua sponte modification. See NLRB

v. Sambo’s Restaurant, Inc., 641 F.2d 794, 796 (9th Cir.

1981); see also Int’l Union of Painter & Allied Trades, Dist.

15, Local 159 v. J & R Flooring, Inc., 656 F.3d 860, 867 (9th

Cir. 2011) (noting that “the Board should have the first oppor-

tunity to apply its labor relations expertise to address a party’s

arguments, so that we may have the benefit of the Board’s

opinion when we review its decision”). Essentially, Legacy

Health contends that because the Board petitioned for

enforcement of the Board’s order only two days after the

order was entered, it was effectively boxed out of its opportu-

20308 NLRB v. LEGACY HEALTH SYSTEM

nity to seek reconsideration and that this presents just the kind

of extraordinary circumstance contemplated by section 10(e).

[3] We hold that, notwithstanding the Board’s petition for

enforcement only two days after its decision, the statutory bar

to considering Legacy Health’s objection holds firm. While it

is true that, once the Board applies for enforcement, this court

obtains jurisdiction over the case, it is also true that the Board

retains concurrent jurisdiction until the record is filed. See 29

U.S.C. § 160(e); see also N.Y. & Presbyterian Hosp. v. NLRB,

649 F.3d 723, 733 (D.C. Cir. 2011). We shared concurrent

jurisdiction with the Board from August 11, 2010, when the

Board filed its application for enforcement, through Septem-

ber 17, 2010, when the Board filed its certified list of the con-

tents of the record with this court. Therefore, Legacy Health’s

twenty-eight day window to file a motion for reconsideration

before the Board, see 29 C.F.R. § 102.48(d)(2), was unaf-

fected by the Board’s expeditious filing of its enforcement

petition, and accordingly does not constitute an extraordinary

circumstance. See N.Y. & Presbyterian Hosp., 649 F.3d at

733.

Although unnecessary to our conclusion, we note that Leg-

acy Health also failed to move for reconsideration of the

Board’s July 13, 2009 decision, which set forth the same

remedial order. See Legacy Health System, 354 NLRB No.

45, 2009 WL 2031023, at *2-3. After that decision was

issued, the Board petitioned for enforcement more than

twenty-eight days later, on October 21, 2009. Legacy Health

can hardly be heard to argue that the Board’s haste actually

frustrated its opportunity to file a motion for reconsideration

under those circumstances.

[4] Because section 10(e) forecloses our review of Legacy

Health’s objection, and the Board has not “patently traveled

outside the orbit of its authority” in adopting the remedial

order, see Int’l Union of Painter, 656 F.3d at 867 (quoting

NLRB v. LEGACY HEALTH SYSTEM 20309

NLRB v. Cheney Cal. Lumber Co., 327 U.S. 385, 388 (1946)),

the Board is entitled to enforcement of its order.

Conclusion

The Board’s application for enforcement is GRANTED.