662 F.3d 1124
9th Cir.2011Background
- NLRB petitioned for enforcement of a Board ruling that Legacy Health violated § 8(a)(1) and (3).
- Legacy Health policy prohibited employees from holding bargaining unit and non-bargaining unit positions simultaneously; unions alleged violations after awareness.
- ALJ found the policy unlawful and recommended a remedial order directing hiring of three affected employees into part-time positions.
- Two-member Board initially affirmed with sua sponte modifications to the remedy intent.
- Supreme Court decision in New Process Steel v. NLRB invalidated the two-member Board, remanding for reconsideration; subsequent three-member Board issued a decision affirming and incorporating modifications.
- Board filed for enforcement on August 11, 2010; the case is reviewed for enforceability of the remedial order within § 10(e) constraints.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 10(e) bars reviewing Legacy Health’s objections to the remedial order | Legacy Health argues extraordinary circumstances due to timing; objections were effectively blocked | Board contends objections should have been raised earlier and that 10(e) forecloses review after enforcement petition | Yes, 10(e) bars review of objections to the remedial order |
| Whether the Board’s sua sponte modification affected the scope of review | Legacy Health could not object to the modified remedy | Board acted within its discretion to modify to conform with Board standards | Review foreclosed; objections are barred under 10(e) despite modification |
Key Cases Cited
- NLRB v. Advanced Stretchforming Int'l, Inc., 233 F.3d 1176 (9th Cir. 2000) (Board entitled to enforcement of unchallenged rulings; summary enforcement context)
- Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (1982) (section 10(e) waiver for objections; enforcement proceedings)
- Sambo's Restaurant, Inc., 641 F.2d 794 (9th Cir. 1981) (Board should be given first opportunity to address arguments)
- Int 1l Union of Painter & Allied Trades, Dist. 15, Local 159 v. J & R Flooring, Inc., 656 F.3d 860 (9th Cir. 2011) (Board should address arguments; review limited to authorized scope)
- N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d 723 (D.C. Cir. 2011) (concurrent jurisdiction between Board and court during enforcement)
- NLRB v. Cheney Cal. Lumber Co., 327 U.S. 385 (1946) (board action within scope of authority; deference in review)
- Marshall Field & Co. v. NLRB, 318 U.S. 253 (1943) (need for specific objections to preserve issues under 10(e))