929 F.3d 729
D.C. Cir.2019Background
- Temple University Hospital (Hospital) had long been subject to the Pennsylvania Labor Relations Board (PLRB); since 2006 the Union represented a certified unit of professional/technical employees under the PLRB.
- From 2005 onward the Union consistently filed representation petitions and unfair labor practice charges with the PLRB, arguing the NLRB lacked jurisdiction because the Hospital was a public employer under Pennsylvania law.
- In October 2015 the Union petitioned the NLRB to expand the bargaining unit; the Hospital objected, raising (inter alia) judicial estoppel, statutory-exemption (political subdivision), and NLRB-discretion arguments.
- An NLRB Acting Regional Director rejected the Hospital’s challenges, granted comity to the PLRB unit certification, and directed an election; the Union won and was certified for the expanded unit.
- The Hospital refused to bargain and the NLRB found it committed unfair labor practices; the Hospital petitioned for review. The D.C. Circuit held the NLRB misapplied New Hampshire v. Maine on judicial estoppel and remanded for the Board to reconsider whether judicial estoppel applies in NLRB proceedings and, if so, whether to invoke it.
Issues
| Issue | Plaintiff's Argument (Temple) | Defendant's Argument (NLRB/Union) | Held |
|---|---|---|---|
| Whether the Union is judicially estopped from invoking NLRB jurisdiction after earlier arguing to the PLRB that NLRB lacked jurisdiction | Union previously persuaded PLRB NLRB lacked jurisdiction; it cannot later assert NLRB jurisdiction | Judicial estoppel is inapplicable or inapplicable in agency proceedings; prior position concerned state forum and did not mislead | Court found the Board misapplied New Hampshire v. Maine factors and remanded for the Board to determine whether judicial estoppel is available and, if so, whether it should apply here |
| Whether the NLRB correctly applied New Hampshire v. Maine factors (in declining to invoke judicial estoppel) | N/A (challenged Board rationale) | Board assumed arguendo doctrine applies but concluded second and third factors (judicial acceptance & unfair advantage/detriment) were not met | Court held Board misapplied New Hampshire: it erred in requiring evidence of deception or but-for causation and inadequately explained absence of unfair detriment; remand required |
| Whether the NLRB properly asserted jurisdiction over the Hospital and granted comity to PLRB certification | Hospital: NLRB lacked authority/should be estopped; alternatively NLRB should decline jurisdiction | NLRB: Hospital not a political subdivision; comity to PLRB appropriate | Court did not resolve comity issue; remanded for Board to address judicial estoppel first (petition for review granted; enforcement denied and remanded) |
Key Cases Cited
- New Hampshire v. Maine, 532 U.S. 742 (2001) (sets out judicial estoppel factors and equitable nature of the doctrine)
- Garmon, 359 U.S. 236 (1959) (federal preemption of state jurisdiction over labor disputes under NLRA)
- United States v. Chenery Corp., 332 U.S. 194 (1947) (agency decisions must be upheld on the grounds the agency actually relied upon)
- Burlington Truck Lines v. United States, 371 U.S. 156 (1962) (courts may not accept post hoc rationalizations for agency action)
- NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675 (1951) (Board discretion to decline jurisdiction)
- Marshall v. Honeywell Tech. Sys. Inc., 828 F.3d 923 (D.C. Cir. 2016) (standard of review: discretionary invocation of judicial estoppel reviewed for abuse of discretion)
- Radio-Television News Directors Ass’n v. FCC, 184 F.3d 872 (D.C. Cir. 1999) (remand appropriate where agency explanation is inadequate)