NLRB v. Salem Hospital Corp , 669 F. App'x 80 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 14-3622, 14-4440, 15-1353
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NATIONAL LABOR RELATIONS BOARD,
Petitioner
v.
SALEM HOSPITAL CORPORATION,
a/k/a The Memorial Hospital of Salem County,
Respondent
_____________
On Petitions for Enforcement of Orders of the National Labor Relations Board
(NLRB Nos. 04-CA-097635, 04-CA-64458, 04-CA-073474)
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Submitted under Third Circuit LAR 34.1(a)
September 12, 2016
Before: CHAGARES, GREENAWAY, JR., and RESTREPO, Circuit Judges
(Filed: September 29, 2016)
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OPINION ∗
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∗
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
CHAGARES, Circuit Judge.
The National Labor Relations Board (“the Board”) petitions for enforcement of
three unfair-labor-practices orders against respondent Salem Hospital Corporation
(“Salem”). We will grant the Board’s petitions.
I.
Because we write exclusively for the parties, we set forth only those facts
necessary to our disposition.
Salem operates an acute-care facility in Salem, New Jersey. In September 2010,
nurses employed by Salem elected Health Professionals and Allied Employees (“the
Union”) as their collective bargaining representative. In August 2011, the Board certified
the Union, but Salem refused to bargain with the Union. The Board found that Salem’s
refusal to bargain with the Union was unlawful, and Salem sought review in the United
States Court of Appeals for the District of Columbia Circuit. Salem argued that the
Board had denied it a fair opportunity to contest the certification of the Union. The court
rejected Salem’s arguments and enforced the Board’s order, holding that any procedural
errors in the Board’s handling of the case did not prejudice Salem. Salem Hosp. Corp. v.
NLRB, 808 F.3d 59, 62 (D.C. Cir. 2015).
While the case remained pending before the United States Court of Appeals for
the District of Columbia Circuit, the newly certified Union had been making demands on
Salem: demanding to bargain and requesting employee records in August 2011,
demanding to bargain and requesting information about disciplinary policies in October
2011, and demanding to bargain and requesting information about a revised dress code in
2
May 2012 and February 2013. Salem ignored each demand, and in three separate orders,
the Board found that Salem’s refusals to engage with the Union were unlawful and
directed Salem to remedy the situation. Salem Hosp. Corp., 358 NLRB No. 95 (July 31,
2012); Salem Hosp. Corp., 359 NLRB No. 82 (Mar. 22, 2013); Salem Hosp. Corp., 360
NLRB No. 95 (Apr. 30, 2014). 1 The Board has petitioned this Court to enforce the
orders. 2
II.
The Board exercised jurisdiction under 29 U.S.C. § 160(a)–(c), and we have
jurisdiction under 29 U.S.C. § 160(e). “[O]ur standard of review of orders of the Board is
highly deferential.” Trimm Assocs., Inc. v. NLRB, 351 F.3d 99, 102 (3d Cir. 2003).
“We have plenary review over questions of law and the Board’s application of legal
precepts, but defer to the Board’s reasonable interpretation of the [National Labor
Relations] Act.” Id. “We accept the Board’s factual findings if they are supported by
substantial evidence on the record as a whole.” Id.
III.
1
The first two orders were reissued by new Board panels after the Supreme Court
held in NLRB v. Noel Canning, 134 S. Ct. 2550, 2578 (2014), that recess appointments
to the Board were invalid. Salem Hosp. Corp., 361 NLRB No. 61 (Sept. 30, 2014);
Salem Hosp. Corp., 361 NLRB No. 110 (Nov. 25, 2014).
2
The Board filed the enforcement petitions in this Court in August 2014, November
2014, and February 2015, respectively. This Court consolidated the petitions in February
2016.
3
Salem devotes its entire brief to the same arguments litigated before the Court of
Appeals for the District of Columbia Circuit: that the certification of the Union as the
collective bargaining representative is invalid because, in various respects, Salem was
denied a fair opportunity to challenge it during Board proceedings. The Court of Appeals
for the District of Columbia Circuit has already rejected those arguments in issuing its
final judgment, which precludes Salem from relitigating them before us. See, e.g.,
Raytech Corp. v. White, 54 F.3d 187, 193 & n.7 (3d Cir. 1995); Glover Bottled Gas
Corp. v. NLRB, 47 F.3d 1230, 1231 (D.C. Cir. 1995) (per curiam). Although Salem
could conceivably have raised new and substantially different grounds for invalidating
the three unfair-labor-practices orders, it has forfeited any such arguments by failing to
raise them in its opening brief. In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016).
IV.
For the foregoing reasons, we will grant the Board’s petitions for enforcement.
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