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Judicial Estoppel Unavailable to Compel NLRB to Relinquish its Jurisdiction: NLRB
Practical Law Legal Update w-030-5900 (Approx. 4 pages)
Judicial Estoppel Unavailable to Compel NLRB to Relinquish its Jurisdiction: NLRB
by Practical Law Labor & Employment
| Law stated as of 08 Jul 2022 • USA (National/Federal) |
In Temple University Hospital, the National Labor Relations Board (NLRB) held that the doctrine of judicial estoppel is unavailable in NLRB proceedings as a basis for compelling the NLRB to surrender its jurisdiction.
On April 12, 2021, in Temple University Hospital, the panel (Board) heading the NLRB's judicial functions:
- Held that the doctrine of judicial estoppel is unavailable in NLRB proceedings as a basis for compelling the Board to surrender its jurisdiction. In support of its determination, the Board reasoned that:
- federal courts generally have declined to apply judicial estoppel to create or defeat jurisdiction (Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1227-28 (10th Cir. 2011); City of Colton v. Am. Promotional Events, Inc.-West, 614 F.3d 998, 1006 n.6 (9th Cir. 2010), cert. denied 562 U.S. 1062 (2010); Whiting v. Krassner, 391 F.3d 540, 544 (3d Cir. 2004), cert. denied 545 U.S. 1131 (2005); Da Silva v. Kinsho Intl. Corp., 229 F.3d 358, 361 (2d Cir. 2000));
- the employer hospital in the instant case undisputedly falls within the definition of "employer" under Section 2(2) of the NLRA, and is not otherwise excluded from the Board's jurisdiction (29 U.S.C. § 152(2));
- federal labor policy weighs heavily against allowing judicial estoppel to limit or otherwise restrict the Board's jurisdiction, as articulated in Section 10(a) of the NLRA (29 U.S.C. § 160(a) (stating that the Board's power to prevent unfair labor practices "shall not be affected by any other means of adjustment or prevention that has been or may be established by . . . law"); and
- in the past, the Board has asserted jurisdiction over other nonprofit hospitals notwithstanding their prior submission to the jurisdiction of state labor relations authorities.
- Expressly did not foreclose the possibility that judicial estoppel may be appropriately applied in a future case under different circumstances.
- Reaffirmed its conclusions in the instant case that:
- the Board properly asserted jurisdiction over the employer; and
- the employer violated Section 8(a)(5) and (1) of the NLRA by refusing to recognize and bargain with the union.
The Board's decision in Temple University marks the first time that the Board has squarely addressed the availability of judicial estoppel in NLRB proceedings. Any appeal will be an opportunity for the creation of a broader standard applicable to other quasi-judicial federal tribunals that may seek to invoke this judicial doctrine in administrative proceedings.
The decision comes on remand from the US Court of Appeals for the District of Columbia Circuit (Temple Univ. Hosp. v. NLRB, 929 F.3d 729 (D.C. Cir. 2019); see Legal Update, DC Circuit Remands to NLRB to Revise Incorrect Judicial Estoppel Analysis and Reconsider Extension of Jurisdiction to PA Hospital).
UPDATE:
On July 8, 2022, the D.C. Circuit denied Temple University's petition for review and granted the NLRB's cross-petition for enforcement of the NLRB's decision in this case. The court concluded that the Board did not abuse its discretion in determining that judicial estoppel is unavailable in cases in which the NLRB's jurisdiction is at issue. (Temple Univ. Hosp., Inc. v. NLRB, , at *4 (D.C. Cir. July 8, 2022).)