Hobart v. Nat'l Labor Relations Bd.

Decision Date02 April 2012
Docket NumberNos. 10–2141,10–2209.,s. 10–2141
PartiesBRENTWOOD AT HOBART, Petitioner/Cross–Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross–Petitioner.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

ON BRIEF: David K. Montgomery, Jackson Lewis LLP, Cincinnati, Ohio, Michael J. Passarella, Jackson Lewis LLP, Stamford, Connecticut, for Petitioner. Linda Dreeben, Usha Dheenan, Gregory Lauro, National Labor Relations Board, Washington, D.C., for Respondent.Before: MOORE, SUTTON and DONALD, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

Employees of Brentwood at Hobart, an assisted-living facility in Hobart, Indiana, selected the Service Employees International Union as their collective-bargaining representative. Claiming that the union engaged in misconduct during the representation election, Brentwood challenges an order of the National Labor Relations Board requiring it to bargain with the union. After wrestling with an initial debate over venue, we deny Brentwood's petition and grant the Board's cross-petition to enforce the order.

I.

In August 2009, the union tried to organize the employees of Brentwood's Indiana facility. After it filed a representation petition, the Board scheduled an election at Brentwood for September 25, 2009. Brentwood employees voted in favor of the union by a wide margin—twenty-eight in favor and twelve against.

Brentwood objected to the election results a week later, claiming the union improperly distributed a flyer on September 18 that included photographs of twenty-six Brentwood employees without their consent. Using employees' photographs in union election materials without consent, the Board has held, may taint an election by conveying the false impression that the employees support the union. See Allegheny Ludlum Corp., 333 NLRB 734, 738 (2001). After an initial investigation, the Board's regional director ordered a hearing on the objections.

At the hearing, Brentwood tried to introduce a second flyer that the union distributed on August 14 and that also purported to contain photographs of unconsenting employees. The union's attorney objected to the admission of the August 14 flyer on relevance grounds because Brentwood had not mentioned the flyer in its objection. The hearing officer excluded it. A few weeks later, the hearing officer issued a written decision rejecting all of Brentwood's objections. She found no problem with the September 18 flyer because “the employees whose photographs appeared in the flyer ... were told what the picture[s were] for and gave their respective verbal and, in most cases, written consent.” App'x 69. Appealing to the Board, Brentwood argued that the hearing officer erred by excluding the August 14 flyer. The Board disagreed, explaining that because Brentwood's written objection “expressly alleged that the September 18 flyer was objectionable, the August 14 flyer is not reasonably encompassed within the scope of that objection,” and therefore the hearing officer “lack[ed] authority” to consider it. App'x 81. The Board certified the union as the exclusive collective-bargaining representative of Brentwood's employees.

Brentwood refused to recognize or bargain with the union, insisting its conduct had tainted the election. The union charged Brentwood with violating the National Labor Relations Act. See 29 U.S.C. § 158(a)(5). The Board agreed. Brentwood Assisted Living Cmty., 355 NLRB No. 149, 2010 WL 3406463 at *3 (Aug. 27, 2010). Brentwood filed a petition in our court challenging the Board's order, and the Board filed a cross-petition to enforce it. See 29 U.S.C. § 160(e), (f).

II.

The reader may wonder why a dispute over a union election in Indiana belongs in the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) as opposed to the Seventh (covering Illinois, Indiana and Wisconsin). We wondered the same thing.

Under the National Labor Relations Act, a company “aggrieved” by an order of the Board may obtain review in any federal court of appeals where “the unfair labor practice in question” occurred (the Seventh Circuit), in any court of appeals where the company “resides or transacts business” (the Seventh Circuit and possibly the Sixth) or in the D.C. Circuit (not the Seventh or the Sixth). 29 U.S.C. § 160(f). The Board likewise may file a petition to enforce one of its orders in any court of appeals where “the unfair labor practice in question occurred” or where the company subject to the order “resides or transacts business.” 29 U.S.C. § 160(e). (The latter provision says nothing about the D.C. Circuit.)

Neither Brentwood nor the Board challenges our authority to review their petitions. That concession matters so long as the requirements of § 160(e) and (f) spell out limitations on venue, as opposed to limitations on subject-matter jurisdiction. See Wachovia Bank v. Schmidt, 546 U.S. 303, 316, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006).

Subject-matter jurisdiction defines a court's “power to adjudicate,” while venue specifies “where judicial authority may be exercised” based on “convenience” to the “litigants.” Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167–68, 60 S.Ct. 153, 84 L.Ed. 167 (1939). The former asks “whether”—whether “the Legislature [has] empowered the court to hear cases of a certain genre?” The latter asks “where”—where should certain kinds of cases proceed? Wachovia Bank, 546 U.S. at 316, 126 S.Ct. 941.

The requirements of § 160(e) and (f) go to venue, not subject-matter jurisdiction. As geographic limitations, they ask the “where”—the venue—“question.” Wachovia Bank, 546 U.S. at 316, 126 S.Ct. 941. And the answer they give turns on classic venue concerns—“choosing a convenient forum.” Id. By generally permitting the action to proceed in the circuit where “the unfair labor practice in question” occurred or where the company “resides or transacts business,” § 160(e), (f), the provisions ensure that the company will not be forced to defend an action in a faraway circuit. Even the one exception to these general considerations confirms the statute's focus on convenience. The company also may choose to file a petition for review in the D.C. Circuit, the Board's home turf, § 160(f), but it is only the company that may invoke the exception. The Board may not file a petition for enforcement in the D.C. Circuit, unless that is where the unfair labor practice took place or where the company resides or transacts business. § 160(e); cf. Fed. Labor Relations Auth. v. Soc. Sec. Admin., 846 F.2d 1475, 1478 (D.C.Cir.1988).

In considering similar litigation-channeling provisions, the Supreme Court has uniformly treated them as venue, not jurisdictional, limitations. Most on point is Panhandle Eastern Pipe Line Co. v. Federal Power Commission, 324 U.S. 635, 65 S.Ct. 821, 89 L.Ed. 1241 (1945), where the Court considered the judicial-review provision of the Natural Gas Act. Like the National Labor Relations Act, the Natural Gas Act allows a company “aggrieved by an order issued by the [Federal Power] Commission [to] obtain a review of such order in the circuit court of appeals ... for any circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the [D.C. Circuit].” Pub. L. No. 75–688, § 19(b), 52 Stat. 821, 831 (1938) (codified as amended at 15 U.S.C. § 717r(b)). After the Eighth Circuit affirmed the Commission's order, an intervening party argued that the court lacked jurisdiction because the company did not have its principal place of business within the circuit. Panhandle E. Pipe Line, 324 U.S. at 638, 65 S.Ct. 821. The Court resisted, holding that this geographic limitation “relates to the convenience of the litigants” and thus “goes to venue not to jurisdiction.” Id. at 638–39, 65 S.Ct. 821. The Court came to a similar conclusion in reviewing similar provisions in other statutes. See Henderson v. United States, 517 U.S. 654, 666, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (Suits in Admiralty Act); Citizens & Southern Nat'l Bank v. Bougas, 434 U.S. 35, 35–38, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977) (National Bank Act); F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 124–25, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974) (Miller Act).

The Court's recent effort to bring “discipline to the use of the term ‘jurisdictional,’ Gonzalez v. Thaler, 565 U.S. ––––, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012), reinforces this conclusion. Under the new regime, the Court will treat “threshold limitations on a statute's scope ... as jurisdictional” only if Congress “clearly” says so. Arbaugh v. Y & H Corp., 546 U.S. 500, 515, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Judged by this “readily administrable bright[-]line” rule, id., the geographic limitations in § 160(e) and (f) fall on the non-jurisdictional side of the line. The relevant parts of § 160(e) and (f) do not speak in classic “jurisdictional terms.” See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). While “jurisdictional statutes speak to the power of the court rather than to the rights or obligations of the parties,” Landgraf v. USI Film Prods., 511 U.S. 244, 274, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), these laws speak to the authority of the parties to seek relief in the courts. The provisions say that [t]he Board shall have power to petition,” and an “aggrieved” company may obtain a review of [the Board's] order in,” any court of appeals meeting the geographic requirements. 29 U.S.C. § 160(e), (f). Nothing in either provision indicates that Congress meant to attach jurisdictional consequences to these geographic strictures.

Stern v. Marshall, 564 U.S. ––––, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), brings the point home. The Bankruptcy Code says that “personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending,...

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