N.L.R.B. v. Chapa De Indian Health Program, Inc.

• Decision Date: 16 January 2003
• Docket Number: No. 02-15576.,No. 02-15610.,02-15576.,02-15610.
• Citation: 316 F.3d 995
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, and Teamsters Local 228, Intervenor-Appellant, v. CHAPA DE INDIAN HEALTH PROGRAM, INC.; Carol Ervin, Susan Thorne, Respondents-Appellees. National Labor Relations Board, Petitioner-Appellee, and Teamsters Local 228, Intervenor-Appellant, v. Chapa De Indian Health Program, Inc.; Carol Ervin, Susan Thorne, Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

316 F.3d 995

NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, and Teamsters Local 228, Intervenor-Appellant, v. CHAPA DE INDIAN HEALTH PROGRAM, INC.; Carol Ervin, Susan Thorne, Respondents-Appellees.

National Labor Relations Board, Petitioner-Appellee, and Teamsters Local 228, Intervenor-Appellant, v. Chapa De Indian Health Program, Inc.; Carol Ervin, Susan Thorne, Respondents-Appellants.

No. 02-15576.

No. 02-15610.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 3, 2002.

Filed January 16, 2003.

David A. Rosenfeld, Van Bourg, Weinberg, Roger & Rosenfeld, Oakland, CA, for the intervenor-appellant.

Margery E. Lieber and Jennifer R. Taylor, National Labor Relations Board, Washington, D.C., for the petitioner-appellee.

Mark E. Merin, Dickstein & Merin, Sacramento, CA, for the respondents-appellees-cross-appellants.

Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, Senior District Judge, Presiding.

Before RYMER, THOMAS, and SILVERMAN, Circuit Judges.

RYMER, Circuit Judge.

Chapa-De Indian Health Program, Inc. (Chapa-De) appeals the district court's order enforcing National Labor Relations Board (NLRB) subpoenas. Chapa-De challenged the NLRB's jurisdiction, but the district court held that jurisdiction was not "plainly lacking." We agree, and affirm.

Teamsters Local 228 (Teamsters), which sought, but was denied, leave to intervene in the district court solely to support the NLRB's position that its subpoenas should be enforced, also appeals. Given that we uphold enforcement of the subpoenas, its appeal is moot.

I

Chapa-De is a "tribal organization" under the Indian Self-Determination Act (ISDA). 25 U.S.C. § 450b(l). It is authorized under a sanctioning resolution made by the Rumsey Indian Rancheria, a federally recognized tribe, to contract with Indian Health Services (IHS) on behalf of the Rumsey Tribe to provide free health services to qualifying Native Americans in a four-county area in Northern California. Chapa-De is controlled by a board of directors, none of whom is a member of the Rumsey Tribe. There are Rumsey Tribe members on its Health Advisory Committee. Chapa-De operates four facilities, all located off tribal land. Approximately 40% of the patients it serves are non-Native American, and 55% of Chapa-De's non-professional staff members are non-Native American. In addition to the federal money it receives from IHS pursuant to the ISDA, Chapa-De receives payment for its services through MediCal and from private insurers.

On October 6, 2000, the Teamsters petitioned the NLRB for certification to represent Chapa-De's Auburn and Grass Valley medical support staff. Chapa-De asserted that the NLRB lacked jurisdiction because Chapa-De has sovereign immunity and because Chapa-De is an extension of the United States government as an ISDA contractor. Meanwhile, the Teamsters filed unfair labor practice charges against Chapa-De with the Board. On August 31, 2001, the NLRB issued a consolidated administrative unfair labor practice complaint based on the union's charges, which Chapa-De answered by raising a number of defenses, including the Board's lack of jurisdiction. Chapa-De asked the Board to sever and decide the jurisdictional issue prior to considering the merits of the complaint. The ALJ denied Chapa-De's motion.

The NLRB issued a subpoena duces tecum to Chapa-De, a subpoena ad testificandum to Carol Ervin, Chapa-De's Chief Executive Director, and a subpoena ad testificandum to Susan Thorne, a member of Chapa-De's management staff. At the Teamsters' request, the Board also issued a subpoena duces tecum to Chapa-De. Chapa-De filed a petition with the ALJ to revoke the subpoenas on the ground that the NLRB lacked jurisdiction. The ALJ concluded that the Board's assertion of jurisdiction was proper pursuant to Yukon-Kuskokwim Health Corp., 328 N.L.R.B. No. 101, 1999 WL 419507 (1999), and Sac & Fox Industries, Ltd., 307 N.L.R.B. 241, 1992 WL 90688 (1992).

When Chapa-De, Ervin, and Thorne refused to comply with the subpoenas, the NLRB sought enforcement in the district court pursuant to 29 U.S.C. § 161(2). The Teamsters sought, but were denied, leave to intervene. The court held that the Board's jurisdiction was not plainly lacking, and ordered the subpoenas enforced.

Chapa-De and the Teamsters timely appealed.

II

Both parties agree that the standard that applies at the enforcement stage is whether the NLRB "plainly lacks" jurisdiction. EEOC v. Karuk Tribe Housing Auth., 260 F.3d 1071 (9th Cir.2001). As we noted in Karuk Tribe, [j]udicial intervention prior to an agency's initial determination of its jurisdiction is appropriate only where: (1) there is clear evidence that exhaustion of administrative remedies will result in irreparable injury; (2) the agency's jurisdiction is plainly lacking; and (3) the agency's special expertise will be of no help on the question of its jurisdiction.

Id. at 1077 (quoting Marshall v. Burlington N., Inc., 595 F.2d 511, 513 (9th Cir.1979)).¹ There can be no serious dispute that the irreparable injury and lack of expertise prongs are met, Karuk Tribe, 260 F.3d at 1077, therefore we turn to the jurisdictional issue.

III

Chapa-De contends that the National Labor Relations Act, 29 U.S.C. §§ 151-169 (NLRA), is not a statute of general applicability and does not apply to Indian tribes because the NLRA has exemptions. But exemptions alone are not dispositive. The issue is whether the statute is generally applicable, not whether it is universally applicable. We have previously held that other federal statutes that contain exemptions are nevertheless generally applicable. See, e.g., Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1115 (9th Cir.1985) (the Occupational Safety and Health Act (OSHA)); Lumber Indus. Pension Fund v. Warm Springs Forest Prods. Indus., 939 F.2d 683, 685 (9th Cir.1991) (the Employee Retirement Income Security Act (ERISA)); United States v. Baker, 63 F.3d 1478, 1484-85 (9th Cir.1995) (the Contraband Cigarette Trafficking Act (CCTA)). Regardless, Chapa-De argues that we should follow the Tenth Circuit's decision in NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir.2002), which held that the NLRA did not preempt tribal governments from enacting a right-to-work ordinance. However, Pueblo of San Juan is not persuasive because the court there expressly noted that the "general applicability of federal labor law is not at issue." Id. at 1191. In any event, the NLRA is not materially different from the statutes that we have already found to be generally applicable. Its exemptions are relatively limited (Chapa-De points only to the fact that the NLRA exempts public sector employers and has been construed not to apply to church-controlled and operated schools),² and it is clear that the statute's reach was intended to be broad. NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 9 L.Ed.2d 279 (1963) ("Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause."). We conclude that just as OSHA, ERISA and CCTA are statutes of general applicability, so too is the NLRA.

Even if the NLRA is a statute of general application, Chapa-De argues that it still would not apply to Indian tribes or to their tribal organizations because the statute does not expressly state that it does. However, the Supreme Court held in Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 120, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960), that "general Acts of Congress apply to Indians ... in the absence of a clear expression to the contrary." Chapa-De dismisses this as dicta, but we have explicitly adhered to the Tuscarora rule in Coeur d'Alene, 751 F.2d at 1115, and Karuk Tribe, 260 F.3d at 1078, although we recognize exceptions to it. Chapa-De also relies on special canons of construction, which require that statutes be construed for the benefit of Indian interests, in support of its position that even a statute that is generally applicable does not apply to Indian tribes when the statute is silent on the subject. This reliance is misplaced for the same reason. To accept Chapa-De's position would be effectively to overrule Coeur d'Alene, which, of course, this panel cannot do. See Hart v. Massanari, 266 F.3d 1155, 1171-72 (9th Cir.2001) (issue resolved by panel is binding unless overruled by en banc court or Supreme Court).

Under Coeur d'Alene, a statute that is silent with respect to its applicability to Indian tribes applies to Indian tribes unless

(1) the law touches "exclusive rights of self-governance in purely intramural matters"; (2) the application of the law to the tribe would "abrogate rights guaranteed by Indian treaties"; or (3) there is proof "by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations...." In any of these three situations, Congress must expressly apply a statute to Indians before we will hold that it reaches them.

Coeur d'Alene, 751 F.2d at 1116 (quoting United States v. Farris, 624 F.2d 890, 893-94 (9th Cir.1980)). As the NLRA is silent, Coeur d'Alene controls. Even so, Chapa-De argues that the statute does not apply to it under both the first and third Coeur d'Alene exceptions.

A

Chapa-De maintains that meeting the health care needs of tribal members is purely intramural, as the issue is of great concern and requires the exercise of the informed discretion of the tribe's governing body. It argues that the governing body of the Rumsey Rancheria chose to designate Chapa-De as the tribal organization entitled to receive IHS funds in lieu of those services being provided directly by IHS. In Chapa-De's view, how health care services are provided is at least as intramural as the employment practices that we held were purely intramural in Karuk Tribe. Further, Chapa-De submits, it should not matter...