Hospital Pavia-Perea

National Labor Relations Board - Board Decisions

Sep 30, 2010

355 N.L.R.B. 1300 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 215
1300
Metro Mayaguez, Inc., d/b/a Hospital Pavia Perea
and Unidad Laboral De Enfermeras (OS) Y
Empleados De La Salud. Case 24–CA–10505
September 30, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On April 30, 2008, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 352 NLRB 418.1 Thereafter, the
General Counsel filed an application for enforcement in
the United States Court of Appeals for the First Circuit.
On June 17, 2010, the United States Supreme Court is-
sued its decision in New Process Steel, L.P. v. NLRB,
130 S.Ct. 2635, holding that under Section 3 (b) of the
Act, in order to exercise the delegated authority of the
Board, a delegee group of at least three members must be
maintained. Thereafter, the court of appeals issued an
order denying enforcement.2

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 The sole basis of the court’s decision denying enforcement was that
in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, the Supreme Court
had determined that “following a delegation of the NLRB’s powers to a
three-member group, two members cannot continue to exercise that
delegated authority once the group’s (and the NLRB’s) membership
falls to two.” NLRB v. Hospital Pavia Perea, No. 90–1344 (1st Cir.
July 30, 2010) at *1 (quoting New Process Steel, L.P. v. NLRB, 130
S.Ct. at 2644). The court neither discussed nor decided the merits of
the two Board Members’ unfair labor practice findings.
Although the Board sought clarification of the court’s order, the
court denied that motion without explanation. Accordingly, we are
required to construe the court’s decision and mandate in light of the
principle that a “mandate is ‘to be interpreted reasonably and not in a
manner to do injustice.’” Bailey v. Henslee, 309 F.2d 840, 844 (8th Cir.
1962) (quoting Wilkinson v. Massachusetts Bonding & Insurance Co.,
16 F.2d 66, 67 (5th Cir. 1926)). Accord: NLRB v. Donnelly Garment
Co., 330 U.S. 219, 225–228 (1947). Because the First Circuit predi-
cated its denial of enforcement solely on New Process Steel’s determi-
nation that the two members lacked authority to issue an order, we have
concluded that the court’s decision and mandate are not a final resolu-
tion of the pending unfair labor practice issues litigated before the
administrative law judge and are not reasonably interpreted as terminat-
ing further proceedings before the Board. Further, we do not find the
First Circuit’s denial of the Board’s motion for remand or clarification
to be a significant factor in construing the court’s decision and man-
date. As courts have explained, no inferential weight should be as-
cribed to summary denials of postjudgment motions for rehearing or
clarification, given the myriad reasons that the denials could represent.
See, e.g., Exxon Chemical Patents v. Lubrizol Corp., 137 F.3d 1475,
1479–1480 (Fed. Cir. 1998) (motion for clarification); U.S. v. Cote, 51
F.3d 178, 181 (9th Cir. 1995) (petition for rehearing or modification);
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.3
The Board has considered the judge’s decision and the
record in light of the exceptions, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order to the extent and for the reasons stated in the deci-
sion reported at 352 NLRB 418 (2008), which is incorpo-
rated by reference.

Luckey v. Miller, 929 F.2d 618, 621–622 (11th Cir. 1991) (petition for
rehearing en banc).
Finally, the court’s jurisdiction under Sec. 10(e) and (f) of the Act
extends to review only of a “final order” of the Board. See Augusta
Bakery Corp. v. NLRB, 846 F.2d 445 (7th Cir. 1988) (dismissing peti-
tion for review for want of jurisdiction where Board had not issued a
“final” order). Absent such an order, there is nothing for a court to
enforce or set aside. See In re Labor Board, 304 U.S. 486, 494 (1938)
(in finding that the Third Circuit exceeded its jurisdiction in attempting
to halt further proceedings before the Board, the Supreme Court held
that a court without statutory power to decide the controversy in the
particular circumstances, “lacks jurisdiction of the subject matter and
must refrain from any adjudication of rights in connection therewith”).
The court here made no finding that the order issued by two Board
Members who lacked authority to issue that order constituted a “final
order” under the Act and, in light of New Process, there is a serious
question whether the court had jurisdiction either to decide any dispute
on the merits or to terminate further proceedings before the Board in
this case.
3 Consistent with the Board’s general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the remaining member who participated in the origi-
nal decision. Furthermore, under the Board’s standard procedures ap-
plicable to all cases assigned to a panel, the Board Members not as-
signed to the panel had the opportunity to participate in the adjudication
of this case at any time up to the issuance of this decision.