Employer That Failed to Personally Transmit Filed Petition for Review to NLRB Lost Chance for Selected Forum: DC Circuit | Practical Law

Employer That Failed to Personally Transmit Filed Petition for Review to NLRB Lost Chance for Selected Forum: DC Circuit | Practical Law

In Remington Lodging & Hospitality, LLC v. NLRB, the employer and union petitioned for review of the same National Labor Relations Board (NLRB) order in the US Courts of Appeals for the District of Columbia and Ninth Circuits, respectively. The DC Circuit transferred the employer's petition for review to the Ninth Circuit to consolidate the matters, holding that the employer lost its chance for obtaining review in its selected forum under 28 U.S.C. § 2112(a) because it, unlike the union, failed to personally transmit a court-and-date-stamped copy of its filed petition to the NLRB within ten days of its filing.

Employer That Failed to Personally Transmit Filed Petition for Review to NLRB Lost Chance for Selected Forum: DC Circuit

by Practical Law Labor & Employment
Published on 14 Apr 2014 • USA (National/Federal)
In Remington Lodging & Hospitality, LLC v. NLRB, the employer and union petitioned for review of the same National Labor Relations Board (NLRB) order in the US Courts of Appeals for the District of Columbia and Ninth Circuits, respectively. The DC Circuit transferred the employer's petition for review to the Ninth Circuit to consolidate the matters, holding that the employer lost its chance for obtaining review in its selected forum under 28 U.S.C. § 2112(a) because it, unlike the union, failed to personally transmit a court-and-date-stamped copy of its filed petition to the NLRB within ten days of its filing.
On April 8, 2014, in Remington Lodging & Hospitality, LLC v. NLRB, the employer and union petitioned for review of the same NLRB order in the US Court of Appeals for the District of Columbia and Ninth Circuits, respectively. The DC Circuit held that transmission by the DC Circuit's clerk of a court-and-date-stamped copy of the employer's filed petition for review to the NLRB was not a petition "received, from the persons instituting the proceedings" under 28 U.S.C. § 2112(a). Consequently, the DC Circuit:
  • Held that although the NLRB received a copy of the employer's petition within ten days after it issued the order, the employer lost its chance under 28 U.S.C. § 2112(a) for the Judicial Panel on Multidistrict Litigation to select the employer's preferred court as the forum in which it would consolidate review of the related matters.
  • Granted the NLRB's motion to transfer consideration of the employer's petition to the Ninth Circuit.
(App. No. 13-1146, (D.C. Cir. Apr. 8, 2014).)

Background

Where more than one party is aggrieved by a single agency order and file petitions for review of that order in different courts of appeals, the proceedings may be consolidated in a single court of appeal. Under 28 U.S.C. § 2112(a), if within ten days of issuing an order, the agency receives, "from the persons instituting the proceedings," two or more court-and-date-stamped petitions relating to the same order filed in different courts of appeals, then the Judicial Panel on Multidistrict Litigation randomly designates in which court of appeals the agency will file the administrative record.
Remington Lodging & Hospitality, LLC and a union petitioned for review of different parts of the same order by the panel (Board) heading the NLRB's judicial functions in different circuits under Section 10(f) of the NLRA (29 U.S.C § 160(f)). The union filed its petition in the Ninth Circuit, and Remington filed its petition for review in the DC Circuit. Consistent with Section 10(f), the circuit courts' clerks served court-and-date-stamped copies of the respective petitions for review on the NLRB. Within ten days of issuing the Board order at issue, the NLRB received:
  • A DC Circuit-and-date-stamped copy of Remington's petition from the DC Circuit's clerk.
  • A Ninth Circuit-and-date-stamped copy of the union's petition from the union. (Although it was immaterial and not noted in the decision, the Ninth Circuit also likely sent the court-and-date stamped copy of the union's petition to the NLRB in the same time frame).
The NLRB moved that the DC Circuit transfer the employer's petition to the Ninth Circuit in a consolidated matter. The NLRB conceded that it received a court-and-date-stamped copy of the employer's petition within the ten-day time limit, but that it did not receive the petition "from the persons instituting the proceedings," as Section 2112(a) required (28 U.S.C § 2112(a)).
Remington opposed the motion, asserting that:
  • The clerk's office's transmission of the petition under Section 10(f) of the NLRA satisfied Section 2112(a)(1).
  • The Judicial Panel on Multidistrict Litigation should designate in which court of appeals the NLRB would file the administrative record.
Both the DC and Second Circuits have found in unpublished opinions that Section 2112(a)(1) was not satisfied where the Board received the petition only from the court of appeals' clerk (Omaha World-Herald v. NLRB, No. 12-1005 (D.C. Cir. May 14, 2012) and Local Union 36 v. NLRB, No. 10-3448 (2d Cir. Dec. 28, 2010).

Outcome

The DC Circuit:
  • Found that:
    • the NLRB's position is supported by the text of Section 2112(a), which expressly requires that the agency "receive" the petition "from the persons instituting the proceedings";
    • under no ordinary reading of the statute would agency receipt of the petition from the clerk's office count as received from the persons instituting the proceedings;
    • to interpret Section 2112(a)'s language as including receipt from the clerk's office would render the statute's receipt requirement meaningless;
    • if Congress had intended to include receipt from the clerk's office, it would have left the critical phrase "from the persons instituting the proceedings" out of the language;
    • Remington's reliance on the mailing from the clerk's office does not take into account the different functions of Section 10(f) of the NLRA (which initiates judicial review of a Board order) and Section 2112(a) (which informs the Board that the petitioner wishes to take advantage of the optional choice of forum procedure). Every petitioner seeking review of a Board order must comply with Section 10(f), but to take advantage of Section 2112(a) petitioners must elect to do so separately; and
    • Section 2112(a)'s requirement that petitioners comply personally makes sense because it shows the agency that the petitioner cares about its chosen forum and imposes the burden of compliance on the party seeking to benefit from Section 2112(a).
  • Granted the Board's motion to transfer this petition to the Ninth Circuit.

Practical Implications

It is not common for Section 2112(a) to affect appellate review of Board decisions because, among other reasons:
  • The NLRA does not prompt swift appellate action. The NLRA does not set a limitations period for either:
  • Board orders infrequently affect two or more parties so adversely that each party undertakes the costs and efforts of petitioning for review soon after the order issues.
  • The NLRB's case handling manuals and regulations support resolving unfair labor practice matters through voluntary compliance, including NLRB compliance proceedings rather than appellate litigation.
However, recently courts of appeals have more frequently reached different conclusions about the NLRA and the jurisdiction of the Board to issue decisions during various periods (see for example, Legal Updates, Eighth Circuit Joins One Circuit Split and Creates Another, Holds Employer's Challenge to NLRB Recess Appointments Is Nonjurisdictional and Waived and Second Circuit Rules CBA Did Not Waive Union's Right to Effects Bargaining Over Policy Change; Circuit Split on Waiver Analysis Emerges). Consequently, forum shopping through swift petitions for review and applications for enforcement are becoming more common.
This decision is very informative about best practices when filing a petition for review of a Board decision and order (or other agency order). Even though there is no jurisdictional requirement to file a petition for review of an order within 10 days of its issuance or to serve a court-and-date-stamped copy of the petition in that same time frame, employers may consider doing both to preserve their chances that their petition will be reviewed by their preferred court.