NLRB v. Legacy Health System

The expeditious filing for enforcement of an order that does not affect the twenty-eight day window to file for reconsideration, does not constitute “extraordinary circumstance” sufficient to review an unpreserved issue pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e).

On appeal to the Ninth Circuit, Legacy Health System (“Legacy”), asserted an unpreserved issue regarding a remedial order by the National Labor Relations Board (“the Board”). Legacy claimed “extraordinary circumstance” where it had been denied both opportunity to object when the Board sua sponte modified the order, and opportunity to file for reconsideration when the Board petitioned for enforcement just two days after issuing the order. Legacy argued that under section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), such “extraordinary circumstance,” gave the Ninth Circuit jurisdiction to hear issues not raised before the Board. The Ninth Circuit, however, found no extraordinary circumstance. Regardless of the Board’s expeditious filing for enforcement, Legacy’s twenty-eight day window to file for reconsideration, fit within the time when the Board retained concurrent jurisdiction with the court, the time between applying for enforcement and filing the record. Thus, the Court concluded the Board had not “patently traveled outside the orbit of its authority” in adopting the remedial order and was entitled to enforcement because section 10(e) foreclosed jurisdiction to review Legacy’s objection. GRANTED.