New York & Presbyterian Hospital v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 2011 Decided June 14, 2011

No. 10-1278

NEW YORK AND PRESBYTERIAN HOSPITAL,
PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD ,
RESPONDENT

Consolidated with 10-1291

On Petition for Review and Cross-Application
for Enforcement of an Order of the National
Labor Relations Board

James S. Frank argued the cause for the petitioner. Michael
F. McGahan and Terence H. McGuire were on brief.
Heather S. Beard, Attorney, National Labor Relations
Board, argued the cause for the respondent. John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel and Meredith L. Jason, Deputy Assistant
General Counsel, were on brief. Fred B. Jacob, Supervisory
Attorney, entered an appearance.
Before: HENDERSON , BROWN and KAVANAUGH , Circuit
Judges.
 2

Opinion for the Court filed by Circuit Judge HENDERSON .
KAREN LE CRAFT HENDERSON , Circuit Judge: New York
and Presbyterian Hospital (Hospital) petitions for review of a
decision and order by the National Labor Relations Board
(NLRB or Board) finding the Hospital in violation of section
8(a)(5) of the National Labor Relations Act (Act), 29 U.S.C.
§ 158(a)(5), for failing to produce information requested by the
labor union with which the Hospital has a collective bargaining
agreement, the New York State Nurses Association (NYSNA or
Union). The Board cross-applies for enforcement of its decision
and order. The Hospital asserts that NYSNA failed to
demonstrate the relevance of its request for information, attacks
the evidentiary foundation of the Board’s decision and order and
raises a number of additional arguments. We reject the
Hospital’s arguments and deny its petition for review.
I.
The petition for review arises from an alleged violation of
the collective bargaining agreement between the Hospital and
NYSNA. The Hospital is a not-for-profit corporation operating
a large hospital and ten satellite clinics in the Washington
Heights area of New York City, New York. The Hospital is
affiliated with Columbia University School of Medicine
(Columbia) and nearly all of its physicians are members of
Columbia’s faculty and employed directly by Columbia.
NYSNA is a labor union representing the roughly 2600 nurses
in the Hospital’s employ, including a number of nurse
practitioners (NPs)—licensed nurses who possess more
advanced credentials. The collective bargaining agreement
between the Hospital and NYSNA contains a union security
clause, which requires nurses to join the Union within thirty
days of being hired by the Hospital, and includes a “side letter,”
which provides that “[e]xcept for certification, training or
 3

experimentation and emergencies, registered nurses who are
outside of the bargaining unit will not routinely or consistently
perform those clinical duties normally performed by members
of this bargaining unit.” N.Y. Presbyterian Hosp., 354 N.L.R.B.
No. 5, at *5 (2009) (reprinting ALJ decision).
In 2004, NYSNA began to suspect that non-Union nurse
practitioners were on Hospital premises performing work
normally done by members of the NYSNA bargaining unit.
NYSNA’s focus soon narrowed on a number of NP employees
of Columbia who worked at the Hospital. These NPs were not
represented by NYSNA. On June 4, 2004, NYSNA filed a
grievance alleging that the Hospital “hired nurse practitioners in
a nonunion capacity to do bargaining unit work.” N.Y.
Presbyterian Hosp., 354 N.L.R.B. No. 5, at *5.
From NYSNA’s initial grievance to this petition for review,
the dispute has traveled a long and winding road. The Hospital
denied the grievance on May 18, 2005, explaining that the
Columbia NPs were “not Hospital employees” and thus did “not
fall within the Hospital’s span of control nor [were] they
governed by the Hospital’s Policies and Procedures.” Letter
from Stacie M. Williams, Manager, Human Resources, N.Y. &
Presbyterian Hosp., to Roberta Murphy, Nursing Representative,
N.Y. State Nurses Ass’n (May 18, 2005) (Joint Appendix (JA)
1343). NYSNA then sought to arbitrate the grievance. A little
more than one year later, on August 31, 2006, NYSNA filed an
unfair labor practice charge with the NLRB against both the
Hospital and Columbia, alleging that they were “a single
employer or alter egos of one another” responsible for, inter
alia, “restrain[ing] and coerc[ing] nurse practitioners at [the
Hospital] in exercising their Section 7 rights by employing nurse
practitioners to work at [the Hospital] under terms and
conditions of employment different from those specified in the
collective bargaining agreement with NYSNA covering nurse
 4

practitioners who work at the hospital.” Charge Against
Employer, N.Y. Presbyterian Hosp., No. 2-CA-37868 (NLRB
Aug. 31, 2006). Acting pursuant to Board policy, the Board’s
Regional Director deferred consideration of NYSNA’s unfair
labor practice charge to the ongoing arbitration over NYSNA’s
grievance. See Collyer Insulated Wire, 192 N.L.R.B. 837
(1971); United Techs. Corp., 268 N.L.R.B. 557 (1984). Shortly
thereafter, Columbia informed NYSNA and the Hospital that, as
a non-signatory to the collective bargaining agreement, it did not
intend to participate in the arbitration.
NYSNA made a number of requests for information in
anticipation of the arbitration hearing. NYSNA twice issued
subpoenas duces tecum directing a representative of the Hospital
to appear at the arbitration hearing and produce documents
relating to non-Union NPs working on Hospital premises.
NYSNA then sent a letter to the Hospital asking for, inter alia,
documents between the Hospital and Columbia “concerning the
employment of nurse practitioners,” information about NPs
“designated as NYSNA represented employees” and information
about NPs “who are not designated as NYSNA represented
employees working on the premises of New York Presbyterian
Hospital.” Letter from Roberta Murphy, Nursing Representative,
N.Y. State Nurses Ass’n, to Stacie Williams, Director of Labor
Relations, N.Y. [&] Presbyterian Hosp. (Oct. 11, 2007)
(10/11/07 Letter) (JA 1599). NYSNA’s October 11, 2007 letter
forms the basis of the underlying charge at issue.
The arbitration hearing opened on October 25, 2007. No
transcript was made but the arbitrator apparently failed to decide
whether the Hospital was obligated to produce the requested
information. N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, at
*8. On October 31, 2007 NYSNA filed a second unfair labor
practice charge regarding information production, alleging that
the Hospital had “refused to bargain” by “failing to respond to
 5

an information request dated October 11, 2007.” Charge Against
Employer, N.Y. Presbyterian Hosp., No. 2-CA-38512 (NLRB
Oct. 31, 2007) (JA 359). On May 30, 2008, the General Counsel
of the NLRB (General Counsel) served the Hospital with a
complaint alleging that its failure to provide NYSNA with the
information requested in the Union’s October 11, 2007 letter
constituted a violation of section 8(a)(1) and (5) of the Act, 29
U.S.C. § 158(a)(1), (5).
An administrative law judge (ALJ) presided over a four-day
hearing. On December 8, 2008 the ALJ ruled in favor of the
General Counsel, finding the Hospital violated section 8(a)(1)
and (5). N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, at *3,
*15. The ALJ acknowledged that the Hospital had turned over
“most” of the information regarding NPs employed by the
Hospital, “except for identifying what shifts they worked.” Id.
at *9. But the ALJ rejected the Hospital’s claim that it lacked
information regarding the Columbia NPs. The information, the
ALJ stated, could be found in the paperwork required to
“credential[]” NPs—referring to the review process by which
the Hospital assigns privileges to work in specific medical care
departments of the Hospital. Id. at 10. The credentialing
paperwork included, inter alia, “the nurse practitioners’ names,
(including those on Columbia University’s payroll); the
departments or units where the nurse practitioners are assigned
to work; their job duties and their start dates at the hospital.” Id.
The ALJ recommended that the Hospital be required to turn over
information regarding the shifts worked by Hospital NPs and the
names, dates of hire and/or termination, job duties, departments
or areas of work, shifts and full- or part-time status of the
Columbia NPs working on Hospital premises. Id. at *15.
On April 29, 2009 a two-member panel of the Board
affirmed the ALJ’s conclusion that the Hospital violated section
8(a)(5) of the Act, 29 U.S.C. § 158(a)(5), and adopted the ALJ’s
 6

recommended order with the added requirement that the
Hospital produce “[a]ll documents between [the Hospital] and
Columbia University Medical Center and/or Trustees of
Columbia University concerning the employment of nurse
practitioners.” N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, at
*1–2.
Two days later, on May 1, 2009, we issued our decision in
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, holding
that a panel of only two Board members could not validly
exercise the Board’s delegated authority. 564 F.3d 469, 472–73
(D.C. Cir. 2009), cert. denied, 130 S. Ct. 3498 (2010). On May
7, 2009 the Hospital filed a motion for reconsideration before
the Board, relying on Laurel Baye Healthcare to challenge the
authority of the two-member panel. N.Y. & Presbyterian Hosp.’s
Mot. for Reconsideration, N.Y. & Presbyterian Hosp., No.
2-CA-38512 (NLRB May 7, 2009). The Board denied the
motion on June 2, 2009. Order, N.Y. Presbyterian Hosp., No. 2-
CA-38512 (NLRB June 2, 2009). During the month of July
2009, the Hospital filed a petition for review of the Board’s
decision and order in this court, the Board cross-applied for
enforcement and we sua sponte held the case in abeyance. See
Order, N.Y. & Presbyterian Hosp. v. NLRB, No. 09-1200 (D.C.
Cir. July 16, 2009). After the United States Supreme Court held
that three Board members are required to constitute a Board
quorum in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635,
2639–42 (2010), the Board vacated its April 29, 2009 decision
and order—decided by only two members—and we dismissed
the pending petitions for review and enforcement. See Mot. of
NLRB for Dismissal of Case & Denial of All Outstanding
Mots., N.Y. & Presbyterian Hosp. v. NLRB, Nos. 09-1200 & 09-
1210 (D.C. Cir. Aug. 18, 2010); Order, N.Y. & Presbyterian
Hosp. v. NLRB, Nos. 09-1200 & 09-1210 (D.C. Cir. Sept. 29,
2010).
 7

The Board tried again on August 26, 2010. Acting with a
full three-member quorum, the Board issued a new decision and
order “affirm[ing] the [ALJ’s] rulings, findings, and
conclusions.” N.Y. Presbyterian Hosp., 355 N.L.R.B. No. 126,
at *1 (2010). The Board adopted and “incorporated . . . by
reference” its vacated decision and order from April 29, 2009
“to the extent and for the reasons stated in the [earlier]
decision.” Id.
The dispute took one final twist before it arrived here.
Under section 10(e) of the Act, the Board can petition for
enforcement of a Board order only in the judicial circuit or
district “wherein the unfair labor practice in question occurred
or wherein [the person committing the unfair labor practice]
resides or transacts business.” 29 U.S.C. § 160(e). Accordingly,
on August 27, 2010—one day after the three-member Board
issued its decision and order—the Board filed an application for
enforcement in the Second Circuit “because the unfair labor
practice occurred in New York, NY.” Application for
Enforcement, NLRB v. N.Y. Presbyterian Hosp., No. 10-3471
(2d Cir. Aug. 27, 2010). Under section 10(f) of the Act, by
contrast, an aggrieved person seeking to challenge a Board order
has the additional option of filing a petition for review “in the
United States Court of Appeals for the District of Columbia.” 29
U.S.C. § 160(f). Accordingly, the Hospital filed a petition for
review in this court on September 7, 2010. Petition for Review,
N.Y. & Presbyterian Hosp. v. NLRB, No. 10-1278 (D.C. Cir.
Sept. 7, 2010). The Board then moved in the Second
Circuit—with the Hospital’s consent—for voluntary dismissal
of its application for enforcement pursuant to Rule 42(b) of the
Federal Rules of Appellate Procedure in order to “expedite
resolution of this matter” by “proceed[ing] in the District of
Columbia Circuit.” Unopposed Mot. of NLRB to Dismiss,
¶ 3–4, NLRB v. N.Y. Presbyterian Hosp., No. 10-3471(2d Cir.
 8

Sept. 10, 2010). The Second Circuit granted the Board’s motion
“with prejudice.”1 Order, NLRB v. N.Y. Presbyterian Hosp., No.
10-3471 (2d Cir. Sept. 14, 2010). The Board then filed a cross-
application for enforcement in this court, which we consolidated
with the Hospital’s petition for review.2 Cross-Application for
Enforcement, N.Y. & Presbyterian Hosp. v. NLRB, No. 10-1291
(D.C. Cir. Sept. 17, 2010); Order, N.Y. & Presbyterian Hosp. v.
NLRB, No. 10-1278 (D.C. Cir. Sept. 23, 2010).
II.
At issue is whether the Board correctly concluded that the
Hospital violated section 8(a)(5) of the Act, 29 U.S.C.
§ 158(a)(5), by refusing to produce the information the Union
requested. “We review the Board’s factual conclusions for
substantial evidence, defer to NLRB rules if they are rational
and consistent with the Act, and uphold the Board’s application
of law to facts unless arbitrary or otherwise erroneous.” Guard
Publ’g Co. v. NLRB, 571 F.3d 53, 58 (D.C. Cir. 2009) (quoting
Harter Tomato Prods. Co. v. NLRB, 133 F.3d 934, 937 (D.C.
Cir. 1998)) (internal quotation marks omitted); see also 29

1
The Hospital had also moved in the Second Circuit to dismiss
the Board’s application for enforcement on various substantive
grounds or, in the alternative, to transfer to the District of Columbia
Circuit. See Mot. to Dismiss, NLRB v. N.Y. & Presbyterian Hosp., No.
10-3471 (2d Cir. Sept. 8, 2010). The Second Circuit denied the
Hospital’s motion to dismiss as moot at the same time that it granted
the Board’s motion for voluntary dismissal. Order, NLRB v. N.Y.
Presbyterian Hosp., No. 10-3471 (2d Cir. Sept. 14, 2010).

2
Once a petition for review is filed pursuant to section 10(f), the
reviewing court acquires “the same jurisdiction” to enforce a Board
order “as in the case of an application by the Board under subsection
(e) of this section.” 29 U.S.C. § 160(f).
 9

U.S.C. § 160(e) (“The findings of the Board with respect to
questions of fact if supported by substantial evidence on the
record considered as a whole shall be conclusive.”).
A. Relevance of Documents
Section 8(a)(5) imposes upon an employer the “duty to
bargain collectively,” Detroit Edison Co. v. NLRB, 440 U.S.
301, 303 (1979), and the employer’s duty “has long been
acknowledged to include a duty to supply a union with
‘requested information that will enable [the union] to negotiate
effectively and to perform properly its other duties as bargaining
representative.’ ” Oil, Chem. & Atomic Workers Local Union
No. 6-418 v. NLRB, 711 F.2d 348, 358 (D.C. Cir. 1983)
(alteration in original) (quoting Local 13, Detroit Newspaper
Printing & Graphic Commc’ns Union v. NLRB, 598 F.2d 267,
271 (D.C. Cir. 1979)). Because a union’s other duties include
the duty “to see to it that an employer meets its [collective
bargaining agreement] obligations,” Int’l Union of Elec., Radio
& Mach. Workers v. NLRB, 648 F.2d 18, 25 (D.C. Cir. 1980),
the employer’s duty to furnish information “extends to data
requested in order properly to administer and police a collective
bargaining agreement.” Oil, Chem. & Atomic Workers, 711 F.2d
at 358.
Nevertheless, the duty imposed by section 8(a)(5) is subject
to a minimum standard of relevance: “The union’s need and the
employer’s duty depend, in all cases, on the ‘probability that the
desired information [is] relevant, and that it [will] be of use to
the union in carrying out its statutory duties and
responsibilities.’ ” Id. at 359 (alterations in original) (quoting
NLRB v. Acme Indus. Co., 385 U.S. 432, 437 (1967)). The
requisite showing of relevance depends, in turn, on whether the
union is requesting information about employees who are part
of the bargaining unit or outside it. “For information about
 10

employees in the bargaining unit, it is presumed that the
requested information is relevant . . . , and the employer must
provide the information unless it can show the information is
irrelevant.” U.S. Testing Co. v. NLRB, 160 F.3d 14, 19 (D.C.
Cir. 1998). Here, the first portion of the Board’s
order—requiring the Hospital to furnish information regarding
“[t]he shifts worked of all nurse practitioners who are directly
employed by the [Hospital],”N.Y. Presbyterian Hosp., 354
N.L.R.B. No. 5, at *1—involved only bargaining unit employees
represented by NYSNA and therefore relevance is presumed.
With respect to employees outside the bargaining unit, on the
other hand, “the burden is on the union to demonstrate the
relevance of [the requested] information.” U.S. Testing Co., 160
F.3d at 19. We must therefore inquire further into the relevance
of the remaining portions of the Board’s order—which, in
requiring the Hospital to furnish information about “nurse
practitioners who are on the payroll of Columbia University”
and documents between the Hospital and Columbia “concerning
the employment of nurse practitioners,” N.Y. Presbyterian
Hosp., 354 N.L.R.B. No. 5, at *1–2, related to employees
outside the bargaining unit represented by NYSNA.
“A union’s bare assertion that it needs information . . . does
not automatically oblige the employer to supply all the
information in the manner requested.” Detroit Edison, 440 U.S.
at 314. In requesting information about employees outside the
bargaining unit, the union must explain to the employer why the
information is relevant. See ConAgra, Inc. v. NLRB, 117 F.3d
1435, 1439 (D.C. Cir. 1997) (where no presumption of relevance
applies, “union must demonstrate that any requested . . .
information is relevant . . . in order to require the employer to
turn it over”). Nevertheless, “ ‘the threshold for relevance is
low.’ ” Brewers & Maltsters, Local Union No. 6 v. NLRB, 414
F.3d 36, 45 (D.C. Cir. 2005) (quoting DaimlerChrysler Corp. v.
 11

NLRB, 288 F.3d 434, 443 (D.C. Cir. 2002)). In particular, the
union need not demonstrate “the existence of some particular
controversy or the need to dispose of some recognized
problem.” Oil, Chem. & Atomic Workers, 711 F.2d at 361.
Rather, we apply a “discovery-type standard,” Acme, 385 U.S.
at 437, under which “ ‘[t]he fact that the information is of
probable or potential relevance is sufficient to give rise to an
obligation . . . to provide it.’ ” Oil, Chem. & Atomic Workers,
711 F.2d at 359 (ellipsis in original) (quoting Westinghouse
Elec. Corp., 239 N.L.R.B. 106, 107 (1978)).
There can be little dispute that NYSNA’s information
request is relevant to the question whether non-bargaining unit
NPs are performing bargaining unit work. If true, that practice
might well make out a violation of the “side letter” to the
Hospital’s collective bargaining agreement with NYSNA.
Because NYSNA’s representative duties include policing the
Hospital’s adherence to the collective bargaining agreement, see
Oil, Chem. & Atomic Workers, 711 F.2d at 358, the Union was
within its rights to demand the information and the Hospital was
obligated to provide it.
The Hospital contends that the requested information
regarding Columbia NPs is irrelevant to the Union’s original
grievance, which alleged only that the Hospital had “hired” non-
Union NPs to perform bargaining unit work. If the precise
wording of the grievance bounded the scope of the Hospital’s
duty to provide information, we might agree that the Hospital
had no obligation to furnish information regarding NPs not
“hired” by the Hospital. We have held, however, that “context
is everything” in evaluating the relevance of a union’s request
for information, U.S. Testing Co., 160 F.3d at 19, and we
consider the reasons proffered by the union at the time of its
request, see Gen. Elec. Co. v. NLRB, 916 F.2d 1163, 1169 (7th
Cir. 1990) (relevance “must be examined as of the time of the
 12

demand and refusal”). The current dispute arises not from
NYSNA’s original grievance but from the request for
information contained in the Union’s October 11, 2007 letter.
Indeed, as the ALJ observed, the October 11, 2007 letter was
carefully phrased to cover documents about non-Union NPs
working on Hospital premises “irrespective of who was their
employer.” N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, at *7
(emphasis in original). The nub of NYSNA’s request for
information was the Union’s concern that non-Union NPs were
performing bargaining unit work in the Hospital. We believe
that NYSNA has adequately demonstrated the relevance of its
request for information.
The Hospital also challenges the Board’s order and decision
on various factual grounds. The Hospital claims, for instance,
that it had already furnished the information requested by
NYSNA about the shifts worked by bargaining unit NPs
employed by the Hospital. The record, however, belies the
Hospital’s assertion. When Roberta Murphy, NYSNA’s
representative, was asked during direct examination whether the
Union had “receive[d] any information to show the shift [sic]
worked for NYSNA represented employees,” she answered,
“No.” Hearing Tr. at 179, N.Y. Presbyterian Hosp., No. 2-CA-
38512 (NLRB Sept. 4, 2008) (Tr. 9/4). Although Murphy
admitted during cross examination that the Hospital produced
information about the “amount of shift differential that was
paid” to NPs at the Hospital, she maintained that the documents
showed only shift differential and “[n]ot the shifts worked.” Tr.
9/9 at 343–44. The Hospital cites no specific evidence to rebut
Murphy’s testimony but refers instead to portions of the record
detailing the information the Hospital did produce. There is no
dispute that the Hospital produced “most of the information”
requested by the Union about bargaining unit NPs. N.Y.
Presbyterian Hosp., 354 N.L.R.B. No. 5, at *9. The question
 13

before us, however, is whether the Board’s order that the
Hospital be required to furnish information about shifts worked
by bargaining unit NPs is supported by substantial evidence. In
the absence of countervailing evidence, we conclude that it is.
The Hospital argues further that the credentialing files in its
custody are non-responsive to NYSNA’s request for information
about non-Union Columbia NPs. We disagree. The Director of
Operations of Columbia’s Department of Medicine testified that
a typical credentialing packet specifies the NP’s name,
anticipated start date at the Hospital, the unit of the Hospital in
which the NP is expected to perform duties, a “statement of
duties” and a collaborative practice agreement with a
supervising physician outlining the NP’s “job duties as it relates
to the position.” Tr. 9/4 at 199, 201–02, 243. Although it is
likely, as the Hospital argues, that the credentialing files do not
contain all of the information requested by NYSNA—such as
the Columbia NPs’ shifts or full- or part-time status—this
deficiency does not relieve the Hospital of its obligation to
produce whatever responsive information it does possess. The
Hospital’s reliance on cases in which the employer did not
possess the information being sought in any form, see, e.g.,
Detroit Typographical Union No. 18 v. NLRB, 216 F.3d 109,
121 (D.C. Cir. 2000), or in which the employer had already
furnished all of the information in its possession, see, e.g., Korn
Indus., Inc. v. NLRB, 389 F.2d 117, 123 (4th Cir. 1967), is
therefore misplaced.
B. Other Matters
The Hospital also argues that NYSNA sought the
information in order to force the Hospital to stop doing business
with Columbia in violation of section 8(e) of the Act, 29 U.S.C.
§ 158(e). Because the Hospital invoked section 8(e) as an
affirmative defense, it bore the burden of proving the elements
 14

of a section 8(e) violation: there must be an “ ‘agreement,
express or implied, . . . to cease doing business with any other
person’ ” and the agreement must be “ ‘secondary’ . . . . [t]hat
is, . . . the agreement must be designed not solely to ‘improv[e]
the [primary employer’s] employees’ wages, hours, and working
conditions,’ but also ‘to satisfy union objectives elsewhere.’ ”
Sheet Metal Workers, Local Union No. 91 v. NLRB, 905 F.2d
417, 421 (D.C. Cir. 1990) (alterations in original) (quoting 29
U.S.C. § 158(e) and Nat’l Woodwork Mfrs. Ass’n v. NLRB, 386
U.S. 612, 643, 644 (1967)).
The Board’s rejection of the Hospital’s section 8(e)
argument meets the requisite threshold. It is well-established
that “[s]ection 8(e) does not . . . reach” contractual provisions
“encompassing ‘employees’ activity to pressure their employer
to preserve for themselves work traditionally done by them,’ ”
such as NYSNA’s side letter with the Hospital reserving
bargaining unit work for NYSNA-represented nurses. Int’l
Union of Painters & Allied Trades, Local Unions No. 970 &
1144 v. NLRB, 309 F.3d 1, 7 (D.C. Cir. 2002) (ellipsis added)
(emphasis omitted) (quoting Nat’l Woodwork Mfgs. Ass’n, 386
U.S. at 635). The ALJ found that NYSNA “was seeking to
enforce its contract and require the Hospital to assign unit work
to bargaining unit members who are employed by the Hospital.”
N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, at *13. The
Hospital offers no evidence to suggest NYSNA was acting with
any purpose other than to enforce the side letter.
We also reject the Hospital’s claim that the Board should
have deferred the dispute to arbitration. “[T]he Board has long
adhered to a policy of refusing to defer disputes concerning
information requests” and its decision whether or not to depart
from such policy “is squarely within the purview of the Board,
not of this court.” DaimlerChrysler Corp. v. NLRB, 288 F.3d
434, 444, 447 (D.C. Cir. 2002). The Hospital makes much of the
 15

fact that two Board members expressed willingness to revisit the
Board’s deferral policy under certain circumstances. Both
members, however, agreed that deferral would be “inappropriate
in this case” because the arbitrator failed to rule on the Union’s
request for information, N.Y. Presbyterian Hosp., 354 N.L.R.B.
No. 5, at *2 n.3 (Member Schaumber); N.Y. Presbyterian Hosp.,
355 N.L.R.B. No. 126, at *1 n.3 (Member Hayes); see Tr. 9/9 at
315 (Murphy testimony) (arbitrator “refused to rule” on
information request).
Finally, we decline to reach the remaining arguments raised
by the Hospital. The Hospital argues that when the Second
Circuit granted the Board’s motion for voluntary dismissal “with
prejudice,” it rendered a final judgment that precludes, as a
matter of res judicata, the Board’s cross-application for
enforcement in this court. See Lawlor v. Nat’l Screen Serv.
Corp., 349 U.S. 322, 326 (1955) (“[U]nder the doctrine of res
judicata, a judgment ‘on the merits’ in a prior suit involving the
same parties . . . bars a second suit based on the same cause of
action.”). While we are skeptical that a voluntary
dismissal—even one “with prejudice”—operates as an
adjudication “on the merits” for the purpose of res judicata, see,
e.g., Agrolinz, Inc. v. Micro Flo Co., 202 F.3d 858, 861 (6th Cir.
2000) (under Florida and Tennessee law, “order of dismissal
‘with prejudice’ should be treated as a dismissal without
prejudice . . . when it is apparent that there had been no
adjudication of the substantive issues”), we need not decide the
issue because even if the Board were precluded from re-filing an
application for enforcement under section 10(e), the Hospital’s
petition for review pursuant to section 10(f) gives us the “same
jurisdiction” to enforce the Board’s order. 29 U.S.C. § 160(f).
Nor do we reach the Hospital’s argument that the Board
failed to engage in “reasoned decisionmaking”—as the
Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq.,
 16

requires of Board decisions, Allentown Mack Sales & Serv., Inc.
v. NLRB, 522 U.S. 359, 374 (1998)—when the three-member
panel of the Board summarily adopted the vacated April 29,
2009 decision and order. Whatever the merits of the Hospital’s
claim, section 10(e) prevents us from considering the argument
raised for the first time on appeal. See 29 U.S.C. § 160(e) (“No
objection that has not been urged before the Board . . . shall be
considered by the court, unless the failure or neglect to urge
such objection shall be excused because of extraordinary
circumstances.”). The fact that the Board filed an application for
enforcement in the Second Circuit just one day after adopting
the decision and order does not constitute an “extraordinary
circumstance[],” as the Hospital contends, because the Hospital
still had up to twenty-eight days to move for reconsideration
before the Board, 29 C.F.R. § 102.48(d)(2), and the Board’s
overlapping jurisdiction remained intact so long as the record
had not been filed in the Second Circuit, 29 U.S.C. § 160(d), (e).
Nor did the Hospital’s motion for reconsideration of the Board’s
original April 29, 2009 decision and order, supra at 6, raise the
same objection the Hospital presses now—that the Board took
an “impermissible shortcut” by summarily adopting the vacated
decision and order. Pet’r’s Br. 32. Accordingly, the Hospital has
forfeited its APA challenge.
Section 10(e) also forecloses our consideration of the
Hospital’s argument that the Board’s order contained inadequate
safeguards for the Hospital’s confidential information. The
Hospital failed to preserve the issue by not raising it in
exceptions to the ALJ decision and recommended order. See 29
C.F.R. § 102.46(b)(2) (“Any exception . . . which is not
specifically urged shall be deemed to have been waived.”). The
closest reference was the Hospital’s exception to “requiring the
Hospital to pull information from credentialing files to disclose
to the Union,” Exceptions to Decision & Recommended Order
 17

of ALJ, N.Y. & Presbyterian Hosp., No. 2-CA-38512, ¶ 65
(NLRB Jan. 20, 2009), but the language was too broad to put the
Board on notice of the Hospital’s specific interest in the
confidentiality of the information contained in the credentialing
files, cf. Quazite Div. of Morrison Molded Fiberglass Co. v.
NLRB, 87 F.3d 493, 497 (D.C. Cir. 1996) (exception to remedial
order “in its entirety” was “far too broad to preserve a particular
issue for appeal”).
For the foregoing reasons, we deny the Hospital’s petition
for review and grant the Board’s cross-application for
enforcement.
So ordered.