The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case is before me as a Special Master appointed by the District of Columbia Court of Appeals, proceeding from a petition by the National Labor Relations Board ("NLRB" or "the Board"). The NLRB accuses respondent Jackson Hospital, doing business as Kentucky River Medical Corporation ("KRMC"), of contempt, stemming from KRMC's alleged failure to comply with an Order of the D.C. Circuit issued on June 3, 2005. On January 14, 2011, I issued an order which, among other things, granted summary judgment to KRMC as to whether it had fulfilled its obligation to offer reinstatement to Sandra Hutton and Clara Gabbard, denied summary judgment to the NLRB on the same issue, and granted summary judgment to KRMC as to the United Steel Workers of America's ("the Union's") July 27, 2006 request for information. Before me at this time is Motion of the National Labor Relations Board for Reconsideration of the Court's January 14, 2011 Order Granting Partial Summary Judgment [#82].*fn1 The NLRB asks me to reconsider these orders, to vacate my grants of summary judgment to KRMC, and to grant summary judgment to the NLRB on the reinstatement issue. Upon a review of the record and the relevant law, the motion for reconsideration will be granted.
This case comes with more than a decade of complex procedural history, which, for the sake of clarity, I will recount. In late 2000 and early 2001, the NLRB issued a complaint alleging violations of certain sections of the National Labor Relations Act, 29 U.S.C. §§ 151-169 ("NLRA") by KRMC. Respondent's Motion for Partial Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7(h) [#52], Exh. C at 2. On January 26, 2001, the NLRB filed a petition for injunction under § 10(j) of the NLRA (29 U.S.C. § 160(j)) in the Eastern District of Kentucky. *fn2 See Ahearn ex rel. NLRB v. Jackson Hosp. Corp., 351 F.3d 226, 228 (6th Cir. 2003) (procedural history).
On January 18, 2002, the district court, per Judge Joseph M. Hood, entered an order granting the petition in part. Ahearn, 351 F.3d at 228. Judge Hood held that the Regional Director of the NLRB "established cause to believe that the hospital was engaging in . . . unfair labor practices," noting that "[b]y granting injunctive relief the Court will be returning the parties to the state of affairs that existed before the alleged unfair labor practices, thus helping to preserve the Board's remedial powers." #52, Exh. C at 57-58. Among other things, the court ordered that "pending the National Labor Relations Board's final resolution of the administrative proceedings in this matter, the Respondent hospital be . . . required to offer interim reinstatement of" Clara Gabbard and Sandra Hutton (n©e Baker). Id., Exh. C at 60.
On February 20, 2002, ALJ David Evans issued his opinion in the administrative proceeding against KRMC. See Jackson Hosp. Corp., 2002 NLRB LEXIS 61 (NLRB Feb. 20, 2002). ALJ Evans determined that KRMC engaged in a number of unfair labor practices, including its discharges of Gabbard and Hutton in 2000. Id. at 376. Evans ordered that the hospital offer the women "immediate and full reinstatement to their former jobs . . . without prejudice to their seniority or any other rights or privileges that they previously enjoyed, and make those employees whole for any loss of earnings or other benefits" resulting from their termination. Id. at 381.
Also on or about February 19-20, 2002, KRMC extended offers of interim reinstatement to Gabbard and Hutton. Motion of the National Labor Relations Board for Summary Adjudication in Civil Contempt (Including Memorandum of Points and Authorities in Support Thereof) [#60], Exh. 17A. The letters to both women stated that the hospital was offering "interim reinstatement." Id. The letters explained that the issue of whether severance was lawful was yet to be decided by the NLRB, but in the meantime, "a court has merely determined that there was 'reasonable cause' and that a temporary reinstatement offer is 'just and proper.'" Id. The letter clarified that, if the hospital prevailed at the end of the administrative proceedings, the hospital would again sever employment. Id. It stated that, if the hospital did not prevail, then they would "be able to continue [their] employment with the hospital, assuming [their] employment does not end for a lawful reason in the meantime." Id. It also advised that Gabbard and Hutton could decline interim employment without affecting their right to contest termination: "If the final outcome of those proceedings is an order that you will be reinstated, then the hospital could be required to reinstate you at that time even if you decline to be reinstated temporarily at this time." Id. Gabbard and Hutton accepted the offers of interim reinstatement. Id., Exh. 17B.
On April 18, 2002, KRMC filed its exceptions to ALJ Evans' opinion, pursuant to 29 C.F.R. § 102.46. #52, Facts at ¶ 23. In the meantime, on May 3, 2002, KRMC filed a motion with Judge Hood to modify his judgment as to Gabbard, requesting that the court withdraw its grant of interim reinstatement. #60, Exh. 17D. KRMC alleged that Gabbard (1) "repeatedly failed, without legitimate excuse or justification, to attend scheduled return-to-work medical examinations," and (2) "informed one of her co-employees [that] when she return[ed] to the Hospital she [would] 'get even' with those who mistreated her." Id., Exh. 17D at 3-4. On May 24, 2002, Judge Hood granted KRMC's motion based on affidavits by Gabbard's co-workers, finding that Gabbard's "interim reinstatement presents an undue risk to patients and the efficient/orderly operation of the hospital Repondent operates." Id., Exh. 17F.
KRMC filed its answering and reply briefs with the NLRB in June 2002; briefing before the NLRB closed in August 2002. #52, Facts at ¶¶ 24-25. On October 31, 2002, Hutton was notified by KRMC that she was terminated for allegedly failing to report to work without calling on October 13, 2002. #60, Exh. 17G.
On September 30, 2003, the NLRB panel issued its decision, affirming most of ALJ Evans' opinion, including the order to reinstate Gabbard and Hutton. Jackson Hosp. Corp., 340 NLRB 536, 537 (NLRB 2003). On December 5, 2003, the Sixth Circuit issued its decision in Ahearn v. Jackson Hospital, 351 F.3d 226 (6th Cir. 2003), affirming Judge Hood's decision on the 10(j) proceeding.*fn3
On January 13, 2004, KRMC filed its petition with the District of
Columbia Circuit Court of Appeals. Petition for Review of an Order of
the National Labor Relations Board, Jackson
Hosp. v. NLRB, No. 04-1019 (D.C. Cir. Jan. 14, 2004).*fn4
Over the course of the next year, KRMC filed four unopposed
motions for extensions of the briefing schedule, which were granted;
the last deadline set for KRMC's initial brief was January 18, 2005.
Clerk's Order, Jackson Hosp. v. NLRB, No. 04-1019 (D.C. Cir. Dec. 15,
2004). After KRMC missed its January deadline, the NLRB filed a motion
for judgment by default to enforce the order of the NLRB and dismiss
KRMC's petition for review on February 4, 2005. Motion of the National
Labor Relations Board for Judgment by Default Enforcing the Order of
the National Labor Relations Board and Dismissing the Company's
Petition for Review, Jackson Hosp. v. NLRB, No. 04-1019 (D.C. Cir.
Feb. 4, 2005). In its brief, the NLRB stated that it had been in talks
with KRMC for the prior eleven months in an attempt to settle the
matter, and that on February 3, KRMC's counsel, Don Carmody, told the
NLRB that KRMC was prepared to abandon the appeal and to work out
backpay issues; however, KRMC still had not made all of the necessary
reinstatement offers, nor had they extended a written offer for
settlement. Id. at ¶ 10.
On February 23, 2005, KRMC filed its opposition, claiming that the NLRB misrepresented the situation; it claimed that Carmody had an intervening family crisis that slowed the process. Response to Motion of the National Labor Relations Board for Judgment by Default Enforcing the Order of the National Labor Relations Board and Dismissing the Company's Petition for Review and Unopposed Cross-Motion Seeking Approval of Voluntary Withdrawal of Petition for Review, Jackson Hosp. v. NLRB, No. 04-1019, at 2-4 (D.C. Cir. Feb. 23, 2004). KRMC also stated that it had spoken to NLRB counsel that day, and that the NLRB agreed that KRMC would file an "Unopposed Cross-Motion Seeking Voluntary Withdrawal of Peititon for Review," which was filed as incorporated with the opposition. Id. at 6. The same day, the NLRB filed an opposition to the motion to withdraw, stating that, after conferring with other NLRB counsel, the counsel with whom Carmody spoke attempted to contact him to withdraw the Board's agreement, but KRMC's opposition and motion had already been filed. Opposition of the National Labor Relations Board to Petitioner's Motion to Withdraw Its Petition for Review, Jackson Hosp. v. NLRB, No. 04-1019, at ¶ 4 (D.C. Cir. Feb. 23, 2005).
Finally, on June 3, 2005, the District of Columbia Circuit issued a per curiam opinion granting the NLRB's motion for a default judgment, and denying KRMC's motion to withdraw. Per Curiam Order, Jackson Hospital v. NLRB, No. 04-1019 (D.C. Cir. June 3, 2005). One and a half years later, the NLRB filed the instant petition to find KRMC in civil contempt. Petition of the National Labor Relations Board for Adjudication in Civil Contempt and for Other Civil Relief, Jackson Hosp. v. NLRB, No. 04-1019 (D.C. Cir. Jan. 16, 2007).
II. THE ORDERS ON SUMMARY JUDGMENT AS TO THE REINSTATEMENT OF HUTTON AND GABBARD WILL BE VACATED, AND SUMMARY JUDGMENT WILL BE GRANTED TO THE NLRB
Upon a review of my decision granting summary judgment to KRMC on the issue of whether it satisfied its obligations to reinstate Hutton and Gabbard, I find that I misinterpreted the law involved in the proceedings. Thus, that grant of summary judgment will be vacated, and summary judgment will be denied. Furthermore, I have determined that KRMC is in civil contempt of the court of appeals' June 3, 2005 Order as a matter of law. Therefore, I will vacate the denial of summary judgment to the NLRB, and summary judgment will be granted.
A. KRMC has not complied with the D.C. Circuit's June 3, 2005 Order
1. The decision in the § 10(j) district court proceeding has no binding effect on the NLRB decision, and is not res judicata In my Memorandum Opinion of January 14, 2011, I held that Judge Hood's order was a final judgment, which barred the parties to the case "from any effort to relitigate in another forum what was litigated before him." NLRB v. Jackson Hosp., 2011 U.S. Dist. LEXIS 3736, at *22-23 (D.D.C. Jan. 14, 2011). My understanding of the nature of the § 10(j) proceeding, however, was flawed. Upon reconsideration, I have determined that the decision by Judge Hood is entirely separate from and non-binding upon that by ALJ Evans and the Board.
Section 10(j) of the NLRA, grants that the NLRB: shall have power, upon issuance of a complaint as provided in subsection (b) charging that any person has engaged in or is engaging in an unfair labor practice, to petition any district court of the United States . . . within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper. 29 U.S.C. § 160(j).
In a proceeding seeking temporary relief under § 10(j), the court will determine whether (1) there is "reasonable cause" to believe an unfair labor practice took place, and (2) whether the temporary relief is necessary and appropriate. See Coronet Foods, Inc. v. NLRB, 981 F.2d 1284, 1286 (D.C. Cir. 1993).
In Coronet, the company claimed that a denial of temporary relief in a § 10(j) proceeding-in this case, the restoration of a trucking department-collaterally estopped the NLRB from ordering that same relief in its final decision. Id. at 1287. The court stated that the issue preclusion argument failed because the issue before the district court was not the same issue that was ultimately before the Board. Id. While the pleas and language used in both the § 10(j) proceeding and that before the NLRB may have been the same, "the issues themselves were substantively different." Id. Furthermore, even if one were to regard the issues as essentially the same, "case law under the NLRA appears to include no instance of the Board having been bound in the manner Coronet urges." Id. at 1288.*fn5
The circumstances in this case are slightly different, in that the district court did grant the temporary relief requested by the NLRB; that is where it is easy to lose the forest for the trees. I am convinced now, however, that the decision in the district court was completely non-binding on the NLRB decision, such that the order for reinstatement by the Board created a new obligation on the part of KRMC to comply.
2. The offer tendered in February 2002 was for temporary reinstatement, which does not satisfy the Board's Order, enforced by the D.C. Circuit, for full reinstatement Closely tied to the issue of whether Judge Hood's decision was res judicata is the question of the extent of his order in the § 10(j) proceeding. The NLRB alleges that the order in the district court merely provided for "interim reinstatement," which was not sufficient to satisfy the Board's later order for full reinstatement of Gabbard and Hutton. Memorandum of the National Labor Relations Board in Support of Motion for Reconsideration [#83] at 16. KRMC counters that the "interim" or "temporary" relief awarded in the § 10(j) proceeding is "a distinction without a difference in this case because the offer of reinstatement . . . was both 'full' and 'non-temporary.'" #84 at 4. KRMC bases this argument on the fact that the reinstatement was only temporary insofar as it could not be permanent until the NLRB succeeded in its administrative action. Id.
The complex history of this case and the coincidence of certain actions did make it seem, at first, that KRMC might be right, and that "interim" reinstatement is no different from "full" reinstatement, releasing KRMC from any further obligations. For example, the fact that ALJ Evans' decision issued almost simultaneously with KRMC's offers of interim reinstatement to Gabbard and Hutton made it easy to confuse which of the two orders KRMC was complying with at the time. See section I, supra. Now that I have a greater grasp of the procedural law, however, I see that KRMC is incorrect, and that the distinction does, in fact, have a difference.
The NLRB cites another application for enforcement proceeding the Board brought against KRMC in the Sixth Circuit. See NLRB v. Jackson Hosp. Corp., 557 F.3d 301 (6th Cir. 2009). One of the issues in that case concerned the calculation of backpay for one of the reinstated employees. KRMC objects that, because it is a backpay issue, it is irrelevant to this case. #84 at 8. However, backpay is based on a calculation from when an employer makes a "valid offer of reinstatement" to an employee. Consol. Freightways v. NLRB, 892 F.2d 1052, 1055 (D.C. Cir. 1989). The definition of a "valid offer of reinstatement" is pertinent to this case.
In the Sixth Circuit case, KRMC argued that the offer of temporary interim reinstatement made to employee Lisa Noble, which she rejected, tolled its backpay obligation to her. Jackson Hosp., ...