                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 26 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



NATIONAL LABOR RELATIONS                         No. 10-73450
BOARD,
                                                 NLRB No. 31-CA-26057
              Petitioner,

  v.                                             MEMORANDUM *

BARSTOW COMMUNITY HOSPITAL-
OPERATED BY COMMUNITY
HEALTH SYSTEMS, INC.,

              Respondent.



                     On Petition for Review of an Order of the
                         National Labor Relations Board

                            Submitted March 15, 2012 **
                             San Francisco, California

Before: McKEOWN and M. SMITH, Circuit Judges, and ROTHSTEIN, Senior
District Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
U.S. District Court for the Western District of Washington, sitting by designation.
      The National Labor Relations Board (NLRB) petitions for enforcement of its

order finding that Barstow Community Hospital-Operated by Community Health

Systems, Inc. (Barstow) violated sections 8(a)(1) and 8(a)(3) of the National Labor

Relations Act (NLRA), 29 U.S.C. § 158(a)(1), (3). Because the parties are familiar

with the factual and procedural history of this case, we repeat only those facts

necessary to resolve the issues raised on appeal. We have jurisdiction under 29

U.S.C. § 160(e). See NLRB v. Kolkka, 170 F.3d 937, 939 (9th Cir. 1999). We

grant the NLRB’s application for enforcement of its order.

      Barstow argues that the NLRB abused its discretion in denying Barstow an

opportunity to reopen the record to present evidence that Lois Sanders (Sanders)

was a supervisor exempt from NLRA protection as a registered nurse. According

to Barstow, it had no reason to present this evidence before the NLRB decided

three cases in 2006: Oakwood Healthcare, Inc., 348 N.L.R.B. 686 (2006), Croft

Metals, Inc., 348 N.L.R.B. 717 (2006), and Beverly Enterprises-Minnesota, Inc.,

d/b/a Golden Crest Healthcare Center, 348 N.L.R.B. 727 (2006) (the Oakwood

Healthcare trilogy).

      In Kentucky River, the Supreme Court rejected the NLRB’s prior

interpretation of the “independent judgment” required for a person to be a

supervisor in 2001. See NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 712-


                                          2
13, 721 (2001). In the Oakwood Healthcare trilogy, the NLRB merely refined the

analysis to be applied in assessing supervisory status, applying the Supreme

Court’s ruling. See Oakwood Healthcare, 348 N.L.R.B. at 686; Croft Metals, 348

N.L.R.B. at 721; Golden Crest Healthcare, 348 N.L.R.B. at 729-30. Because the

Supreme Court rejected the NLRB’s prior interpretation of “independent

judgment” in 2001, before the first hearing before Administrative Law Judge Lana

H. Parke (ALJ Parke), we reject Barstow’s argument. See Ky. River, 532 U.S. at

712-13, 721.

      Barstow was on notice of Kentucky River long before the Oakwood

Healthcare trilogy and the initial hearing before ALJ Parke. See id. Consequently,

Barstow’s effort to introduce “new” evidence of Sanders’s supervisory status after

the initial hearing before ALJ Parke was untimely. See NLRB v. Cutter Dodge,

Inc., 825 F.2d 1375, 1381 (9th Cir. 1987); NLRB v. Don Burgess Constr. Corp.,

596 F.2d 378, 389 (9th Cir. 1979); Yesterday’s Children, Inc., 321 N.L.R.B. 766,

766 n.1 (1996), enforced in relevant part, Yesterday’s Children, Inc. v. NLRB, 115

F.3d 36 (1st Cir. 1997); Michael Konig T/A Nursing Ctr. at Vineland, 318

N.L.R.B. 337, 337 (1995). Thus, we hold that the NLRB did not abuse its

discretion in denying Barstow’s motion to reopen the record. See NLRB v. Hanna

Boys Ctr., 940 F.2d 1295, 1300 (9th Cir. 1991) (explaining that the NLRB “has


                                         3
considerable discretion” in ruling on a motion to reopen the record and its decision

“will not be set aside unless shown to constitute an abuse of discretion”).

      Barstow also argues that the NLRB failed to meaningfully review ALJ

Parke’s decision before a proper quorum. The NLRB argues that we lack

jurisdiction to hear Barstow’s meaningful review claim because Barstow had not

first raised it before the NLRB through a motion for reconsideration. This presents

a novel question regarding regulatory exhaustion in light of 29 C.F.R. §

102.48(d)(3) (“A motion for reconsideration or for rehearing need not be filed to

exhaust administrative remedies”). We need not resolve this jurisdictional

question as Barstow’s claim also fails on the merits. See Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 97 & n.2 (1998) (explaining that unlike Article III

jurisdiction, statutory jurisdiction can be presumed to exist when the merits are

more easily resolved). Barstow received meaningful review from the panel, which

specifically stated that it considered ALJ Parke’s decision and agreed with her for

the reasons stated in a prior order. Because Barstow offers no evidence to rebut

“[t]he presumption of regularity support[ing] the official acts of public officers,”

we reject Barstow’s challenge to the NLRB’s decision-making process. See United

States v. Chem. Found., 272 U.S. 1, 14 (1926); see also NLRB v. Legacy Health

Sys., 662 F.3d 1124, 1126-27 (9th Cir. 2011) (granting the NLRB’s application for


                                           4
enforcement when a three-member panel adopted an order issued by a prior two

member panel for the reasons set forth in the two member panel’s decision).

      Substantial evidence supports the NLRB’s conclusion that Barstow failed to

establish that Sanders was a supervisor in her role as a clinical coordinator. See

Ky. River, 532 U.S. at 713. Thus, we reject Barstow’s argument to the contrary.

Because the NLRB correctly applied the law and its factual findings are supported

by substantial evidence in the record as a whole, we enforce the NLRB’s order.

See Plaza Auto Ctr., Inc. v. NLRB, 664 F.3d 286, 291 (9th Cir. 2011).

      Although not identified as a separate issue in the opening brief, Barstow

suggests that the NLRB acted beyond its jurisdiction in awarding a remedy to

Sanders. We lack jurisdiction to consider this argument because no evidence in the

record suggests that Barstow made this jurisdictional argument to the NLRB. See

Polynesian Cultural Ctr., Inc. v. NLRB, 582 F.2d 467, 472-73 (9th Cir. 1978).

      The Board’s application for enforcement of its order is GRANTED.

      GRANTED.




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