RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0088p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

BRENTWOOD AT HOBART,

Petitioner/Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent/Cross-Petitioner.

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Nos. 10-2141/2209

On Petition for Review and Cross-Petition for Enforcement

of an Order of the National Labor Relations Board.

No. 13-CA-46045.

Decided and Filed: April 2, 2012 

Before: MOORE, SUTTON and DONALD, Circuit Judges.

_________________

COUNSEL

ON BRIEF: David K. Montgomery, JACKSON LEWIS LLP, Cincinnati, Ohio,

Michael J. Passarella, JACKSON LEWIS LLP, Stamford, Connecticut, for Petitioner.

Linda Dreeben, Usha Dheenan, Gregory Lauro, NATIONAL LABOR RELATIONS

BOARD, Washington, D.C., for Respondent. 

_________________

OPINION

_________________

SUTTON, Circuit Judge. Employees of Brentwood at Hobart, an assisted-living

facility in Hobart, Indiana, selected the Service Employees International Union as their

collective-bargaining representative. Claiming that the union engaged in misconduct

during the representation election, Brentwood challenges an order of the National Labor

Relations Board requiring it to bargain with the union. After wrestling with an initial

debate over venue, we deny Brentwood’s petition and grant the Board’s cross-petition

to enforce the order.

1
Nos. 10-2141/2209 Brentwood at Hobart v. NLRB Page 2

I.

In August 2009, the union tried to organize the employees of Brentwood’s

Indiana facility. After it filed a representation petition, the Board scheduled an election

at Brentwood for September 25, 2009. Brentwood employees voted in favor of the union

by a wide margin—twenty-eight in favor and twelve against.

Brentwood objected to the election results a week later, claiming the union

improperly distributed a flyer on September 18 that included photographs of twenty-six

Brentwood employees without their consent. Using employees’ photographs in union

election materials without consent, the Board has held, may taint an election by

conveying the false impression that the employees support the union. See Allegheny

Ludlum Corp., 333 NLRB 734, 738 (2001). After an initial investigation, the Board’s

regional director ordered a hearing on the objections.

At the hearing, Brentwood tried to introduce a second flyer that the union

distributed on August 14 and that also purported to contain photographs of unconsenting

employees. The union’s attorney objected to the admission of the August 14 flyer on

relevance grounds because Brentwood had not mentioned the flyer in its objection. The

hearing officer excluded it. A few weeks later, the hearing officer issued a written

decision rejecting all of Brentwood’s objections. She found no problem with the

September 18 flyer because “the employees whose photographs appeared in the flyer . . .

were told what the picture[s were] for and gave their respective verbal and, in most

cases, written consent.” App’x 69. Appealing to the Board, Brentwood argued that the

hearing officer erred by excluding the August 14 flyer. The Board disagreed, explaining

that because Brentwood’s written objection “expressly alleged that the September 18

flyer was objectionable, the August 14 flyer is not reasonably encompassed within the

scope of that objection,” and therefore the hearing officer “lack[ed] authority” to

consider it. App’x 81. The Board certified the union as the exclusive collectivebargaining representative of Brentwood’s employees.

Brentwood refused to recognize or bargain with the union, insisting its conduct

had tainted the election. The union charged Brentwood with violating the National
Nos. 10-2141/2209 Brentwood at Hobart v. NLRB Page 3

Labor Relations Act. See 29 U.S.C. § 158(a)(5). The Board agreed. Brentwood

Assisted Living Cmty., 355 NLRB No. 149, at *3 (Aug. 27, 2010). Brentwood filed a

petition in our court challenging the Board’s order, and the Board filed a cross-petition

to enforce it. See 29 U.S.C. §§ 160(e), (f). 

II.

The reader may wonder why a dispute over a union election in Indiana belongs

in the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) as opposed to

the Seventh (covering Illinois, Indiana and Wisconsin). We wondered the same thing.

Under the National Labor Relations Act, a company “aggrieved” by an order of

the Board may obtain review in any federal court of appeals where “the unfair labor

practice in question” occurred (the Seventh Circuit), in any court of appeals where the

company “resides or transacts business” (the Seventh Circuit and possibly the Sixth) or

in the D.C. Circuit (not the Seventh or the Sixth). 29 U.S.C. § 160(f). The Board

likewise may file a petition to enforce one of its orders in any court of appeals where

“the unfair labor practice in question occurred” or where the company subject to the

order “resides or transacts business.” 29 U.S.C. § 160(e). (The latter provision says

nothing about the D.C. Circuit.)

Neither Brentwood nor the Board challenges our authority to review their

petitions. That concession matters so long as the requirements of §§ 160(e) and (f) spell

out limitations on venue, as opposed to limitations on subject-matter jurisdiction. See

Wachovia Bank v. Schmidt, 546 U.S. 303, 316 (2006).

Subject-matter jurisdiction defines a court’s “power to adjudicate,” while venue

specifies “where judicial authority may be exercised” based on “convenience” to the

“litigants.” Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167–68 (1939).

The former asks “whether”—whether “the Legislature [has] empowered the court to hear

cases of a certain genre?” The latter asks “where”—where should certain kinds of cases

proceed? Wachovia Bank, 546 U.S. at 316.
Nos. 10-2141/2209 Brentwood at Hobart v. NLRB Page 4

The requirements of §§ 160(e) and (f) go to venue, not subject-matter

jurisdiction. As geographic limitations, they ask the “where”—the venue—“question.”

Wachovia Bank, 546 U.S. at 316. And the answer they give turns on classic venue

concerns—“choosing a convenient forum.” Id. By generally permitting the action to

proceed in the circuit where “the unfair labor practice in question” occurred or where the

company “resides or transacts business,” §§ 160(e), (f), the provisions ensure that the

company will not be forced to defend an action in a faraway circuit. Even the one

exception to these general considerations confirms the statute’s focus on convenience.

The company also may choose to file a petition for review in the D.C. Circuit, the

Board’s home turf, § 160(f), but it is only the company that may invoke the exception.

The Board may not file a petition for enforcement in the D.C. Circuit, unless that is

where the unfair labor practice took place or where the company resides or transacts

business. § 160(e); cf. Fed. Labor Relations Auth. v. Soc. Sec. Admin., 846 F.2d 1475,

1478 (D.C. Cir. 1988).

In considering similar litigation-channeling provisions, the Supreme Court has

uniformly treated them as venue, not jurisdictional, limitations. Most on point is

Panhandle Eastern Pipe Line Co. v. Federal Power Commission, 324 U.S. 635 (1945),

where the Court considered the judicial-review provision of the Natural Gas Act. Like

the National Labor Relations Act, the Natural Gas Act allows a company “aggrieved by

an order issued by the [Federal Power] Commission [to] obtain a review of such order

in the circuit court of appeals . . . for any circuit wherein the natural-gas company to

which the order relates is located or has its principal place of business, or in the [D.C.

Circuit].” Pub. L. No. 75-688, § 19(b), 52 Stat. 821, 831 (1938) (codified as amended

at 15 U.S.C. § 717r(b)). After the Eighth Circuit affirmed the Commission’s order, an

intervening party argued that the court lacked jurisdiction because the company did not

have its principal place of business within the circuit. Panhandle E. Pipe Line, 324 U.S.

at 638. The Court resisted, holding that this geographic limitation “relates to the

convenience of the litigants” and thus “goes to venue not to jurisdiction.” Id. at 638–39.

The Court came to a similar conclusion in reviewing similar provisions in other statutes.

See Henderson v. United States, 517 U.S. 654, 666 (1996) (Suits in Admiralty Act);
Nos. 10-2141/2209 Brentwood at Hobart v. NLRB Page 5

Citizens & Southern Nat’l Bank v. Bougas, 434 U.S. 35, 35–38 (1977) (National Bank

Act); F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 124–25

(1974) (Miller Act). 

The Court’s recent effort to bring “discipline to the use of the term

‘jurisdictional,’” Gonzalez v. Thaler, 565 U.S. ___, 132 S. Ct. 641, 648 (2012),

reinforces this conclusion. Under the new regime, the Court will treat “threshold

limitations on a statute’s scope . . . as jurisdictional” only if Congress “clearly” says so.

Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006). Judged by this “readily

administrable bright[-]line” rule, id., the geographic limitations in §§ 160(e) and (f) fall

on the non-jurisdictional side of the line. The relevant parts of §§ 160(e) and (f) do not

speak in classic “jurisdictional terms.” See Zipes v. Trans World Airlines, Inc., 455 U.S.

385, 394 (1982). While “jurisdictional statutes speak to the power of the court rather

than to the rights or obligations of the parties,” Landgraf v. USI Film Prods., 511 U.S.

244, 274 (1994), these laws speak to the authority of the parties to seek relief in the

courts. The provisions say that “[t]he Board shall have power to petition,” and an

“aggrieved” company “may obtain a review of [the Board’s] order in,” any court of

appeals meeting the geographic requirements. 29 U.S.C. §§ 160(e), (f). Nothing in

either provision indicates that Congress meant to attach jurisdictional consequences to

these geographic strictures.

Stern v. Marshall, 564 U.S. ___, 131 S. Ct. 2594 (2011), brings the point home.

The Bankruptcy Code says that “personal injury tort and wrongful death claims shall be

tried in the district court in which the bankruptcy case is pending, or in the district court

in the district in which the claim arose.” 28 U.S.C. § 157(b)(5). Invoking this provision,

the Stern defendant argued that the bankruptcy court lacked jurisdiction over his

defamation claim and the plaintiff’s counterclaim. 131 S. Ct. at 2606. Not so, the Court

held. Applying the Arbaugh clear-statement rule, it reasoned that § 157(b)(5) is not “a

jurisdictional decree” but “simply specifies where a particular category of cases should

be tried.” Id. at 2607. Because the defendant did not raise an objection before the

bankruptcy court, he consented to that court’s resolution of his claim and the plaintiff’s
Nos. 10-2141/2209 Brentwood at Hobart v. NLRB Page 6

counterclaim. Id. at 2608. Much like these provisions of the Bankruptcy Code, the

geographic limitations in §§ 160(e) and (f) “specif[y] where a particular category of

cases” should be resolved, not whether they may be resolved, and as such they are not

jurisdictional in scope. Id. at 2607.

That §§ 160(e) and (f) use the word “jurisdiction”—saying that the court “shall

have jurisdiction of the proceeding” after the petition is filed and “the jurisdiction of the

court shall be exclusive” after the administrative record is filed—does not change things.

29 U.S.C. § 160(e); see § 160(f). No doubt, the term “jurisdiction” often will be a

straightforward indicator that Congress meant “a statutory limitation on coverage” to be

“jurisdictional.” Arbaugh, 546 U.S. at 502; see, e.g., Stern, 131 S. Ct. at 2607;

Henderson ex rel. Henderson v. Shinseki, 562 U.S. ___, 131 S. Ct. 1197, 1204 (2011).

That is particularly so when the debate concerns the difference between jurisdictional

and claim-processing rules. But the same is not true in a venue/jurisdiction debate.

There is nothing unusual in that setting about having provisions that go to jurisdiction

and venue in the same subsection, which is all that happened here. After using §§ 160(e)

and (f) to spell out which circuit courts the parties should petition for review or

enforcement, Congress used the provisions to establish that, once the petition and the

administrative record are filed, that court’s jurisdiction is exclusive. 

 Nor is it unusual for Congress to answer the “where” and “whether” questions

in agency-review provisions in a like manner, setting forth venue and jurisdictional

requirements in the same subsection. See, e.g., 7 U.S.C. § 136n(b) (Federal Insecticide,

Fungicide, and Rodenticide Act); 12 U.S.C. § 1467a(j) (Home Owners’ Loan Act);

12 U.S.C. § 5563(b)(4) (Consumer Financial Protection Act); 29 U.S.C. § 660(a)

(Occupational Safety and Health Act). One such provision is § 19(b) of the Natural Gas

Act, which directs aggrieved parties to file petitions for review in the circuit where the

“natural-gas company to which the order relates is located or has its principal place of

business.” 15 U.S.C. § 717r(b). When the Court considered the provision in Panhandle

Eastern Pipe Line in 1945, the statute said that “[u]pon the filing of [the] transcript [the]

court shall have exclusive jurisdiction.” 52 Stat. at 831. Despite this jurisdictional
Nos. 10-2141/2209 Brentwood at Hobart v. NLRB Page 7

language, the Court held that the geographic limitation on which court a natural-gas

company could petition for review “goes to venue not to jurisdiction.” Panhandle E.

Pipe Line, 324 U.S. at 638. What was true for the Natural Gas Act remains true for the

National Labor Relations Act. These provisions concern venue, not jurisdiction, and no

“clear evidence” shows otherwise. Henderson, 131 S. Ct. at 1204. 

Nearly thirty years ago, it is true, we briefly referred to the geographic limitations

in §§ 160(e) and (f) in jurisdictional terms, saying that “[n]either a petitioner nor the

Board can confer jurisdiction on this Court when the record is devoid of any evidence

whatsoever that the petitioner transacts business within this judicial circuit.” U.S. Elec.

Motors v. NLRB, 722 F.2d 315, 318 (6th Cir. 1983). But that was in the pre-Arbaugh

days when the courts (ours included) were “less than meticulous” about using the term

“jurisdiction.” Gonzalez, 132 S. Ct. at 648; see Pruidze v. Holder, 632 F.3d 234, 238

(6th Cir. 2011). Under Arbaugh, to say nothing of the Supreme Court’s

venue/jurisdiction decisions, the geographic limitations in §§ 160(e) and (f) are not

jurisdictional. Other circuits have come to the same conclusion, before Arbaugh and

since. See S.L. Indus., Inc. v. NLRB, 673 F.2d 1, 2 n.1 (1st Cir. 1982); NLRB v. Wilder

Mfg. Co., 454 F.2d 995, 998 n.12 (D.C. Cir. 1972); see also NLRB v. Goya Foods of Fl.,

525 F.3d 1117, 1129 n.16 (11th Cir. 2008) (assuming without explanation that

limitations relate to venue); Davlan Eng’g Inc. v. NLRB, 718 F.2d 102, 103 (4th Cir.

1983) (same).

That leaves one other consideration. Even though the geographic limitations in

§§ 160(e) and (f) relate to venue and not jurisdiction, and even though Brentwood and

the Board agree that venue is proper in this circuit, we retain discretion to transfer this

case to a more appropriate venue, such as the Seventh Circuit. U.S. Elec. Motors, 722

F.2d at 319. We see no reason to exercise this discretion, as the dispute has ample

connections to the Sixth Circuit. The company that owns and operates Brentwood,

Emeritus Corporation, also operates assisted-living facilities in this circuit and therefore

“transacts business” here. See NLRB Ltr. Br. of Feb. 27, 2012; Brentwood Ltr. Br. of

Feb. 29, 2012. Nor does Pepsico, Inc. v. NLRB, 382 F.2d 265 (6th Cir. 1967), preclude
Nos. 10-2141/2209 Brentwood at Hobart v. NLRB Page 8

us from considering Emeritus’s connections to the circuit. In that case, we dismissed a

petition filed by Pepsico challenging a Board order concerning one of its wholly owned

subsidiaries in New York. Although Pepsico undoubtedly transacted business within the

circuit, we held that it was not “aggrieved,” as that term is used in § 160(f), because it

“was not a party to the proceeding before the Board” and the Board’s decision did not

require it to do anything. Id. at 266. Here, in contrast, Emeritus is directly involved in

Brentwood’s operations: It leases the building, employs all the workers, holds all the

required licenses and receives all of the revenue from Brentwood. Unless vacated, the

Board’s order will force Emeritus itself to take action, making it “aggrieved” within the

meaning of § 160(f). 

III.

Brentwood urges us to set aside the Board’s order on one ground—that the

hearing officer improperly excluded the August 14 flyer. This decision receives abuseof-discretion review. Kentucky River Cmty. Care, Inc. v. NLRB, 193 F.3d 444, 452 (6th

Cir. 1999). No such error occurred, as the order complied with the Board’s hearing rules

concerning objections to union representation elections.

A party challenging the results of an election must file written objections that

“contain a short statement of the reasons therefor.” 29 C.F.R. § 102.69(a). A regional

director of the Board conducts an initial investigation and resolves the objections on his

own or, if the objections raise “substantial and material factual issues,” orders a hearing

on them. 29 C.F.R. § 102.69(d). If the regional director orders a hearing on the

objections, the hearing officer may resolve only those objections and only those matters

“sufficiently related” to them. Precision Prods. Group, Inc., 319 NLRB 640, 641 n.3

(1995).

Brentwood’s written objection stated: “During the critical period, specifically

on September 18, 2009, [the union] distributed a flyer [that] included the photographs

of twenty-six unit employees. The use of the unit employees’ photographs was without

their prior knowledge and/or consent.” App’x 32. On this record, as the Board

concluded, the hearing officer permissibly excluded the August 14 flyer because it was
Nos. 10-2141/2209 Brentwood at Hobart v. NLRB Page 9

not “reasonably encompassed within the scope of [Brentwood’s written] objection.”

App’x 81.

Brentwood counters that, although its objection mentions only the September 18

flyer, the first four words of the objection—“[d]uring the critical period”—reasonably

encompass any other flyers that the union distributed leading up to the election. That

may be a plausible reading of the objection, we suppose, but the Board’s reading of it

is surely the more natural one. The prefatory language explains why the September 18

flyer is objectionable. If the union had not distributed it “[d]uring the critical

period”—during the lead-up to the election—it could not have improperly swayed the

voting employees. The objection gives no hint that Brentwood had a problem with other

flyers. If a plaintiff files a lawsuit claiming that, “during my vacation in Florida,

specifically on February 18, defendant struck me with his car,” a court would be well

within its discretion to exclude evidence that the same defendant also hit the plaintiff

with his car on January 14. The hearing officer likewise did not abuse her discretion in

excluding the August 14 flyer.

Brentwood insists that the hearing officer failed to comply with other evidentiary

rulings by the Board. In Fiber Industries, 267 NLRB 840 (1983), it points out, the

union’s written objections identified certain pieces of campaign literature, but the Board

affirmed the hearing officer’s consideration of other pieces of literature because they

were “sufficiently related” to the union’s objection. Id. at 840 n.2. And in

Hollingsworth Management Service, 342 NLRB 556 (2004), the Board affirmed the

hearing officer’s consideration of electioneering by some third parties even though the

union’s written objection referred only to “electioneering by the union, its officers,

agents and representatives.” Id. at 557 n.3. 

Brentwood has a point. Today’s evidentiary ruling is not entirely consistent with

these earlier rulings by other hearing officers. But, as we explained in Conley v. NLRB,

520 F.3d 629, 639 (6th Cir. 2008), this kind of inconsistency by itself does not justify

vacating the Board’s order. In Conley, the employer tried to demonstrate that the

Board’s hearsay ruling was inconsistent with prior cases in which hearing officers had
Nos. 10-2141/2209 Brentwood at Hobart v. NLRB Page 10

excluded similar evidence, but we found that effort to be “of little import.” Id. at 640.

“[T]he more germane inquiry,” we explained, was whether the evidentiary ruling “was

reasonable under the circumstances and limited . . . to the practicalities of the situation.”

Id. at 640–41. It was, we held. Id. The same is true here. Had the Board admitted the

flyer, that might well have blindsided the union, which had every reason to prepare to

defend only the flyer identified in the objection. See Factor Sales, Inc., 347 NLRB 747,

747–48 (2006); FleetBoston Pavilion, 333 NLRB 655, 657 (2001). 

Pressing the point, Brentwood claims that excluding the August 14 flyer was

“akin to denying [it] an evidentiary hearing at all.” Br. at 26. This might come as a

surprise to the Board’s hearing officer, who heard from seventeen different witnesses

during a hearing that spans 274 pages of transcript. And it might come as a surprise to

Brentwood’s attorney, who responded to this (allegedly) grievous decision by saying,

“That’s fine.” App’x 399. Brentwood received a full hearing on the objections it

submitted, and the hearing officer’s exclusion of evidence that she reasonably viewed

as beyond the scope of the written objections does not amount to a denial of a hearing

altogether.

Brentwood also argues that the Board’s rule prohibiting hearing officers from

expanding hearings beyond matters that are reasonably encompassed by the written

objections violates due process. But the Board, like all administrative agencies, has

broad authority to fashion its own procedures for developing the evidence on which it

bases its decisions. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519,

543–45 (1978). The Board’s limitation on the authority of hearing officers fits

comfortably within that broad authority. In the end, Brentwood overlooks a simple

reality: All it had to do to allow inquiry into the August 14 flyer was to mention the

flyer in its written objections. Brentwood’s failure to do so does not create a due process

claim in Brentwood’s favor.
Nos. 10-2141/2209 Brentwood at Hobart v. NLRB Page 11

IV.

For these reasons, we deny Brentwood’s petition for review, and we grant the

Board’s cross-petition to enforce its order.