United Nurses Associations of California v. National Labor Relations Board

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED NURSES ASSOCIATIONS OF No. 15-70920
CALIFORNIA/UNION OF HEALTH
CARE PROFESSIONALS, NUHHCE, NLRB No.
AFSCME, AFL-CIO, 31-CA-029713
Petitioner,
VERITAS HEALTH SERVICES, INC.,
Intervenor,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent.
2 UNITED NURSES ASS’NS OF CAL. V. NLRB
VERITAS HEALTH SERVICES, INC., No. 15-71045
DBA Chino Valley Medical Center,
Petitioner, NLRB No.
31-CA-029713
UNION OF HEALTH CARE
PROFESSIONALS; UNITED NURSES
ASSOCIATIONS OF CALIFORNIA,
Petitioners-Intervenors,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent.
UNITED NURSES ASS’NS OF CAL. V. NLRB 3
NATIONAL LABOR RELATIONS No. 15-71390
BOARD,
Petitioner, NLRB No.
31-CA-029713
v.
VERITAS HEALTH SERVICES, INC., OPINION
Respondent,
UNION OF HEALTH CARE
PROFESSIONALS; UNITED NURSES
ASSOCIATIONS OF CALIFORNIA,
Respondents-Intervenors.
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted December 7, 2016
Pasadena, California
Filed September 11, 2017
Before: Harry Pregerson, Jacqueline H. Nguyen,
and John B. Owens, Circuit Judges.
Opinion by Judge Nguyen
4 UNITED NURSES ASS’NS OF CAL. V. NLRB
SUMMARY *
Labor Law
The panel denied the Chino Valley Medical Center’s
petition for review of the National Labor Relations Board’s
order determining that Chino Valley committed unfair labor
practices before and after a nurses union election in violation
of the National Labor Relations Act (“NLRA”), except as to
an incidental petitioning argument that the panel dismissed
for lack of jurisdiction; enforced the Board’s order; granted
the United Nurses Associations of California/Union of
Health Care Professionals, NUHHCE, AFSCME, AFL-CIO
(the “Union”)’s petition for review; and remanded for the
Board to address rescission of Chino Valley’s written policy
during the compliance stage.
The panel held that Chino Valley’s due process argument
– that the administrative law judge allegedly exhibited anti-
employer bias – was without merit. Because Chino Valley
did not otherwise contest the vast majority of the Board’s
unfair labor practices findings, the panel summarily enforced
the portions of the Board’s order that Chino Valley opposed
only on due process grounds.
The panel next considered Chino Valley’s substantive
challenges to two unfair labor practices. First, the panel held
that substantial evidence supported the finding that Chino
Valley committed an unfair labor practice in violation of
Sections 8(a)(1) and (3) of the NLRA by firing Ronald
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED NURSES ASS’NS OF CAL. V. NLRB 5
Magsino for his union activity because the law and the
record supported the finding that Magsino’s firing was
pretextual and that he was not a supervisor (where,
generally, the NLRA protects the rights of employees but not
supervisors). Second, the panel held that Chino Valley
violated Section 8(a)(1) of the NLRA by serving subpoenas
seeking information about confidential union activity
protected by Section 7 of the NLRA, including
communications with Union representatives and signed
authorization cards.
The panel held that the Noerr-Pennington doctrine,
which provides that concerted efforts to petition the
government that would otherwise be illegal may nonetheless
be protected by the First Amendment’s Petition Clause
where certain criteria were met, did not immunize Chino
Valley from unfair labor practice liability.
The panel held that Chino Valley’s unfair labor practices
warranted the Board’s remedy that Chino Valley schedule
meetings of all its employees, during paid work time, so that
the Board’s Notice to Employees could be read to them with
a Union representative present. Rejecting Chino Valley’s
challenges to the remedy, the panel held that nothing in the
NLRA protected an employer from the embarrassment it
might experience as a byproduct of the Board’s remedy, and
no authority required a more detailed analysis than the Board
or administrative law judge provided in these cases.
The panel turned to the Union’s petition challenging the
portion of the administrative law judge’s decision that
declined to address whether Chino Valley’s written policy
should be rescinded. The panel granted the Union’s petition
and remanded to the Board for a resolution of that narrow
issue at the compliance stage of the proceeding because due
6 UNITED NURSES ASS’NS OF CAL. V. NLRB
process did not bar the relief the Union sought – rescission
of the written policy.
COUNSEL
Theodore Richard Scott (argued) and Elizabeth D. Parry,
Littler Mendelson P.C., San Diego, California, for
Interevenor/Petitioner/Cross-Respondent (Veritas).
Ryan Spillers (argued), Gilbert & Sackman, Los Angeles,
California; Lisa C. Demidovich, United Nurses Associations
of California/Union of Health Care Professionals,
NUHHCE, AFSCME, AFL-CIO, San Dimas, California; for
Petitioner-Intervenor/Cross-Respondent (UNAC).
Barbara Ann Sheehy (argued), Attorney; Jill A. Griffin,
Supervisory Attorney; Linda Dreeben, Deputy Associate
General Counsel; John H. Ferguson, Associate General
Counsel; Jennifer Abruzzo, Deputy General Counsel;
Richard F. Griffin, Jr., General Counsel; National Labor
Relations Board, Washington, D.C.; for Respondent
(NLRB).
UNITED NURSES ASS’NS OF CAL. V. NLRB 7
OPINION
NGUYEN, Circuit Judge:
After its nurses voted to unionize by almost a 2-to-1
margin in April 2010, Veritas Health Services, Inc., d/b/a
Chino Valley Medical Center (“CVMC”) refused to bargain
and challenged the election on several unsuccessful grounds.
See Veritas Health Servs., Inc. v. NLRB, 671 F.3d 1267,
1269–70 (D.C. Cir. 2012). CVMC now appeals the
determination that it committed serious and widespread
unfair labor practices before and after the Union election in
violation of the National Labor Relations Act (“NLRA”).
While CVMC makes a global due process argument and
contests the scope of the National Labor Relations Board’s
remedial order, it challenges on the merits only two of the
unfair labor practices—the discharge of a prominent union
supporter and service of subpoenas seeking information
about union activity. Because the Board’s conclusions are
supported by precedent and substantial evidence, we reject
these arguments and enforce the Board’s order.
In addition, United Nurses Associations of
California/Union of Health Care Professionals, NUHHCE,
AFSCME, AFL-CIO (the “Union”) petitions for review so
the Board may consider on remand an issue that the
Administrative Law Judge (“ALJ”) declined to address
below: whether CVMC’s written policy banning employees
from communicating with the media should be rescinded as
an unfair labor practice. Because the complaint alleged an
oral ban to the same effect and CVMC fully litigated the
issue below, we grant the Union’s petition and remand for
the Board to address the issue during the compliance stage
of these proceedings.
8 UNITED NURSES ASS’NS OF CAL. V. NLRB
I. Background
The Board made extensive findings detailing CVMC’s
threats, coercion, and retaliation against its employees. We
focus here on the two unfair labor practices that are the
subject of CVMC’s challenges on the merits.
CVMC’s discharge of Magsino
Ronald Magsino worked for CVMC from January 2005
until CVMC discharged him on May 20, 2010—less than
two months after the Union won its election and just ten days
after CVMC’s unsuccessful May 10 hearing challenging the
election results. The day Magsino was fired, human
resources director Arti Dhuper told Magsino that he was
being fired for violating the Health Insurance Portability and
Accountability Act (“HIPAA”) by giving the human
resources department a patient’s partially redacted medical
records to defend himself in a disciplinary proceeding earlier
that month. That disciplinary proceeding arose from
CVMC’s allegation that Magsino had violated an internal
policy to retake a patient’s vital signs. In telling Magsino
that his discipline would not be overturned, Dhuper did not
address (nor has CVMC ever refuted) Magsino’s defense
that CVMC had no policy requiring him to re-take the
patient’s vital signs. The ALJ concluded, and the Board
affirmed, that CVMC’s invocation of HIPAA was a pretext
for discharging Magsino because of his union activity, a
finding that CVMC now challenges on appeal.
Magsino was a visible supporter of the Union; he talked
to his fellow nurses, arranged meetings, and appeared in
flyers distributed by the Union. Shortly before the Union
election, CVMC’s chief medical officer James Lally showed
Magsino one of the Union flyers that bore his picture and
called Magsino a “movie star.” In one of several unfair labor
UNITED NURSES ASS’NS OF CAL. V. NLRB 9
practices that CVMC engaged in, Lally told Magsino that he
was seen on camera talking to a group of nurses during work
hours and that doing so was a ground for termination.
CVMC also engaged in other serious and widespread unfair
labor practices, including unilaterally imposing, about a
month after the Union election, a new tardiness policy that
eliminated the seven-minute grace period that nurses had
previously enjoyed when clocking into their shifts. On the
morning of May 5—about a week before CVMC’s
unsuccessful hearing challenging the Union election—
Magsino was disciplined for tardiness under this new policy,
which was the first time he had ever been disciplined for
clocking in within the seven-minute period.
Later on May 5, emergency room director Cheryl Gilliatt
summoned Magsino and showed him a final written warning
for unsatisfactory work performance. Gilliatt claimed that
the California Department of Public Health (“DPH”) had
done a random audit and found that Magsino had not re-
taken a patient’s vital signs before releasing her from the
emergency room a month earlier, on April 1. The final
written warning listed the patient’s medical record number
and stated that not re-taking the patient’s vital signs was a
violation of CVMC’s policy.
When Gilliatt showed him CVMC’s patient
reassessment policy, Magsino pointed out that the policy did
not require re-taking a patient’s vital signs. Gilliatt also
showed Magsino unredacted patient records (nursing notes
that he had prepared and an emergency room report) that
contained the patient’s name, date of birth, medical record
number, medical condition, course of treatment, doctor’s
dictation about the visit, and transaction number. Magsino
asked if he could leave to review the records in more detail.
Gilliatt said he could view and print them and gave Magsino
10 UNITED NURSES ASS’NS OF CAL. V. NLRB
the patient’s name and medical record number on a piece of
paper.
Magsino went to a nursing station where he accessed the
same records, printed the emergency report, and then
redacted the patient’s name with a marker. To ensure the
name could not be seen, he copied that redacted version, kept
the copy, and destroyed the rest. Magsino then went to see
Gilliatt with a colleague and again pointed out that CVMC’s
policy did not require re-taking vital signs. Gilliatt
responded that she did not make the warning and that
management simply asked her to give it to him.
After the meeting, Gilliatt found Magsino at the nursing
station looking through materials and taking notes. She told
him to stop preparing his disciplinary defense at work and to
do his research at home. The next day, on May 6, Gilliatt
gave Magsino a copy of CVMC’s internal grievance
procedure and again told him to review the medical record
at home and then submit his dispute.
Following Gilliatt’s advice, Magsino filed a grievance
on May 12 with the human resources department to
challenge his discipline. He explained that CVMC’s policy
did not require nurses to re-take vital signs, especially given
that the treating doctor was aware of the patient’s elevated
blood pressure, reminded the patient to take her blood
pressure medication, and approved her discharge from the
emergency room less than an hour after she had been
admitted for an unrelated condition (flank pain). Magsino
supported his grievance with several documents, including a
copy of the emergency room report that contained the same
medical record and transaction numbers that Gilliatt had
given him, with the patient’s name redacted. In addition,
Magsino attached a letter from the treating doctor, which
included the same transaction number.
UNITED NURSES ASS’NS OF CAL. V. NLRB 11
Magsino also provided two dozen testimonials from
other doctors, emergency medical technicians, coworkers,
and patients who praised his skills. These testimonials
detailed the ways in which Magsino was an “outstanding
nurse” whose diligence, knowledge, and compassion over
the years had earned doctors’ “complete confidence and
support” as well as the admiration of his coworkers, several
of whom he had mentored and inspired to become nurses
themselves. Magsino’s colleagues commended him for
being a “team player” and a “great patient advocate” with
such “excellent bedside manner” that patients complimented
him to others. According to his coworkers, he was “one of
the best nurses” at CVMC, “one of our greatest assets,” and
one who always went “above and beyond” his duties.
On May 14, chief nursing officer Linda Ruggio
summoned Magsino to a meeting in her office with Gilliatt.
Ruggio told Magsino that printing the patient’s chart on May
5 was a HIPAA violation. Magsino explained that he had
done so with Gilliatt’s permission to defend himself in the
disciplinary proceeding and that Gilliatt had disclosed to him
even more information—all unredacted—in disciplining
him. Ruggio then accused Magsino of committing
additional HIPAA violations by copying the partially
redacted record (to hide the patient’s name), submitting it
with his grievance, and retaining a copy in his backpack.
Around the same time, another nurse and Union
supporter, Yesenia DeSantiago, received a final written
warning for the same two violations that CVMC claims
justify Magsino’s firing: (1) not re-taking a patient’s vital
signs; and (2) accessing and printing that patient’s
information in defending against the ensuing disciplinary
proceeding. As with Magsino, CVMC was unmoved by
DeSantiago’s explanation that Gilliatt had permitted her to
12 UNITED NURSES ASS’NS OF CAL. V. NLRB
use the patient information and that she could not have
defended herself without it. However, DeSantiago was told
that she would not be fired because the violations were “for
two different things,” given that one was for treatment of a
patient and the other was a violation of HIPAA. In contrast,
CVMC’s termination notice to Magsino characterized these
two violations—as well as his discipline under CVMC’s
illegal tardiness policy—as “similar,” thereby creating the
appearance that he had engaged in multiple “similar”
violations. 1
While CVMC aggressively pursued alleged HIPAA
violations among its union supporters, no manager was
disciplined for engaging in similar acts. For example, as part
of the disciplinary process, Gilliatt and the treating doctor
accessed and internally distributed the same patient’s
information. And, in contrast with the redacted documents
Magsino submitted to the human resources department,
Gilliatt disseminated unredacted records. Yet, neither
Gilliatt nor the treating doctor were investigated or
disciplined.
In addition, four other employees received only verbal or
written warnings for disseminating patient information
externally. CVMC gave a verbal warning to three
employees who faxed several types of patient information to
external recipients, including medical diagnoses, social
1
CVMC’s mischaracterization of the tardiness, vital signs, and
HIPAA infractions as “similar” violations appears to have been an effort
to elevate Magsino into the highest level of CVMC’s discipline policy,
for which termination is recommended. This highest level is reserved
for the most egregious HIPAA violations, namely, “an unacceptable
level of previous violations and accompanying verbal disclosure of
patient information regarding treatment and status.” Obviously, that
description does not fit Magsino’s conduct.
UNITED NURSES ASS’NS OF CAL. V. NLRB 13
security numbers, and financial information. Another
employee received only a written warning for repeatedly
sharing patient information externally, including leaving a
financial chart in the bathroom where it was found by a
customer.
On May 19, the day before Magsino’s termination,
CVMC’s own internal investigation concluded that Magsino
and DeSantiago should receive only retraining and a written
warning. CVMC’s investigation concluded that Magsino
committed “no breach when [he] accessed the computer to
review the electronic record,” but that his “unauthorized”
printing, copying, removal from the hospital, and inclusion
in his grievance of the partially redacted patient records was
a HIPAA breach.
On May 20, CVMC fired Magsino without waiting for
the results of the DPH investigation (which CVMC itself had
initiated) into whether any HIPAA breach had, in fact,
occurred. Seven days later, DPH concluded that “no breach
actually occurred.” DPH found that CVMC’s claim to the
contrary was “unsubstantiated” because “no information
was shared.” Instead, Magsino and DeSantiago’s use of
patient information was simply “for personal use in
defending themselves.”
Magsino’s status as an employee
In the proceedings below, CVMC sought to excuse its
firing of Magsino on the ground that his occasional shifts as
a relief charge nurse qualified him as a supervisor under the
NLRA, thereby depriving him of its protections. The Board
rejected this affirmative defense.
As the ALJ noted, CVMC and the Union had stipulated
in 2008 and in 2010 to the supervisory status of certain
14 UNITED NURSES ASS’NS OF CAL. V. NLRB
named charge nurses, none of whom are Magsino. The ALJ
also refused to credit Gilliatt’s testimony in response to
several leading questions about Magsino’s supervisor status,
citing her demeanor and evasive answers. Gilliatt testified
that a charge nurse assigns Registered Nurses (“RNs”) to
different rooms in the emergency department based on an
“assessment” of the RNs’ “experience,” “skill set,” and
“acuity of the patient.” Gilliatt testified that, as a charge
nurse, she had authority to assign work and that Magsino’s
“duties” and “authority” as a relief charge nurse were “no
different” from hers. However, she also admitted that relief
charge nurse shifts were assigned only when the regular
charge nurse was unavailable (which, as we explain later,
makes a big difference when determining supervisor status).
After rejecting CVMC’s argument that Magsino
engaged in supervisory functions as a relief charge nurse, the
ALJ did not reach the issue of whether Magsino’s work as a
relief charge nurse was a regular and substantial portion of
his time. However, testimony by Magsino and another
employee, Marlene Bacani, both of whom the ALJ found
credible, established that Magsino’s shifts as a relief charge
nurse decreased in 2010 from ten shifts in February to six
shifts in April to only three shifts in May. 2
2
Bacani testified that Magsino worked ten shifts as a charge nurse
in February 2010. Contrary to CVMC’s contention, Magsino’s
testimony does not contradict this statement, as he could not recall with
certainty the number of shifts he worked in February 2010. Furthermore,
CVMC’s counsel conceded during Magsino’s cross examination that the
number of shifts would be better reflected by documents (to which
CVMC has not directed this court).
UNITED NURSES ASS’NS OF CAL. V. NLRB 15
CVMC’s subpoenas seeking information about
union activity
CVMC also challenges on appeal the finding that CVMC
committed an unfair labor practice by serving subpoenas
seeking information protected by the NLRA.
Around May 2010 and while CVMC was preparing to
litigate its objections to the Union election, CVMC served
subpoenas on its nurses and the Union demanding, among
other things, the production of all communications with
union representatives, all documents relating to union
membership card solicitation, and all membership cards
signed by RNs. The subpoenas advised that nurses who had
never been employed as “Charge Nurses” could produce the
documents to a hearing officer at “an in camera inspection,
whereupon only non-privileged documents that are relevant
to [CVMC’s] Objections are provided to [CVMC].”
At the hearing on CVMC’s objections to the Union
election, the ALJ revoked portions of these subpoenas and
redacted some documents to prevent disclosure of the names
of nurses who had attended Union meetings or otherwise
supported the Union. See Veritas, 671 F.3d at 1274. The
ALJ reasoned that this information was protected by the
NLRA and was not relevant to CVMC’s election objection.
The D.C. Circuit affirmed these rulings in an opinion
rejecting CVMC’s several election objections. Veritas,
671 F.3d at 1274.
Proceedings before the ALJ and the Board
In a thorough decision, the ALJ found that CVMC
committed several unfair labor practices by engaging in
threats, coercion, and retaliation, including the conduct
described above. The ALJ ordered CVMC to cease and
16 UNITED NURSES ASS’NS OF CAL. V. NLRB
desist from its illegal conduct, which included CVMC’s oral
ban on employees communicating with the media. The
Union urged the ALJ to also rescind CVMC’s written policy
to the same effect, which CVMC itself had introduced and
authenticated. However, the ALJ declined to do so because,
while the oral ban was alleged as an unfair labor practice in
the complaint, the written policy was not and it was not
pursued by the General Counsel.
To remedy CVMC’s serious and widespread unfair labor
practices, the ALJ ordered that, among other things, CVMC
schedule meetings with all its employees during paid work
time so that, with a Union representative present, the Board’s
Notice to Employees could be read to them by management
or a Board agent. The Board affirmed the ALJ’s rulings,
findings, and conclusions, with a couple of modifications to
the ordered remedy that are not at issue here. CVMC and
the Union filed petitions for review, and the Board filed a
cross-application for enforcement.
II. Standard of Review
A court must uphold a Board decision “when substantial
evidence supports its findings of fact and when the agency
applies the law correctly.” Sever v. NLRB, 231 F.3d 1156,
1164 (9th Cir. 2000). The Board’s findings of fact are
conclusive if supported by substantial evidence on the record
as a whole. See 29 U.S.C. § 160(e); Universal Camera
Corp. v. NLRB, 340 U.S. 474, 477, 488 (1951). As to factual
findings, a court may not “displace the Board’s choice
between two fairly conflicting views, even though the court
would justifiably have made a different choice had the
matter been before it de novo.” Universal Camera, 340 U.S.
at 488.
UNITED NURSES ASS’NS OF CAL. V. NLRB 17
The Board’s credibility findings are entitled to “special
deference.” Sever, 231 F.3d at 1164. A court will not
reverse the Board’s credibility determinations unless they
are “inherently incredible or patently unreasonable.” Retlaw
Broad. Co. v. NLRB, 53 F.3d 1002, 1006 (9th Cir. 1995).
The Board is vested with “broad discretion to devise
remedies that effectuate the policies of the Act.” Sure-Tan,
Inc. v. NLRB, 467 U.S. 883, 898–99 (1984). We therefore
review the Board’s remedial order only for a “clear abuse of
discretion,” Cal. Pac. Med. Ctr. v. NLRB, 87 F.3d 304, 308
(9th Cir. 1996), meaning that the Board’s remedial order
“should stand unless it can be shown that the order is a patent
attempt to achieve ends other than those which can fairly be
said to effectuate the policies of the Act.” Va. Elec. & Power
Co. v. NLRB, 319 U.S. 533, 540 (1943).
We defer to any “reasonably defensible” interpretation
of the NLRA by the Board. Retlaw, 53 F.3d at 1005. Where
the NLRA is ambiguous such that the Board must choose
between conflicting reasonable interpretations, courts “must
respect the judgment of the agency empowered to apply the
law.” Holly Farms Corp. v. NLRB, 517 U.S. 392, 398–99
(1996).
III. Discussion
CVMC’s meritless due process argument does not
preclude summary enforcement of the Board’s
order
CVMC argues that it was denied due process because the
ALJ allegedly exhibited anti-employer bias. While CVMC
cites the voluminous record, it makes no substantive
argument and omits any legal authority suggesting how the
18 UNITED NURSES ASS’NS OF CAL. V. NLRB
ALJ erred. 3 Well-established law, including controlling
Supreme Court precedent, provides that no due process
violation or bias can be inferred from the conduct challenged
here: adverse credibility determinations of an employer’s
witnesses, 4 evidentiary rulings unfavorable to an employer, 5
questioning of an employer’s witnesses, 6 and alleged
expressions of impatience or anger. 7 Therefore, even if
CVMC’s characterization of the ALJ’s conduct were correct
(which it is not), CVMC has identified nothing “so extreme
as to display clear inability to render fair judgment.” Liteky
v. United States, 510 U.S. 540, 551 (1994).
Because CVMC’s due process challenge is without merit
and CVMC does not otherwise contest the vast majority of
the Board’s unfair labor practices findings, we summarily
enforce the portions of the Board’s order that CVMC
opposes only on due process grounds. See Diamond Walnut
Growers, Inc. v. NLRB, 53 F.3d 1085, 1087 (9th Cir. 1995);
NLRB v. Sav-On-Drugs, Inc., 709 F.2d 536, 542 (9th Cir.
1983). We next consider CVMC’s substantive challenges to
two unfair labor practices in light of the Board’s findings that
CVMC engaged in other unfair labor practices. See
3
The two cases relied upon by CVMC actually held that the
challenged administrative hearings “comport[ed] with the requirements
of due process.” Hannah v. Larche, 363 U.S. 420, 451 (1960); see also
Withrow v. Larkin, 421 U.S. 35, 58 (1975).
4
NLRB v. Pittsburgh S.S. Co., 337 U.S. 656, 659–60 (1949).
5
NLRB v. Phaostron Instrument & Elec. Co., 344 F.2d 855, 859 (9th
Cir. 1965); Hedison Mfg. Co. v. NLRB, 643 F.2d 32, 35 (1st Cir. 1981).
6
NLRB v. Cent. Press Cal., 527 F.2d 1156, 1157 (9th Cir. 1975).
7
Liteky v. United States, 510 U.S. 540, 556 (1994).
UNITED NURSES ASS’NS OF CAL. V. NLRB 19
Torrington Extend-A-Care Emp. Ass’n v. NLRB, 17 F.3d
580, 590 (2d Cir. 1994).
CVMC violated Section 8(a)(1) and (3) by firing
Magsino
Substantial evidence supports the finding that CVMC
committed an unfair labor practice in violation of Section
8(a)(1) and (3) of the NLRA, 29 U.S.C. § 158(a)(1) and (3),
by firing Magsino for his union activity. An employer
violates Section 8(a)(1) and (3) by, among other things,
discharging or disciplining an employee for his or others’
protected activity, such as supporting efforts to unionize.
NLRB v. HTH Corp., 693 F.3d 1051, 1059–60 (9th Cir.
2012); see 29 U.S.C. § 157. To determine an employer’s
motivation for taking an adverse employment action, the
Board uses the well-established test set forth in Wright Line,
251 N.L.R.B. 1083 (1980). NLRB v. Transp. Mgmt. Corp.,
462 U.S. 393, 399–403 (1983), overruled on other grounds
by Office of Workers’ Comp. Programs v. Greenwich
Collieries, 512 U.S. 267, 276–78 (1994).
Under Wright Line, the General Counsel must make a
showing “sufficient to support the inference that protected
conduct was a ‘motivating factor’ in the employer’s
decision.” Healthcare Emps. Union, Local 399, v. NLRB,
463 F.3d 909, 919 (9th Cir. 2006) (quoting Wright Line,
251 N.L.R.B. at 1089). The Board may infer a
discriminatory motive from direct or circumstantial
evidence. New Breed Leasing Corp. v. NLRB, 111 F.3d
1460, 1465 (9th Cir. 1997). After the General Counsel
makes this showing, “the burden will shift to the employer
to demonstrate that the same action would have taken place
even in the absence of protected conduct.” Healthcare
Emps. Union, 463 F.3d at 919 (quoting Wright Line,
251 N.L.R.B. at 1089). An employer cannot prove this
20 UNITED NURSES ASS’NS OF CAL. V. NLRB
affirmative defense where its “asserted reasons for a
discharge are found to be pretextual.” In re Stevens Creek
Chrysler Jeep Dodge, Inc., 357 N.L.R.B. 633, 637 (2011).
i. The General Counsel made a strong showing
of improper motive
An unlawful motive may be established in several ways,
including evidence of “the employer’s knowledge of the
employee’s union activities, the employer’s hostility toward
the union, and the timing of the employer’s action.”
Healthcare Emps. Union, 463 F.3d at 920–22 (internal
quotation marks omitted). All those indicia of
discriminatory motive are present here. In addition to calling
out Magsino as a Union “movie star,” CVMC expressed its
anti-union animus through several unfair labor practices,
including a retaliatory tardiness policy under which Magsino
was disciplined. CVMC also fired Magsino less than two
months after the Union won its election and less than two
weeks after CVMC’s unsuccessful hearing challenging the
election results. Accordingly, substantial evidence supports
the finding that union activity was a motivating factor in
Magsino’s discharge.
ii. Substantial evidence supports the finding that
CVMC invoked HIPAA as a pretext
CVMC’s termination of Magsino has all the hallmarks
of a pretextual firing, including deviations from its internal
practice, disparate treatment, and ex post facto justifications.
See Healthcare Emps. Union, 463 F.3d at 922–23; Lucky
Cab Co., 360 N.L.R.B. 271, 274 (2014). As summarized
above, CVMC expressly authorized Magsino to engage in
the conduct for which CVMC claims it fired him. Seven
other individuals either were not disciplined or received
lesser discipline for engaging in acts similar to or more
UNITED NURSES ASS’NS OF CAL. V. NLRB 21
egregious than those for which CVMC claims it fired
Magsino. In responding to Magsino’s purported HIPAA
violation, CVMC failed to follow its own internal policies
and ultimately fired him the day after its own internal
investigation recommended that he receive only retraining
and a written warning. CVMC also fired Magsino even
though a DPH investigation concluded that no HIPAA
breach actually occurred.
Any one of these factual findings alone would be enough
to establish pretext, and cumulatively they provide
overwhelming evidence that CVMC acted with a
discriminatory motive in firing Magsino. CVMC
nonetheless argues that it could have discharged Magsino
because he violated CVMC’s internal policies or HIPAA and
that, in any event, CVMC had a good-faith belief that he had
done so. The Board did not err in concluding that CVMC
failed to meet its burden under any of these theories. We
address each of CVMC’s arguments in turn.
CVMC invokes an affirmative defense that, even if
Magsino did not violate HIPAA, he violated CVMC’s
internal policies by not re-taking a patient’s vital signs and
by using that patient’s medical records in the disciplinary
proceeding. Substantial evidence supports the Board’s
rejection of this ex post facto justification.
At the outset, we note that CVMC’s assertion that it
could have fired Magsino for not re-taking vital signs has no
record support. CVMC identifies no evidence that it had an
internal policy requiring Magsino to do so, that he actually
violated the policy, or that CVMC could have lawfully fired
him as a result. And, unlike in the case relied upon by
CVMC, Butler-Johnson Corp. v. NLRB, 608 F.2d 1303,
1308 (9th Cir. 1979), the ALJ here made factual findings that
CVMC acted with an unlawful motive.
22 UNITED NURSES ASS’NS OF CAL. V. NLRB
Nor is CVMC correct that Magsino exceeded the scope
of his authorization by using the patient’s information to
defend himself during the disciplinary proceeding. Even
assuming CVMC could lawfully restrict its employees’ use
of patient information in such a manner, the evidence shows
that Gilliatt twice authorized Magsino to use the patient file
to defend himself, including engaging in the conduct for
which CVMC ostensibly fired him. Magsino’s credited
testimony was that, in addition to telling him on May 5 that
he could view and print medical records, Gilliatt told him on
May 6 “to review the . . . medical record and the dispute and
submit it” and that he could review the medical record “at
home”—a review which obviously required printing,
copying, and removing the record from the hospital. In
arguing to the contrary, CVMC simply ignores this
testimony, misrepresents the ALJ’s findings about it, and
relies on testimony by Gilliatt that the ALJ expressly found
not credible. But the ALJ’s credibility determinations are
entitled to “special deference,” and CVMC’s
misrepresentations of the record significantly undermine its
own argument on appeal. 8 Sever, 231 F.3d at 1164.
CVMC also fleetingly alludes to other internal policies
and California law that it suggests Magsino violated by using
patient information to defend himself in the disciplinary
proceeding. See Cal. Health & Safety Code § 1280.15; Cal.
Code Regs. tit. 22 § 70707. This perfunctory argument is
inadequately briefed and therefore waived. James River Ins.
8
For example, CVMC’s reply brief asserts that “the ALJ made no
finding that permission was given to remove patient records.” Not only
is that untrue, CVMC in fact challenged below the very finding that it
now claims the ALJ did not make, namely, that “Gilliatt authorized
Magsino to print a copy of [the] patient’s emergency room report and
take it home with him.”
UNITED NURSES ASS’NS OF CAL. V. NLRB 23
Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 n.1 (9th Cir.
2008). But even on the merits, CVMC points to no language
in these internal policies and California law that support its
position. Nor is there any basis to reverse the ALJ’s finding
that CVMC’s internal policies “would objectively lead
[Magsino] to believe he was allowed to access the medical
records.”
CVMC alternatively argues, without authority, that
Magsino’s use of patient information in a disciplinary
proceeding falls outside the protections of HIPAA’s internal
grievance procedure. CVMC’s interpretation is contrary to
the plain language of HIPAA’s internal grievance procedure
regulations, 9 which permits “disclosure to an employee
and/or employee representative, for example when the
employee needs protected health information to demonstrate
that the employer’s allegations of improper conduct are
untrue.” 10 More importantly, CVMC’s reading of HIPAA
would yield the absurd result of turning a disciplinary
proceeding into a Kafkaesque ordeal whereby an employee
cannot see or submit the very information by which she
seeks to challenge her discipline. Nor can CVMC’s position
be squared with the findings by DPH—the state agency that
investigated the supposed HIPAA violation—that “no
breach actually occurred” and that CVMC’s claim to the
9
45 C.F.R. § 164.506(c)(1) (“A covered entity may use or disclose
protected health information for its own treatment, payment, or health
care operations”); 45 C.F.R. § 164.501(6)(iii) (“Health care operations
means any of the following activities of the covered entity to the extent
that the activities are related to covered functions: . . . Resolution of
internal grievances”).
10
Standards for Privacy of Individually Identifiable Health
Information; Final Rule, 45 C.F.R. Parts 160 and 164, Section 164.501—
Definitions, 65 Fed. Reg. 82462, 82491 (Dec. 28, 2000).
24 UNITED NURSES ASS’NS OF CAL. V. NLRB
contrary was “unsubstantiated” because the patient
information was used to defend against a disciplinary
charge. CVMC’s argument also is beside the point, as the
Board’s decision did not turn on whether or not Magsino
violated HIPAA but rather on the ample evidence that
CVMC invoked HIPAA as a pretext for firing him.
CVMC next argues that Magsino is not similarly situated
to the seven individuals at CVMC who either were not
disciplined or received lesser discipline for engaging in
similar or more egregious HIPAA-related acts. Such
disparate treatment is enough to establish pretext. See
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 468,
470 (9th Cir. 1966) (upholding Board’s determination that
discharge for insubordination was pretextual where
employer “refused to discharge” another employee also
accused of insubordination); Lucky Cab, 360 N.L.R.B. at
274 (discriminatory motive shown because “other drivers
were not discharged for the same or similar infractions as
those committed by” employees).
Gilliatt and the treating doctor both internally shared the
same patient’s medical information as part of the same
disciplinary proceeding for which Magsino was fired.
CVMC justifies these managers’ lack of discipline by
invoking a HIPAA regulation that permits the use of patient
information for the purpose of quality assessment and to
resolve internal grievances. See 45 C.F.R. §§ 164.501(1),
164.501(6)(iii). But those same purposes were also served
by Magsino’s use of the patient’s information to defend
himself in the disciplinary proceeding. Indeed, it is hard to
imagine how CVMC could have assessed the quality of
Magsino’s patient care without the information Magsino
submitted. CVMC also suggests that these two managers
acted with authorization that Magsino lacked, but fails to cite
UNITED NURSES ASS’NS OF CAL. V. NLRB 25
any evidence to challenge the ALJ’s contrary conclusion. In
fact, it was Magsino who obtained the authorization that
these managers lacked.
CVMC also fails to explain how Magsino is not similarly
situated to another nurse, DeSantiago, who received a final
written warning for the same purported violations around the
same time that Magsino did. CVMC argues that Magsino’s
conduct was more egregious because it spanned the course
of a week and included submitting a partially redacted
patient record to the human resources department. These are
not meaningful distinctions because Magsino was well
within his rights to do so and, regardless, CVMC expressly
authorized Magsino’s conduct. Nor is CVMC correct that a
finding of pretext is belied by its decision to fire one Union
“star” (Magsino) but not another union supporter
(DeSantiago). 11 An employer cannot camouflage its anti-
union animus by doling out gradations of punishment among
union supporters, as the NLRA bars an employer from
discriminating against every single one of them.
Equally unavailing is CVMC’s argument that Magsino
is not similarly situated to four other nurses who received
less severe discipline for similar or more egregious
disseminations of patient medical information internally and
externally. CVMC’s attempt to explain Magsino’s conduct
as somehow more “purposeful” than the other employees’
conduct is without factual support. In fact, as the ALJ found,
Magsino redacted and destroyed documents to maintain
confidentiality. And CVMC’s own internal investigation
11
The case cited by CVMC does not stand for that proposition. See
Sears, Roebuck & Co. v. NLRB, 349 F.3d 493, 506 (7th Cir. 2003)
(faulting Board for “not identify[ing] a single employee who . . . was
treated differently than” the terminated union supporter).
26 UNITED NURSES ASS’NS OF CAL. V. NLRB
concluded that Magsino “believe[d] that he was accessing
[the records] as part of his job” and recommended that he
merely be re-trained.
CVMC also argues that Magsino is not similarly situated
to any of the abovementioned individuals because he
engaged in a “series” of HIPAA violations, which CVMC
calculates by dividing into separate “acts” Magsino’s use of
one patient’s information. Yet the same method could be
used to slice and dice any of the other individuals’ conduct.
For example, Gilliatt’s use of patient information in
Magsino’s disciplinary meeting could be carved into several
discrete “acts,” one for each time she accessed, copied,
printed, carried, and handed to Magsino the nursing notes,
emergency room report, and medical record number. Yet,
CVMC did not even investigate Gilliatt, much less discipline
her.
Finally, despite initiating the DPH investigation, CVMC
now disavows its finding that “no breach actually occurred”
on the ground that DPH lacked jurisdiction to determine if
Magsino breached HIPAA. CVMC cites testimony to that
effect by its chief compliance officer, Suzanne Richards.
But this self-serving testimony is no substitute for legal
authority delineating an agency’s jurisdiction. Furthermore,
the ALJ found that she was not credible for several reasons,
including her inconsistent testimony attempting to reconcile
Magsino’s discharge with the lack of discipline for Gilliatt.
We therefore conclude that substantial evidence supports
the finding that CVMC’s discharge of Magsino was
pretextual and an unlawful labor practice.
UNITED NURSES ASS’NS OF CAL. V. NLRB 27
iii. CVMC failed to prove that Magsino was a
supervisor
Subject to certain exceptions, 12 the NLRA protects the
rights of employees—but not supervisors—to unionize,
bargain collectively, and engage in other concerted activity.
29 U.S.C. § 157; 29 U.S.C. § 152(3). Seizing on this
provision, CVMC argues that it was permissible to discharge
Magsino for his support of the Union because CVMC made
him a supervisor shortly before firing him, thereby leaving
him unprotected by the NLRA. We disagree.
As to the law, CVMC cannot retroactively strip Magsino
of the NLRA’s protections by promoting him to a supervisor
position and then firing him for past protected activity done
as an employee. And as to the facts, CVMC has failed to
show that Magsino was a supervisor, a burden that it bore as
the party asserting supervisory status. See NLRB v. Ky. River
Cmty. Care, Inc., 532 U.S. 706, 711–13 (2001); Oakwood
Healthcare, Inc., 348 N.L.R.B. 686, 694 (2006). Therefore,
there is no basis to reverse the Board’s determination that
Magsino was not a supervisor, which in any event is entitled
to “particularly strong” deference. N. Mont. Health Care
Ctr. v. NLRB, 178 F.3d 1089, 1094 (9th Cir. 1999).
12
See, e.g., Int’l Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 383
n.4 (1986) (“Even though supervisors are not covered by the Act, a
discharge [of a supervisor] may constitute a § 8(a)(1) unfair labor
practice if it infringes on the § 7 rights of the employer’s nonsupervisory
employees.”).
28 UNITED NURSES ASS’NS OF CAL. V. NLRB
a. CVMC cannot retroactively strip Magsino
of the NLRA’s protection
It is undisputed that Magsino was not a supervisor when
he worked as a relief charge nurse before March 15, 2010. 13
CVMC nonetheless argues, without authority, that
Magsino’s status as a non-supervisory employee prior to
mid-March is irrelevant because CVMC made him a
supervisor two months later on May 20, 2010, when it fired
him.
A similar argument was rejected in United Exposition
Service Co. v. NLRB, which enforced the Board’s order
requiring backpay and reinstatement for a “temporary
supervisor” whom the employer punished for participating
in a strike while he was an employee. 945 F.2d 1057, 1060–
61 (8th Cir. 1991). There, the parties had stipulated that the
punished individual was a statutory supervisor when he
performed out-of-town jobs. Id. at 1060. In rejecting the
employer’s argument that this supervisory status removed
him from the NLRA’s protection, the court reasoned that the
employer “retaliated against [him] for his activities as an
employee, not as a supervisor.” Id. Because he was an
employee when he “participated in the protected activities,”
his temporary supervisory status “does not vitiate his status
as a protected employee.” Id. at 1061. That same logic
underpins our conclusion here that an employer cannot
retroactively strip an employee of the NLRA’s protections
simply by making him a supervisor.
13
CVMC signed a stipulation with the Union ten days earlier on
March 5, 2010, stating that Gilliatt and five named charge nurses were
individuals who met the requirements for a supervisor under 29 U.S.C.
§ 152(11). Magsino, who worked ten shifts as a relief charge nurse in
February 2010, was not listed as one of those supervisors.
UNITED NURSES ASS’NS OF CAL. V. NLRB 29
Our holding is also compelled by the Supreme Court’s
instruction that the NLRA must be construed consistent with
its remedial purposes of encouraging collective bargaining
and protecting “the right of employees to engage in
concerted activities for their own benefit.” NLRB v. Lion Oil
Co., 352 U.S. 282, 289 (1957); see also Mastro Plastics
Corp. v. NLRB, 350 U.S. 270, 284 (1956). Permitting an
employer to retaliate against employees who engage in
protected activity by simply promoting them before firing
them would eviscerate the protections the NLRA affords to
employees and thwart their collective bargaining efforts.
b. CVMC failed to prove Magsino was a
supervisor
Even if CVMC were correct that a supervisor can be
fired for past protected activity engaged in as an employee,
substantial evidence supports the conclusion that CVMC
failed to prove that Magsino was a supervisor at the time he
was fired. To meet its burden, CVMC had to show, among
other things, that Magsino both: (1) performed “supervisory
functions”; and (2) spent a “regular and substantial portion”
of his work time doing so. Oakwood Healthcare,
348 N.L.R.B. at 694; see also 29 U.S.C. § 152(11) (defining
a “supervisor” as an “individual having authority, in the
interest of the employer, to . . . assign, . . . discipline other
employees, or responsibly to direct them, . . . if in connection
with the foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment”).
CVMC contends that Magsino performed supervisory
functions as a relief charge nurse because Gilliatt testified
that she had authority as a charge nurse to assign work and
that Magsino’s “duties” and “authority” as a relief charge
nurse were “no different” from hers. But as the ALJ
30 UNITED NURSES ASS’NS OF CAL. V. NLRB
correctly found, a manager’s “conclusory testimony that
employees have supervisory responsibilities,” without more,
fails to establish their supervisory status. Frenchtown
Acquisition Co. v. NLRB, 683 F.3d 298, 307 (6th Cir. 2012)
(holding charge nurses were not supervisors despite
conclusory testimony by director of nursing as to their
authority to discipline); G4s Regulated Sec. Sols.,
362 N.L.R.B. No. 134, at *2 (June 25, 2015), enforced
670 Fed. App’x 697 (11th Cir. 2016).
CVMC also invokes the 2008 and 2010 stipulations in
which it and the Union agreed that certain named charge
nurses qualified as supervisors. But none of the supervisors
named were Magsino, and these documents say nothing
about Magsino’s duties as of May 20, 2010. Even if they
did, such “paper authority” does not establish supervisory
status; rather, an employer must present evidence that the
authority was actually exercised by the purported supervisor.
N. Mont. Health Care, 178 F.3d at 1095; Frenchtown,
683 F.3d at 307–08 & n.5 (upholding Board’s refusal to
credit charge nurses’ job descriptions that tracked language
of statutory supervisor definition).
Even if Magsino performed nothing but supervisory
functions as a relief charge nurse, the record belies CVMC’s
claim that Magsino’s work as a relief charge nurse became
regular after March 15, 2010. CVMC focuses on this date
because it is when Gilliatt was promoted to director of the
emergency room and so ceased working as a charge nurse.
The implication, CVMC argues, is that Magsino stepped into
Gilliatt’s shoes. But the record does not bear this out.
Magsino’s shifts as a relief charge nurse in 2010 decreased
from ten shifts in February to six shifts in April to only three
shifts in May. Gilliatt also conceded that she assigned shifts
to relief charge nurses only if charge nurses were not
UNITED NURSES ASS’NS OF CAL. V. NLRB 31
available. Far from “regular” work—meaning work
“according to a pattern or schedule”—Magsino’s shifts
reflect exactly the “sporadic substitution” of one nurse for
another that the Board has held indicates a lack of
supervisory status. Oakwood Healthcare, 348 N.L.R.B. at
694, 699 (employer failed to establish supervisory status of
“rotating charge nurses” who substituted in for full-time
charge nurses).
Having offered no evidence as to the percentage of
Magsino’s work time spent as a relief charge nurse (much
less the portion spent on supervisory functions), CVMC
seeks to fill the gap with the ALJ’s observation that RNs
“typically” work three shifts per week. But an employer
cannot substitute generalities for actual evidence of the
amount of time its employees spent performing supervisory
functions. N. Mont. Health Care, 178 F.3d at 1095; G4s
Regulated, 362 N.L.R.B. No. 134, at *2 (“[M]ere inferences
or conclusory statements, without detailed, specific
evidence, are insufficient to establish supervisory
authority.”).
Finally, CVMC argues that this court cannot affirm
because the ALJ made no factual findings as to whether
Magsino’s supervisory functions were a regular and
substantial portion of his work time. This argument turns
CVMC’s burden on its head, as the absence of factual
findings supporting supervisory status cannot justify
reversal of the Board’s decision. Rather, “[b]ecause the
[employer] bears the burden of proving statutory supervisory
status, the Board must hold against the [employer] any lack
of evidence on an element necessary to establish that status.”
G4s Regulated, 362 NLRB No. 134, at *2. Moreover, the
record suggests that the ALJ did not reach this factual issue
because he correctly found that Gilliatt’s conclusory
32 UNITED NURSES ASS’NS OF CAL. V. NLRB
testimony failed to prove the threshold question of whether
Magsino engaged in any supervisory functions. See
Providence Alaska Med. Ctr. v. NLRB, 121 F.3d 548, 553–
55 (9th Cir. 1997) (charge nurses’ “routine guidance to other
RNs” and authority to “call in RNs or authorize overtime”
failed to establish supervisory status).
In short, because the law and the record support the
finding that Magsino’s firing was pretextual and that he was
not a supervisor, we affirm the finding that his discharge was
an unfair labor practice.
CVMC violated Section 8(a)(1) by serving
subpoenas seeking information about confidential
union activity protected by Section 7
Substantial evidence also supports the Board’s finding
that CVMC violated Section 8(a)(1) by serving subpoenas
on employees and the Union seeking confidential
information protected by Section 7 of the NLRA, 29 U.S.C.
§ 157, including communications with Union
representatives and signed authorization cards.
“It is well settled that Section 7 of the NLRA gives
employees the right to keep confidential their union
activities.” Veritas Health Servs., Inc. v. NLRB, 671 F.3d
1267, 1274 (D.C. Cir. 2012) (quoting Guess?, Inc.,
339 N.L.R.B. 432, 434 (2003)). Applying this rule, the
Board here reasoned that “the breadth of the subpoenas at
issue here and the nature of the information requested—
encompassing communications between employees and the
Union, union authorization and membership cards, and all
documents relating to the distribution and/or solicitation of
union authorization and membership cards—would subject
employees’ [Section 7] activities to unwarranted
investigation and interrogation.” (citing Nat’l Tel. Directory
UNITED NURSES ASS’NS OF CAL. V. NLRB 33
Corp., 319 N.L.R.B. 420, 421 (1995)). In rejecting CVMC’s
argument that employees’ rights could be safeguarded by
having a hearing officer conduct an in-camera inspection of
the documents CVMC sought, the Board explained that the
“the harm is in the very request itself, which would have a
chilling effect on employees’ willingness to engage in (or
refrain from) protected activities.” (citing Pac. Molasses
Co. v. NLRB, 577 F.2d 1172 (5th Cir. 1978)).
i. An employer cannot circumvent the NLRA’s
protections
CVMC raises several disparate arguments, none of
which are persuasive. CVMC first argues that its subpoena
requests had no chilling effect because Union supporters had
“outed” themselves in Union campaign posters featuring
their photos. This argument simply ignores the harmful
effect that an employer’s demand for information has on all
workers, any one of whom might be dissuaded from union
activity if they think an employer may learn of it. See Nat’l
Tel., 319 N.L.R.B. at 421 (quashing employer’s subpoena
seeking union authorization cards due to their “chilling
effect”); NLRB v. Maxwell, 637 F.2d 698, 702 (9th Cir.
1981) (“If an employee knows that his statements may
become available to his employer, he is certainly less likely
to make a candid statement to the Board.”); Comm. on
Masonic Homes of R. W. Grand Lodge, F. & A. M. of Pa. v.
NLRB, 556 F.2d 214, 221 (3d Cir. 1977) (“[I]t is entirely
plausible that employees would be ‘chilled’ when asked to
sign a union card if they knew the employer could see who
signed.”).
Next, CVMC contends that the Board should have
balanced employees’ Section 7 rights against CVMC’s
interest in obtaining information to support its election
objection alleging that supervisor support tainted the
34 UNITED NURSES ASS’NS OF CAL. V. NLRB
election results. But no such balancing is required to
determine an employer’s liability for an unfair labor
practice, as the NLRA’s mandatory language makes clear
that an employer’s desires cannot eclipse employees’ rights.
See 29 U.S.C. § 158 (“It shall be an unfair labor practice for
an employer . . . to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in”
Section 7). Moreover, CVMC had no interest to balance
because the overbroad subpoenas included requests for
information (e.g. union activity by non-supervisors) that
were irrelevant to CVMC’s election objection, as the ALJ
held in a decision affirmed by the D.C. Circuit. See Veritas,
671 F.3d at 1274. Nor does it matter that the subpoenas also
contained other requests that the ALJ deemed relevant to
CVMC’s election objection, as CVMC chose not to limit its
subpoenas to that information. 14 See Dilling Mech.
Contractors, Inc., 357 N.L.R.B. 544, 546 (2011) (employer
violated Section 8(a)(1) by serving discovery requests
seeking Section 7 information not relevant to its lawsuit).
CVMC also attempts to distinguish a case cited by the
Board, Pacific Molasses Co. v. NLRB, 577 F.2d 1172 (5th
Cir. 1978), because there the court denied an employer’s
Freedom of Information Act (“FOIA”) request to obtain
information protected by Section 7, whereas CVMC here
used a subpoena. But the method by which CVMC sought
to obtain information to which it was not entitled is a
distinction without a difference, as the Board has implicitly
14
CVMC also argues that the Board’s failure to cite the D.C.
Circuit’s decision prevents us from, consistent with its holding, affirming
on the ground that the subpoenas sought irrelevant information. No case
supports the notion that we must remand for the Board to engage in a
superfluous rebalancing of an interest that has already been determined
to be non-existent by another court.
UNITED NURSES ASS’NS OF CAL. V. NLRB 35
recognized in relying on FOIA cases to quash subpoenas.
See Nat’l Tel., 319 N.L.R.B. at 421 (quashing employer’s
subpoena request for Section 7 information and citing to
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978),
which rejected an employer’s FOIA request).
CVMC similarly challenges the propriety of the Board’s
citation to National Telephone, which quashed an
employer’s subpoenas that sought production of
authorization cards signed by employees and other
documents relating to union activity. 319 N.L.R.B. at 420,
422. CVMC argues that the case did not determine whether
an unfair labor practice had occurred and that the employer
there sought information which, CVMC contends, was less
relevant than that which it sought here. This critique ignores
the purpose for which the Board cited National Telephone,
which was simply for the well-established law that union
activity is protected from employers’ prying eyes.
Finally, CVMC briefly argues that, because the Board
has occasionally in other cases introduced into evidence
signed authorization cards to prove a union majority, CVMC
should be able to obtain similar information. This is a false
equivalency. That the NLRA empowers the Board to
confirm a union’s majority support among workers does not
excuse an employer from committing an unfair labor
practice in an effort to overturn a union election.
ii. The Noerr-Pennington doctrine does not
immunize CVMC from unfair labor practice
liability
CVMC alternatively invokes the Noerr-Pennington
doctrine to argue that its service of subpoenas was protected
from unfair labor practice liability by the First Amendment’s
Petition Clause. CVMC’s arguments lack merit.
36 UNITED NURSES ASS’NS OF CAL. V. NLRB
Originating as a shield against antitrust liability, the
Noerr-Pennington doctrine provides that concerted efforts to
petition the government that would otherwise be illegal may
nonetheless be protected by the First Amendment’s Petition
Clause when certain criteria are met. Allied Tube & Conduit
Corp. v. Indian Head, Inc., 486 U.S. 492, 499 (1988). While
the Supreme Court has intimated that the Noerr-Pennington
doctrine may cover some lawsuits by unions or employers
that are “reasonably based,” BE & K Constr. Co. v. NLRB,
536 U.S. 516, 536 (2002), it has exempted from such
protection those employer lawsuits that are preempted by the
NLRA or—as here—have an “objective that is illegal under
federal law.” Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S.
731, 737 n.5 (1983); Diamond Walnut Growers, 53 F.3d at
1089. 15 The Noerr-Pennington doctrine does not encompass
the latter lawsuits because an employer’s First Amendment
rights “cannot outweigh the equal rights of the employees to
associate freely, as those rights are embodied in [Section] 7
and protected by [Section] 8(a)(1)” of the NLRA. NLRB v.
Gissel Packing Co., 395 U.S. 575, 617 (1969); White v. Lee,
227 F.3d 1214, 1236–37 (9th Cir. 2000) (explaining that an
employer’s “unfair labor practice under the NLRA does not
receive full First Amendment protection” because
employees’ associational rights limit the reach of Noerr-
Pennington in the NLRA context); NLRB v. Associated Gen.
Contractors of Cal., Inc., 633 F.2d 766, 772 n.9 (9th Cir.
1980) (holding employer conduct that “would otherwise be
protected” under the First Amendment “may be regulated if
necessary to protect substantial rights of employees or to
preserve harmonious labor relations in the public interest”).
15
BE & K “left undisturbed” this exemption from Bill Johnson’s.
Small v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n Local 200,
611 F.3d 483, 492 (9th Cir. 2010).
UNITED NURSES ASS’NS OF CAL. V. NLRB 37
CVMC’s demands for confidential Section 7
information, including information irrelevant to its election
objection, fall outside the protection of the Noerr-
Pennington doctrine because, as discussed earlier, CVMC’s
conduct reflects an illegal objective. Our conclusion is
bolstered by Wright Electric, Inc. v. NLRB, which enforced
the Board’s order against an employer whose discovery
requests, like CVMC’s subpoenas, improperly sought signed
union authorization cards. 200 F.3d 1162, 1167 (8th Cir.
2000). The court reasoned that, “[b]ecause it is unlawful
under § 8(a)(1) of the NLRA for an employer to discover or
attempt to discover the identities of employees who have
signed union authorization cards,” the discovery requests
had “an illegal objective” that removed them from the First
Amendment’s protection. Id. (citing Bill Johnson’s,
461 U.S. at 737 n.5). The court also noted that the
information sought was “not relevant” to the employer’s
claims. Id. That reasoning, which the Board has followed
for years and which our sister circuits have upheld, applies
with equal force to bar CVMC’s conduct here. See Dilling,
357 N.L.R.B. at 546 (holding discovery requests violated
Section 8(a)(1) and, because request for union members’
names reflected an “illegal objective,” rejecting argument
that BE & K dictated different result); Santa Barbara News-
Press, 358 N.L.R.B. 1539, 1540–42 (2012), incorporated by
reference in 361 N.L.R.B. No. 88 (Nov. 3, 2014), enforced
sub nom. Ampersand Publ’g v. NLRB, No. 15-1074, 2017
WL 1314946, at *4 (D.C. Cir. Mar. 3, 2017) (same).
Alternatively, Noerr-Pennington does not immunize
CVMC from liability because its demands for employees’
confidential information are not direct petitioning. Outside
the labor law context, the Supreme Court has recognized two
types of conduct that may be protected under the Noerr-
Pennington doctrine: (1) “direct” conduct, such as a lawsuit,
38 UNITED NURSES ASS’NS OF CAL. V. NLRB
which seeks to influence governmental action 16; and
(2) conduct “incidental” to direct conduct, such as sending a
pre-litigation settlement demand letter. 17 See Venetian
Casino Resort, L.L.C. v. NLRB, 484 F.3d 601, 611 (D.C. Cir.
2007). The Supreme Court “has extended Noerr-
Pennington immunity into labor law only to protect direct
petitioning, i.e., employer lawsuits,” but not to protect
indirect petitioning. Id. at 612.
In rejecting CVMC’s Petition Clause argument, the
Board relied on Santa Barbara News-Press, a well-reasoned
decision which held that the Petition Clause did not
immunize an employer from unfair labor practice liability
where, as here, the employer’s subpoenas sought
confidential Section 7 information from several employees.
See 358 N.L.R.B. at 1541. There, the employer obtained
subpoenas from the Regional Director and caused them to be
served on employees. Id. at 1539, 1541. The Board
reasoned that this conduct “clearly did not constitute direct
petitioning” because the employer did not seek to influence
any government agency. Id. at 1541. To the extent the
Regional Director was involved, it was purely in a
“ministerial capacity” because the Regional Director was
See Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508,
16
510 (1972).
17
See Sosa v. DIRECTV, Inc., 437 F.3d 923, 942 (9th Cir. 2006).
To the extent CVMC urges us to expand Noerr-Pennington immunity
beyond the bounds recognized by the Supreme Court, CVMC’s failure
to even mention incidental petitioning or any case addressing the concept
in its conclusory, one-paragraph argument before the Board deprives this
court of jurisdiction to consider it. See Woelke & Romero Framing, Inc.
v. NLRB, 456 U.S. 645, 665 (1982); 29 U.S.C. § 160(e) (“[n]o objection
that has not been urged before the Board . . . shall be considered by the
court”).
UNITED NURSES ASS’NS OF CAL. V. NLRB 39
required by law to “process such requests in a
nondiscretionary manner.” Id.; see also Hilton v. City of
Wheeling, 209 F.3d 1005, 1007 (7th Cir. 2000) (the Petition
Clause does not “imply a duty of the government to make
every government employee a petition receiver”). The
Board also highlighted the mismatch between the purported
petitioning—the employer’s request for subpoenas from the
Regional Director—and the conduct giving rise to the unfair
labor practice—the employer’s use of those subpoenas to
demand that employees produce their confidential Section 7
information. Santa Barbara News-Press, 358 N.L.R.B. at
1541.
Here, there is the same mismatch between the conduct
giving rise to CVMC’s unfair labor practice liability and the
conduct it characterizes as protected petitioning—which, in
any event, is not direct petitioning. In demanding its
employees’ confidential Section 7 information, CVMC was
attempting to influence its employees, not the government.
Such conduct does not merit First Amendment protection
because “what is basically at stake is the establishment of a
nonpermanent, limited relationship between the employer,
his economically dependent employee and his union agent,
not the election of legislators or the enactment of
legislation.” Gissel Packing, 395 U.S. at 617–18. To hold
otherwise would eviscerate the protections of the NLRA and
the First Amendment associational rights of employees
embodied in it, as employers could simply accomplish by
subpoena that which they are barred from doing by law. See
id. at 617.
CVMC’s unfair labor practices warranted the
Board’s remedy of a reading order
To remedy CVMC’s unfair labor practices, the ALJ
ordered that CVMC schedule meetings of all its employees,
40 UNITED NURSES ASS’NS OF CAL. V. NLRB
during paid work time, so that the Board’s Notice to
Employees could be read to them with a Union
representative present. The Board affirmed that order. The
Board is vested with “broad discretion to devise remedies
that effectuate the policies of the Act,” Sure-Tan, 467 U.S.
at 898–99, and its reading order “should stand unless it can
be shown that the order is a patent attempt to achieve ends
other than those which can fairly be said to effectuate the
policies of the Act.” Va. Elec., 319 U.S. at 540.
Contrary to CVMC’s characterization, a reading order is
not an extraordinary remedy but rather an “effective but
moderate way to let in a warming wind of information and,
more important, reassurance.” UNF W., Inc. v. NLRB,
844 F.3d 451, 463 (5th Cir. 2016) (emphasis added); U.S.
Serv. Indus. Inc., 319 N.L.R.B. 231, 232 (1995), enforced
107 F.3d 923 (D.C. Cir. 1997). The reading order here was
clearly warranted in light of CVMC’s several unfair labor
practices, including its retaliatory firing of a prominent
Union supporter. And given CVMC managers’ participation
in the serious and widespread interference with its
employees’ rights, the Board was well within its discretion
to require that a manager read the order aloud “so that
employees will fully perceive that [CVMC] and its
managers are bound by the requirements of the [NLRA].”
Federated Logistics & Operations, a Div. of Federated
Corp. Servs., Inc. v. NLRB, 400 F.3d 920, 930 (D.C. Cir.
2005) (citation omitted).
CVMC nonetheless argues that the Board cannot remedy
the chilling effect of CVMC’s illegal activity with a reading
order because doing so would humiliate management,
relying on a Ninth Circuit dissent and two decades-old
UNITED NURSES ASS’NS OF CAL. V. NLRB 41
cases 18 that have “clearly been superseded” by more recent
decisions that have “approved a public reading
requirement.” Conair Corp. v. NLRB, 721 F.2d 1355, 1386
n. 99 (D.C. Cir. 1983) (enforcing reading order); see J.P.
Stevens & Co. v. NLRB, 417 F.2d 533, 539 (5th Cir. 1969)
(same). Setting aside this misplaced reliance on irrelevant
cases, we fail to see why management’s sensibilities should
play any role in the determination of an appropriate remedy
to address its illegal conduct. After all, “part of the medicine
is the traditional acknowledgement that the employer has,
but will not again, deny employees’ rights.” J.P. Stevens,
417 F.2d at 540. Nothing in the NLRA protects an employer
from the embarrassment it might experience as a byproduct
of the Board’s remedy, as an employer’s feelings are
obviously “outweighed by the necessity of effectuating the
policies of the National Labor Relations Act.” Id. at 539.
Finally, CVMC faults the Board for not detailing its
reasons for approving the reading order and the ALJ for
omitting quotation marks when using language from a case.
But no authority requires a more detailed analysis than the
Board or the ALJ provided here. 19
18
Int’l Union of Electric, Radio & Machine Workers v. NLRB,
383 F.2d 230 (D.C. Cir. 1967); NLRB v. Laney & Duke Storage
Warehouse Co., 369 F.2d 859 (5th Cir. 1966).
19
We reject CVMC’s cursory argument that the Board’s order is
overbroad because it uses the term “employees” rather than RNs. Due
to the argument’s brevity and lack of citation to authority, it has been
waived. See W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 979 (9th
Cir. 2012).
42 UNITED NURSES ASS’NS OF CAL. V. NLRB
Remand is appropriate for the Board to address
an unfair labor practice that was litigated and
closely connected to the complaint
We turn now to the Union’s petition challenging the
portion of the ALJ’s decision that declined to address
whether CVMC’s written policy should be rescinded.
Despite finding that CVMC’s oral ban on employees
communicating with the media was an unfair labor practice,
the ALJ declined to address CVMC’s written policy to the
same effect on due process grounds because the written
policy was not mentioned in the complaint or pursued by the
General Counsel. In doing so, the ALJ erred by not
considering that, “where the issue is fully and fairly litigated
at the administrative hearing, the Board may find an unfair
labor practice even though no specific charge is made in the
original complaint.” George C. Foss Co. v. NLRB, 752 F.2d
1407, 1411 (9th Cir. 1985) (rejecting employer’s due process
argument); Hi-Tech Cable Corp., 318 N.L.R.B. 280, 280
(1995), enforced in relevant part, 128 F.3d 271, 277 n.20
(5th Cir. 1997); Pergament United Sales, 296 N.L.R.B. 333,
334 (1989), enforced 920 F.2d 130 (2d Cir. 1990).
CVMC’s written policy and oral ban on employees
communicating with the media are closely connected—
indeed, the ALJ described them as “related.” The written
policy barred employees from making statements to the
media “on behalf of . . . employees.” CVMC’s own witness,
Ruggio, testified that the written policy was the basis for
CVMC’s oral ban on employees communicating with the
media, stating that manager Lex Reddy told employees “not
to discuss hospital matters with the media[] because we do
have policies in relation to discussing hospital matters with
the media.” Moreover, the complaint alleges that Reddy’s
oral ban was an unfair labor practice. The Supreme Court
UNITED NURSES ASS’NS OF CAL. V. NLRB 43
and the Board have found no due process violation even
where a far more tenuous connection existed between an
unalleged unfair labor practice and the complaint. NLRB v.
Mackay Radio & Tel. Co., 304 U.S. 333, 350–51 (1938)
(rejecting due process challenge to unfair labor practice
finding for wrongful discharge, even though operative
complaint alleged failure to re-hire, because parties
presented evidence on the issue); Hi-Tech Cable Corp.,
318 N.L.R.B. at 280 (rejecting challenge to findings of
unfair labor practices committed by manager Jim French
because his statements to employees that they could “get
more without a union” had a “close connection” to
complaint’s allegation of unlawful promises of benefits by
another managerial official).
In addition, CVMC fully litigated the issue of whether
its ban on employees communicating with the media was an
unfair labor practice, and the ALJ found that it was. In the
course of this litigation, CVMC itself introduced the written
policy and its witness authenticated and testified about it.
On appeal, CVMC did not address the Union’s argument
seeking a ruling on the written policy. This non-opposition
from the only party who could claim prejudice makes any
due process concern ring especially hollow. Because due
process does not bar the relief the Union seeks—rescission
of the written policy—we grant the Union’s petition and
remand to the Board for resolution of that narrow issue at the
compliance stage of the proceeding. See SKS Die Casting &
Machining, Inc. v. NLRB, 941 F.2d 984, 990 (9th Cir. 1991);
Rea Trucking Co. v. NLRB, 439 F.2d 1065, 1066 (9th Cir.
1971) (“The Board has an obligation to decide material
issues which have been fairly tried by the parties even
though they have not been specifically pleaded.”).
44 UNITED NURSES ASS’NS OF CAL. V. NLRB
IV. Conclusion
In sum, we DENY CVMC’s petition, except as to the
incidental petitioning argument that we DISMISS for lack of
jurisdiction because CVMC failed to raise it below. We
ENFORCE the Board’s order. We also GRANT the Union’s
petition and remand for the Board to address rescission of
CVMC’s written policy during the compliance stage
consistent with this opinion. Costs shall be taxed against
CVMC.
DENIED IN PART, DISMISSED IN PART,
GRANTED AND REMANDED IN PART, and
ENFORCED.