Seiu, United Healthcare Workers-West v. National Labor Relations Board

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEIU, UNITED HEALTHCARE 
WORKERS-WEST,
Petitioner,
v.
No. 07-73028
NATIONAL LABOR RELATIONS
BOARD,
 NLRB No.
20-CG-65
Respondent,
CALIFORNIA PACIFIC MEDICAL
CENTER,
Intervenor.

NATIONAL LABOR RELATIONS 
BOARD,
Petitioner,
CALIFORNIA PACIFIC MEDICAL No. 07-73673

CENTER, NLRB No.
Intervenor, 20-CG65
v. OPINION
SEIU, UNITED HEALTHCARE
WORKERS-WEST,
Respondent.

On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted
February 13, 2009—San Francisco, California
Filed August 3, 2009
10089
10090 SEIU v. NLRB
Before: Alfred T. Goodwin, Mary M. Schroeder and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Schroeder
10092 SEIU v. NLRB
COUNSEL
David Rosenfeld, Alameda, California, for the petitioner-
respondent.
Julie Broido, Washington, DC, for the respondent-petitioner.
Christopher Scanlan, San Francisco, California, for the inter-
venor.
OPINION
SCHROEDER, Circuit Judge:
This union petition for review and National Labor Rela-
tions Board (“NLRB”) cross-petition for enforcement concern
SEIU v. NLRB 10093
Section 8(g) of the National Labor Relations Act (“NLRA”),
29 U.S.C. § 158(g). Section 8(g) applies only to hospitals and
requires a union to give ten days’ notice before beginning any
“concerted refusal to work.” In this case, Service Employees
International Union, United Healthcare Workers-West (“the
Union”) gave only four days’ notice before its members col-
lectively declined to work overtime, as the Union had urged
them to do. The Union nevertheless contends it was relieved
of the ten-day statutory notice requirement because its collec-
tive bargaining agreement with the hospital provided that the
hospital could not force an individual employee to work over-
time.
Over a dissent, the NLRB held that an individual’s exercise
of the right to decline particular overtime work is not the
same as a collective refusal to do any overtime work, and that
the Union violated the statutory ten-day notice requirement.
“The Chevron doctrine requires that this court defer to the
NLRB’s interpretation of the NLRA if its interpretation is
rational and consistent with the statute.” UFCW, Local 1036
v. NLRB, 307 F.3d 760, 766 (9th Cir. 2002). The NLRB’s
interpretation is entitled to deference, and we affirm its order.
BACKGROUND
The Union represents a bargaining unit of housekeepers
and linen aides employed by California Pacific Medical Cen-
ter (“the Hospital”). The employees are in the Environmental
Services departments of the Hospital’s Davies and Pacific
campuses. In a series of collective bargaining agreements
(“CBA”) negotiated over the years, the parties have agreed
that the Hospital cannot assign mandatory overtime, except
during emergencies. The relevant CBA’s overtime provision
was as follows:
The Medical Center shall not assign overtime unless
one of the following conditions exist: there is a
disaster or emergency declared by a federal, state,
10094 SEIU v. NLRB
and/or local agency or a member of the Medical
Center’s Senior Management team has determined
that an emergency exists. For the purpose of this sec-
tion, emergency is defined as an unexpected situa-
tion or sudden occurrence of a serious and urgent
nature that demands immediate action. Prior to
assigning mandatory overtime, the Medical Center
will first seek volunteers for additional work. In situ-
ations where mandatory overtime is to occur, the
Medical Center will give advance notice, as permit-
ted by operational circumstances, to the employee(s)
who will be mandated to stay.
Because the Hospital does require significant numbers of
overtime shifts to meet its staffing requirements, the Hospital
relies on employees in the units being willing to volunteer.
The Hospital was always able to secure sufficient volunteers
before May 2006. The Davies campus typically required six-
teen hours of overtime during each day shift and twenty-four
hours of overtime during each evening shift, from Friday to
Monday. Overtime needs during the weekdays, Tuesday to
Thursday, were less regular. The Pacific campus required up
to eight full overtime shifts each day.
In May 2006, the Hospital proposed to change its methods
of processing linens in a manner that the Union contended
violated the provision in the CBA prohibiting subcontracting
of employee work. In a petition signed by more than 100
employees, and presented to the managers at the Davies and
Pacific campuses, the Union protested the proposal and called
for a one week long refusal to do overtime work:
We the undersigned [Union] members in Environ-
mental Services hereby protest the proposal of [Hos-
pital] management to sub-contract our work in the
linen room out to the West Bay Distribution center.
This is a direct violation of the no sub-contracting
clause of our contract. By signing this petition we
SEIU v. NLRB 10095
hereby authorize our shop stewards to call for rolling
one week, no overtime no extra shift policy amongst
[Union] members in the Environmental Service
department on an as needed basis. We commit to
one-another that we will honor this commitment to
action and stand strong in our fight with [the Hospi-
tal] to force them to respect and honor our contract.
The petition was circulated to the manager of the Davies cam-
pus on June 1, 2006, and to the manager of the Pacific campus
on June 2, 2006. This was the first notice the Hospital had of
a possible cessation of work.
On Monday, June 5, four days after receiving the Union’s
petition, the manager of the Davies campus sought to fill 16
hours of overtime, but could not find a single volunteer from
the seven employees she called out of the ten employees who
were eligible. She again called several employees each day
from Tuesday, June 6 through Thursday, June 8, but all
refused. The manager of the Pacific campus called approxi-
mately ninety eligible employees on Monday, June 5, and
could not get a volunteer. He was also unable to fill overtime
slots on June 6 or June 7. The refusals ceased on Monday,
June 12, when employees at both campuses began accepting
overtime.
The Union supported and advertised the refusals to perform
overtime. The Union’s newsletter, published during the week
of the refusals, described the action as follows:
EVS workers at all three [Hospital] campuses are
standing up to management’s attempt to subcontract
the jobs of our coworkers in the Linen Room. Last
week a super majority of [Union] members . . .
signed a petition demanding [the Hospital] respect
our contract and halt its plans to subcontract the
Linen Room . . . . In addition, the petition called for
one week of no overtime, no extra shifts for [Union]
10096 SEIU v. NLRB
members in the EVS department. Starting on June
5th, the no overtime, no extra shift policy has
exposed the short staffing that management has cre-
ated in the EVS department. It is now crystal clear
that [the Hospital] needs to hire more EVS staff, not
eliminate jobs.
In response, management has attempted to force
[Union] members to do extra work to cover the shifts
management has failed to fill. . . . [O]ur contract
clearly prohibits this unless there is an emergency
situation . . . . If management attempts to force you
to do extra work during your shift contact your stew-
ard immediately!
The Hospital filed unfair labor practice charges on June 13,
2006, claiming that the Union violated Section 8(g) by failing
to provide timely notice of its intention to engage in a con-
certed refusal to work. The ALJ issued a decision finding a
violation of Section 8(g) and recommended that the NLRB
issue an order requiring the Union to cease and desist from
any concerted refusals to work overtime. The order provided:
Cease and desist from engaging in any strike, picket-
ing, or other concerted refusal to work; including a
concerted refusal to volunteer for overtime work, at
the premises of [the Hospital], or any other health
care institution, without timely notifying, in writing,
any such health care institution and the Federal
Mediation and Conciliation Service, not less than 10
days prior to such action, of that intention.
On July 27, 2007, the NLRB, over the dissent of one member,
affirmed the ALJ’s findings of fact and conclusions of law
and entered the order the Board now seeks to enforce. See
SEIU United Healthcare Workers-West, 350 N.L.R.B. 284,
286 (2007).
SEIU v. NLRB 10097
ANALYSIS
[1] Section 8(g) of the NLRA was enacted as part of a
series of statutory provisions intended to respond to special
issues raised by labor organizations in a hospital setting.
Other relevant NLRA provisions enacted at the same time
included the elimination of an exception for hospitals from
the statutory definition of “employer,” 29 U.S.C. § 152(2),
and the addition of special collective bargaining provisions
for employees of health care institutions, id. § 158(d). Section
8(g) of the NLRA provides, in relevant part, as follows:
A labor organization before engaging in any strike,
picketing, or other concerted refusal to work at any
health care institution shall, not less than ten days
prior to such action, notify the institution in writing
and the Federal Mediation and Conciliation Service
of that intention . . . . The notice shall state the date
and time that such action will commence. The
notice, once given, may be extended by the written
agreement of both parties.
29 U.S.C. § 158(g). When Congress enacted Section 8(g) in
1974, its stated goal was to balance two dominant consider-
ations: the desire to bring employees of non-profit hospitals
within the protection of the Act, and the need to protect the
public interest by “insur[ing] the continuity of health care to
the community and the care and well being of patients by pro-
viding for a statutory advance notice of any anticipated strike
or picketing.” Kapiolani Hosp. v. NLRB, 581 F.2d 230, 233
(9th Cir. 1978) (quoting Senate Comm. on Labor and Public
Welfare, S. Rep. 93-766, at 3 (1974), reprinted in 1974
U.S.C.C.A.N. 3946, 3949). The ten-day notice requirement
was intended to prevent disruption of patient care by giving
hospitals time to plan ahead for strikes, pickets, or other work
stoppages. See NLRB v. Stationary Eng’rs, Local 39, 746 F.2d
530, 533 (9th Cir. 1984).
10098 SEIU v. NLRB
[2] In this case, the parties’ CBA prohibits the Hospital
from assigning mandatory overtime to Union employees,
except during emergencies. The most obvious reason for
inclusion of this provision was to give individual employees
flexibility in choosing to accept or reject the Hospital’s offers
of overtime shifts, but it did not specifically waive the Hospi-
tal’s right to ten days’ notice of collective refusals to work.
[3] We owe the NLRB great deference in its interpretation
of the NLRA, NLRB v. Calkins, 187 F.3d 1080, 1085 (9th Cir.
1999), and will not overturn the agency unless “there are
compelling indications that it is wrong,” Stationary Eng’rs,
746 F.2d at 532 (citation omitted). The Board majority held
that the Union’s actions amounted to a “concerted refusal to
work” within the meaning of Section 8(g), and that the Union
therefore violated the statute by failing to give the required
ten days’ notice of its planned work stoppage. The Board rea-
soned that the work stoppage in this case was subject to Sec-
tion 8(g) because it was orchestrated by the Union as a
collective means of accomplishing a common goal: pressuring
the Hospital to change a policy the Union perceived as being
unfavorable to its members. The Board noted that its decision
furthered the public protection purpose underlying Section
8(g)’s notice requirement.
[4] The Union’s principal argument, one supported by the
dissenting Board member, is that the collective refusal to
work overtime is authorized by the CBA provision stating that
the employer cannot force an individual to work overtime.
The Union contends that because the employer has agreed
that each employee can decline to perform overtime on an
individual basis, the Union can, in accordance with the con-
tract, direct its members to decline to perform work on a col-
lective basis without engaging in any “refusal” to work within
the meaning of Section 8(g). We agree with the Union that
there would not necessarily be a concerted refusal to work in
the event all employees, acting independently, were unwilling
to volunteer for overtime. Here, however, the members did
SEIU v. NLRB 10099
not act on an individual basis. Rather, their action was “con-
certed” because it was orchestrated by the Union. The NLRB
appropriately ruled that the employees’ decisions were “con-
certed” under Section 8(g).
[5] The leading NLRB decision interpreting Section 8(g) is
N.Y. State Nurses Ass’n (Mt. Sinai Hosp.), 334 N.L.R.B. 798(2001). Mt. Sinai Hospital held that a union was required to
give ten days’ notice under circumstances remarkably similar
to those before us now. In that case, the union requested that
nurses refuse to volunteer for overtime and refuse to perform
overtime assigned to them, calling upon them to exercise con-
tractual rights to refuse to volunteer. The Board held that the
Union called for a “concerted refusal to work,” requiring ten
days’ notice:
To be sure, Section 8(g) does not prevent employees
from exercising their rights under the collective-
bargaining agreement. It does, however, in the
absence of the required written 10-day notice, pro-
hibit a union from inducing employees to exercise
their contractual rights as part of the union’s effort
to pressure an employer to change terms and condi-
tions of employment. If the union is going to call for
a strike or concerted refusal to work, the employer
is entitled to the appropriate statutory notice.
Id. at 801.
[6] The Union, citing the dissent in Mt. Sinai Hospital, 334
N.L.R.B. at 804 (Liebman, dissenting), argues that an
employee’s decision to decline overtime should only be con-
sidered a “refusal to work” when the overtime is mandatory.
We need not decide whether such an interpretation of the
phrase would also be permissible, were the Board to advance
it, because we defer to the broader interpretation actually
adopted by the Board, which is both “rational and consistent
with the statute.” UFCW, 307 F.3d at 766.
10100 SEIU v. NLRB
[7] In this case, the Union itself called for the overtime
work stoppage. It did not even purport to invoke the provision
of the contract allowing for overtime refusal on an individual
basis. Under the NLRB’s precedent interpreting the phrase,
this was a “concerted refusal to work” for which Section 8(g)
requires notice.
Our court, interpreting Section 8(g), has stressed the provi-
sion’s applicability to concerted action. See Kapiolani Hosp.,
581 F.2d at 234. In that case, an employer fired an employee
who was not a member of the union, but who had individually
decided that she would not cross the union’s picket line. We
enforced the Board’s order finding the employer guilty of an
unfair labor practice. We held that the unrepresented
employee was not required to give the employer notice of her
refusal because the statute applies only to concerted refusals
to work and requires only unions to give the ten days’ notice.
Id.[8] That holding supports the result in this case. Although
the individual decision to refuse to cross the picket line, or in
this case to refuse overtime, does not require notice because
of the absence of union action, notice is required when a
refusal to work is the direct result of union action against a
healthcare institution. Other circuits have reached similar con-
clusions. See, e.g., Bry-Fern Care Ctr., Inc. v. NLRB, 21 F.3d
706, 711 (6th Cir. 1994); NLRB v. Wash. Heights-West
Harlem-Inwood Mental Health Council, Inc., 897 F.2d 1238,
1246 (2d Cir. 1990); E. Chicago Rehab. Ctr., Inc. v. NLRB,
710 F.2d 397, 402-03 (7th Cir. 1983).
[9] The Union’s secondary argument fares no better. The
Union contends that under Alexandria Clinic, P.A., 339
N.L.R.B. 1262, 1263-65 (2003), enforced by 406 F.3d 1020(8th Cir. 2005), it cannot give effective notice of a concerted
refusal to work without knowing, at the time it gives the
notice, whether the Hospital will need overtime on a specified
date ten days in the future. In Alexandria Clinic, however, the
SEIU v. NLRB 10101
union itself chose to delay commencement of its work stop-
page beyond the date initially specified in the notice. The
NLRB held that this rendered the union’s original notice
defective and that the union should have issued a new, cor-
rected notice and waited an additional ten days so that the
hospital could appropriately prepare. Here, if the Union had
given notice ten days in advance of the date when employees
planned to begin declining offered overtime, and had fol-
lowed through on that plan, the notice would not have been
rendered defective no matter how the Hospital reacted, even
if the Hospital decided not to offer overtime on the specified
date. Despite any uncertainty surrounding the Hospital’s
future decision, the Union was able to give effective notice of
the day on which it planned for employees to commence
refusing any overtime that might be offered. The NLRB’s
conclusion that the Union’s failure to do so violated Section
8(g) was “rational and consistent with the statute,” UFCW,
307 F.3d at 766, and its purpose of ensuring uninterrupted
patient care in spite of upcoming work disruptions. See
Kapiolani Hosp., 581 F.2d at 233.
Petition for Enforcement GRANTED; Cross-Petition for
Review DENIED.