United Nurses Associations of California v. National Labor Relations Board
871 F.3d 767
9th Cir.2017Background
- Veritas Health Services, d/b/a Chino Valley Medical Center (CVMC) refused to bargain and litigated a 2010 nurse union election; the NLRB found CVMC committed widespread unfair labor practices before and after the election.
- Ronald Magsino, a prominent pro-union nurse, was terminated May 20, 2010; CVMC claimed HIPAA and internal-policy violations while the Board found the HIPAA explanation pretextual.
- CVMC had disciplined or treated other employees differently for comparable conduct; an internal investigation recommended retraining for Magsino and a state DPH later found no HIPAA breach.
- While contesting the election, CVMC served broad subpoenas on nurses and the Union seeking communications with union representatives and signed authorization cards; the ALJ and D.C. Circuit limited disclosure during the election challenge.
- The ALJ found multiple unfair labor practices (threats, coercion, retaliation, and an oral media-communication ban), ordered remedial measures including paid-time meetings where a Board Notice would be read with a Union representative present, and the Board affirmed; the Ninth Circuit largely enforced the Board’s order but remanded one issue.
Issues
| Issue | Plaintiff's Argument (CVMC) | Defendant's Argument (Union/NLRB) | Held |
|---|---|---|---|
| Due process / ALJ bias | ALJ showed anti-employer bias depriving CVMC of fair hearing | ALJ’s rulings and questioning did not constitute disqualifying bias | Court: No due process violation; summary enforcement of most findings |
| Discharge of Magsino (§ 8(a)(1) & (3)) | Termination lawful for HIPAA/internal-policy violations; alternatively he was a supervisor | Termination was pretext for anti-union motive; Magsino was not a supervisor | Court: Substantial evidence supports pretext/unlawful motivation; Magsino not a supervisor; violation affirmed |
| Subpoenas for union communications & authorization cards (§ 8(a)(1)) | Subpoenas were legitimate discovery/petitioning to litigate election objections; Noerr-Pennington protects petitioning | Requests chilled Section 7 rights; overbroad and sought irrelevant confidential Section 7 materials; Noerr-Pennington does not shield illegal objective | Court: Substantial evidence CVMC violated § 8(a)(1); Noerr-Pennington inapplicable |
| Remedy — reading order / meetings | Reading order humiliates management and is overbroad | Reading order is a standard, proportionate remedy to remediate chilling and inform employees | Court: Reading order appropriate and within Board’s discretion; enforced |
| Rescission of written media-communication policy | ALJ declined to rescind written policy due to complaint pleading/due process concerns | Issue was litigated and materially connected; rescission is permissible relief | Court: Granted Union’s petition; remanded for Board to address rescission at compliance |
Key Cases Cited
- Veritas Health Servs., Inc. v. NLRB, 671 F.3d 1267 (D.C. Cir. 2012) (prior D.C. Circuit decision limiting disclosure during election challenge)
- Liteky v. United States, 510 U.S. 540 (1994) (standards for judicial/tribunal bias and when recusal is required)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (substantial-evidence standard and deference to agency factfinding)
- NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 (1983) (use of Wright Line burden-shifting framework)
- NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) (limits on First Amendment defenses to unfair labor practices)
- Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983) (Noerr-Pennington may not shield conduct with an illegal objective under federal law)
- BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002) (scope of petitioning protections in labor-law context)
- Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) (agency discretion to craft remedies under the NLRA)