Healthcare Employees Union, Local 399 v. National Labor Relations Board

909 Hebbring is able not err UNION, unse- HEALTHCARE portion “a EMPLOYEES

fund substantial plan. In re Chapter claims” a 13 AFFILIATED cured LOCAL WITH the Price, 1139; at also In re 353 F.3d see INTERNA- SERVICE EMPLOYEES (6th Cir.2004) Behlke, 429, 437 UNION, AFL-CIO, TIONAL Petition- (debtors seeking Chapter 7 relief who er, pay 14% of unsecured debt over could v. years ability had the to fund

three plan). Chapter NATIONAL LABOR RELATIONS BOARD, Respondent,

C Center, Medical Hebbring’s find no merit We Respondent-Intervenor. argument that Trustee failed muddled proving to meet its burden of substantial No. 03-72029. Hebbring’s abuse. The Trustee relied Hebbring arguing own schedules Appeals, United States Court of ability Chapter plan. to fund a has the Ninth Circuit. Hebbring

To the contends that the extent Argued and Submitted Feb. 2005. bankruptcy inadequate court made factual findings, ignores she the record. Based on Sept. Filed schedules, court Hebbring’s the district that her retirement contributions

found reasonably necessary expense

are not disposable has sufficient in she plan. As noted Chapter

come to fund

above, findings clearly are not erro these

neous, bankruptcy and the court therefore in dismissing

did not its discretion abuse

her for substantial abuse. See

Price, 1140. In re Hotel Hol at relies, inap

lywood, Hebbring on which

posite bankruptcy there “the court because findings fact” and the

did not make

appellate court was therefore “unable legal grounds on which the

ascertain

[bankruptcy] court reached its decision.” 1988). BAP

95 B.R. Cir.

Y reasons, foregoing the district

For affirming bankruptcy order

court’s dismissing

court’s order this case is

AFFIRMED. (brief argued) &

David A. Rosenfeld (brief), Weinberg, Murphy M. Suzanne Rosenfeld, Oakland, CA, for the Roger & petitioner. Labor Rela- and David a final order of the National (argued) L.

Meredith Jason (brief), (the “NLRB”). A. Na- and Jill Griffin Board “Board” or Habenstreit tions Board, Washington, Relations tional Labor The Board’s order dismissed Union’s D.C., respondent. for the practice charge against unfair labor (“St.Vincent”). Medical Center (brief argued), A. Letter

Gordon CA, Mendelson, Angeles, Los Littler practice charge, unfair labor respondent-intervenor. subcon- alleged hospital’s

tracted out the work of the res- piratory care on the eve of employees in that prevent union election to election, in in department voting PREGERSON, HARRY Before 8(a)(3) and violation Sections JR., CANBY, and ROBERT C. WILLIAM Act the National Labor Relations BEEZER, Judges. R. Circuit (“NLRA”), 158(a)(1), §§ 29 U.S.C. 158(a)(3). AND OPINION ORDER hearing, an administrative law After PREGERSON, Judge. Circuit (“ALJ”) ruled that the judge Union carry that anti- persuasion to its burden ORDER in motivating was a factor union animus opinion The and dissent filed March subcontracting decision and St. Vincent’s slip op. appearing and at complaint. ruling That dismissed A hereby F.3d 670 are withdrawn. new addition, affirmed the Board. concur- opinion and dissent shall be filed Board ruled that even if the Union rently order. with this persuasion, carried its burden of St. Vin- Canby to Judges Pregerson and voted that it would have sub- cent demonstrated deny rehearing. for petitions panel department contracted out the work of the Judge grant petitions Beezer voted to activity. organizing the absence of union panel rehearing. Judge Pregerson for deny rehearing for petitions voted to jurisdiction We have under 29 U.S.C. banc, Judges Canby en and Beezer so 160(f). below, § For the reasons stated recommend. grant for review we the Union’s proceedings. The full court has been advised of the and remand for further petitions rehearing for en banc and no

judge requested has a vote on whether to AND PROCEDURAL FACTUAL R.App. rehear the matter en banc. Fed. BACKGROUND Accordingly, petitions panel P. for an St. Vincent Medical Center is acute rehearing petitions rehearing and the for Angeles, care located Los Cali- hereby DENIED. further en banc are No fornia. subcontracting1 Before petitions be entertained. shall (“RC”) respiratory

work of care de- OPINION partment February employed twenty-seven respiratory care Employees Local Healthcare Union (the “Union”) petitions therapists. therapists responsible this court to review are "subcontracting," "subcontracting whereby 1. We use St. Vincent contracted with a third out," "outsourcing" interchangeably party operate Respiratory depart- to Care arrangement hospital. opinion ment at the this to refer to the proper respiratory equipment, lack of care treat- administering respiratory for intubations, general staffing problems. venti- (i.e., administering ment throughout lators, systems) or life ongoing problems depart- The providing res- In addition hospital. by upper-level unnoticed go ment did treatment, are therapists care piratory fall management.2 In the summer and assessing patient’s each responsible Suarez, Ray Hancock and Ramon patient’s status reporting each health managers, regu- met both RC and doctors. employees shift on-coming Uy, administrator larly with Zita assistant for the RC discuss Respi- in the Management A. Problems problems in the RC Department ratory Care Campaign B. it The Union contends that outsourced in Febru- the work of its RC orga- began campaign Union unable to find and ary 2000 because was in July technical staff hospital’s nize the dif- managers. St. Vincent’s train suitable assigned when it between three and depart- management of the RC ficulty with organizers to Vincent.3 four full-time long time before ment had existed for easily by their organizers, identified actually department that was the work T-shirts, spoke openly to em- distinctive fact, In while the RC out. subcontracted pro- out ployees hospital passed at the and more evi- problems became department’s early In union fliers several times a week. out- years in three before the dent the in July, picketed the front of the Union decision, compa- hospital the sourcing hospital hospital managers stood as for department problems rable with its RC organizers also sta- watching.4 Union nearly years. thirteen hospital in cafeteria tioned themselves month and twenty ten and times a of the RC de- between replacement Despite the Union. As spoke employees de- about manager early in partment’s organiz- campaign progressed, contin- Union standards partment’s productivity hospital regular home visits to than of other ers made to remain lower those ued joining tes- staff to discuss the benefits employees RC departments. Several proved efforts suc- they Union. The Union’s during that encountered tified cessful, that as the ALJ found most them from accom- problems that hindered union authori- securing success in During that Union’s assigned their tasks. plishing occurred af- employees zation cards from regularly manage- they complained time codes, billing ter mid-1999.5 proper ment about a lack of managers aware of the became hospital’s Charge Audit Committee 2. The (founded responsible immediately. April organizing and in activities almost charts, documentation, billing auditing and in regular re- departments), issued the various exactly who 4. It unclear from the record scrutinizing ports and fall of 1999 in summer watching management and whether was tracking problems department’s with the RC picketed on several the Union billing providing proper and with treatments single day. or on a occasions information. signs employee a union authorization 5. An early first undertook the Union willingness to his or her card to demonstrate staff, organize hospital’s which technical A will of the union. union become member time, department. At that included the RC signed normally authorization submit assigned part-time organizer to one the Union of its cards to the Board in campaign. ALJ found that while The minimal, John E. Patrick Hardin & initially for an election. See organizing activities were union, organizer A for the Roberto De The ALJ concluded that St. Vin lead “admittedly Cruz, made a studied effort to cent La testified Hill, Mary keep Union.]”6 track of [the strongest “one of the units” and that hospi of human resources for the director push- employees were “instrumental tal, supervisors her testified she asked ing [organizing] drive.” De La Cruz any know of managers [her] to “let employees comprised testified that the RC activity, leafletting whether that be Union committee, majority organizing informing if employees or are them helped strategize which Union “[the staff] visits, cafeteria, in the presence home proceed campaign as to how to thing.” sort of Several RC [identify] other workers.” Between nine organizer and one testi Union employees openly and twelve RC were open their encounters with each fied about pro-union. They discussed the with hospital.7 other and around the Anoth work, openly co-workers at talked to Un- employee during testified that er RC organizers, passed pro-union ion Hancock, meeting depart an RC hospital. fliers front of the De La Cruz only manager, ment stated the Union organizers testified that Union held the money employees.8 wanted from the RC department out to departments other up The RC which made strong pro-union in the technical staff as a twenty-five percent of the technical staff at ninety-five percent About hospital, overwhelmingly supported ultimately employees signed found that the Union. authorization cards. could not have failed to [St. Vincent] In a flier dated November employees have identified the RC as the throughout hospital’s distributed tech- supporters among

core of the Union’s staff, nical the Union announced that hospital’s employees, and that[St. away filing was a “few weeks” an deduced, Vincent] well have petition election with the Board. The flier deduce, probably did from such intelli- peti- also announced that once the election gence employees that the RC were the filed, likely tion was the Board would an proselytes most of the Union’s set cause in other departments. forty-five sixty days.9 election within to Jr., Higgins, Developing points Labor Law 501 8. The Union also out that Hancock (4th ed.2001). meeting hospi stated in one in 1999 that the specifi "didn't tal like unions.” But the ALJ cally credited Hancock’s denial of this state findings rulings 6. The ALJ’s can be found "Credibility ment. determinations the ALJ with the Board’s decision St. Vincent Med. deference, given great upheld are and are Ctr., No. 2003 WL NLRB they inherently pat unless are incredible or (Mar. 2003). ently Broadcasting unreasonable.” Retlaw NLRB, Co. v. Cir. occasion, Uy 7. On one identified herself to a 1995) (internal quotations marks and citation organizer Union as the head administrator of omitted). why The Union offers no reason and asked for leaflets. credibility ALJ’s determination of Hancock's Hancock, manager department, of the RC patently is incredible or unreasonable. We testified that he also saw some of the Union credibility therefore defer to the ALJ's deter during organizer, fliers One Ter- uphold finding mination and his that Han Courtney, ence testified that he and Bill Pár- cock never stated that the "didn’t like ente, hospital president, would see each unions.” regularly other as Párente drove in and out of hospital. Courtney produced hearing testified that Párente 9. St. Vincent the flier at the pursuant subpoena. knew him on a first name basis. to a 20, 1999, Uy and Ramirez filed On December January the Union On for the Board an election with subcontracting.10 Uy to again met discuss techni- unit one-hundred bargaining recognized that she and Ramirez testified included employees, which cal staff subcontracting very expen- would “be January On twenty-seven therapists. financially But she sive” infeasible. 21, 2000, to an elec- parties stipulated that neither -Ramirez testified she nor by the Board on n to be conducted tion simply Uy to change managers. wanted 18, 2000. February unsuccessfully that she had to stated tried managers try to replace before and wanted Subcontracting Discussions C. approach. Uy and Ra- different Both 1999, the that the July same month mirez testified that one of they believed organize began campaign primary outsourcing benefits staff, Uy Ra- met with Eleanor technical finding good managers that the burden of mirez, the senior assistant administrator in the sub- for the would fall on During charge patient services. contractor, not on St. Ra- Vincent. While meeting Uy and Ramirez first discussed mirez testified she that the RC knew the work of employees would be disenfranchised Uy testified she department. outsourcing the work of the briefly Ramirez discussed successful “quality she also testified that this “was not what to alleviate use departments at Vin- in other issues” call a in our big player would role [she] further that she and testified cent. She discussions.” situation agreed Ramirez reassess the Ramirez, Uy, On December not, year.” They howev- “later on that did Hill, to discuss by phone and Párente met Párente, er, hospital pres- to Bill speak subcontracting. Uy that no one testified ident, about or other during the Union the conversa- mentioned subcontracting out the work of the RC Párente, piak- tion. ultimate decision er, moving approved forward with 18, 1999, eight days after On November subcontractor. filing announced it the Union was close Board, Uy petition an election with the later, to days Uy announced RC Five department managers met with RC Suarez management’s intent to investi- employees depart- Hancock to discuss outsourcing the of the RC de- gate work meeting, At that Hancock and ment. both Uy partment. employees told option the Suarez raised days thirty sixty would take between department. out the work Sua- the.RC investigate possible subcontractors. to .manage that he to rez stated was unable Uy, to the RC explained she According He both the also stated that employees that decision was “busi- Hancock that someone agreed he and by “concerns ness decision” motivated de- experienced be a better more would com- quality issues” and the various about day, Ra- manager. The next partment depart- concerning received plaints Uy investigate poten- mirez authorized ment. tial vendors. activity collectively protesting found in mid-December in concerted The ALJ pro- implementation pay the same time that St. Vincent around overtime of new outsourcing managers the RC de- discussed visions. department employees engaged partment, RC Párente, Implementing Subcontracting

D. hospital president, testified —Janu- ary February that he did not decide to subcontract work of the RC prevent 3, 2000, January Uy On or around con- therapists RC voting upcoming tacted Total Rehab Care and Interstate admit, however, union election. He did proposals Rehab Care and solicited that he was aware of the union election taking department. Uy over the RC stat- February scheduled for 2000 when he ed that provide the successful bidder must made his final decision to subcontract a an experienced respiratory manager and little over two weeks earlier. When agree employees to hire all current at sim- pressed by explain the ALJ to the timing ilar wages and benefits. Theodore Wein- decision, of the subcontracting Párente re- er, president and CEO of Total Rehab sponded it was precipitated by Care, company testified his too was any “emergency” in patient Rath- care.11 small subcontracting arrange- to handle a er, explained Párente that “it awas rea- involving twenty-seven ment employees management sonable decision within our 15, 2000, February before the start-up prerogative at the time and we made the required by February date St. Vincent. decision” and that “there a strong 15, 2000, days was three before the sched- possibility that a error serious could occur uled Union election. in a patient.” treatment of a companies ultimately The two contacted Párente further each testified that he did not other and submitted a pro- combined want to posal, which outsource the work of depart- St. Vincent received on Janu- RC ary 26, proposal 2000. The ment continuing was submitted while to direct- ly under the name of Respiratory employ California therapists. explained RC He Services, subsidiary of Interstate Rehab that such an arrangement would create a Care. proposal, Under the Weiner would “divided accountability” problem. Pár- Care, work for Total Rehab which con- ente stated that in opinion, his “the [RC] tracted Respiratory with California Ser- employees and manager [of the RC provide management vices to services. department] belong organiza- same Though proposal was open until March tion.” He explained also that the subcon- 26, 2000, agreed to the propos- tracting arrangement depart- another al on or January about 2000—the same ment of “was a workable day it was received. model that would have achieved [St. Vin- goals.” Contrary cent’s] goal Parente’s February

On about three weeks of preventing accountability, after divided the Union filed its election Weiner, Board, with the the new manager, management employees informed were not employed by the out- sourcing employer decision. same Ramirez because employees announced the RC that Respiratory directly California Services worked Respiratory would California take over that, the RC and Services while depart- Weiner and the 5, 2000, February effective California ment managers Res- worked for Total Rehab piratory directly Services would employ arrangement Care. This clearly resulted employees. the RC accountability divided because the RC hearing, As the AU stated at the Uy presented he was department with the any unable to find emergency that "there was patient survey results of a from December sort, any July of either in 1999 or in Decem- rating department as the most 1999, January ber February nor in or of appreciated among hospital the staff. employee 2000.” One RC even testified that ing burgeoned July 1999. campaign to California were accountable therapists while the Services The also concluded that the Respiratory ALJ Rehab Care. to Total were accountable in favor of the terminations militated the case: General Counsel’s “[ajfter the ALJ found that subcon- The effect, employees the same tracting Announcing change took the the status of same largely to do the work continued subcontracting the employees, super- “the same place,” same and that the work, only their after about 3 weeks the by the ... were hired subcon- visors also filing for an election Nevertheless, tractor.” Weiner testified suspicious its face so that if seems on department improved some- that the RC any of animus there were evidence or subcontracting. what after Fewer intent to discriminate that direct one complained depart- physicians about not hesitate to find the subcon- would some staff ment services and tracting to have been violative of the improve- on the members even commented [NLRA].... department. of the RC ment In the General Coun- further case, alleged sel’s the ALJ that the found Present Labor Practice E. The Unfair subcon- motivation behind Vincent’s NLRB’s Decision Charges plausi- lack tracting decision “seem[ed] February the Union an filed On bility” lack of “seeming and noted practice charge against St. unfair labor inway [the clear rationale for which charged The that Vin- Vincent. subcontracting carried out.” decision] was the work of the RC cent subcontracted out The ALJ noted St. Vincent’s asserted prevent “almost justification was too business in the Union elec- employees voting much and that its surface “[o]n to believe” tion, in violation of Sections fabrication, and not a appeared] to be 8(a)(3) of the NLRA. that.” very good one at 22, 2000, the Board’s On March General Notwithstanding findings, these ALJ against a complaint Counsel issued St. Vin- ignore found reason “to that there no hearing. a notice its an- cent and testimony [St. or Vin- disbelieve complaint, to the St. Vincent denied swer the effect since cent’s] witnesses allegations alleged as an affirma- problems have deci- tive defense its crediting St. Vin- largely vanished.” After sion was based on valid business reasons point, cent on this ALJ concluded organizing unrelated to activities carry Counsel failed General of the RC Wright Line. persuasion burden of under matter before an ALJ. The was heard The that “no matter how im- ALJ stated Ctr., Med. 338 NLRB No. See St. Vincent action, or its tim- probable[St. Vincent’s] 2003). (Mar. *1 2003 WL ... subcontracting may seem ing, in analyzed the General Counsel’s surface, there is no reasonable basis on Line, Wright 251 N.L.R.B. case under this ... me to doubt or causing record (1st Cir.1981), 1083, enforced, 662 F.2d 899 in, very fact success at of its challenge denied, 102 S.Ct. cert. U.S. last, remedying department’s long (1982). ALJ 71 L.Ed.2d 848 The credited intractable, prob- longstanding, seemingly General Counsel’s “clear evidence” changing that man- lems.” After RC depart Vincent knew that the frequently agers a “time honored and is orga ment was “core” of Union’s problems,” drive, management used organiz- and that the Union’s solution nizing 918 concluded, NLRB, (9th 304, “no matter how reluc- Cir.1996); v. 87 F.3d 307

tantly,” St. Vincent’s decision Indus., Inc., see also NLRB v. Nevis 647 “passe[d] muster.” (9th (“The 905, Cir.1981) F.2d 908 Board’s findings must be if enforced supported by

The Union and the General Counsel ap- evidence, substantial if even this court pealed the decision to the ALJ’s Board. might reach a different conclusion based decision, boilerplate its brief the Board evidence.”). However, the same rulings “[t]he affirmed the findings. ALJ’s Furthermore, substantial requires Board evidence test concluded that a case- by-case analysis and a review of the whole

[assuming arguendo that the General record,” Ctr., Cal. Pac. Med. 87 at F.3d Counsel satisfied his initial burden un- 307, Line, requires Wright reviewing der we find court Vin- [St. proven cent] has “take into account affirmative defense whatever in the record Wright under fairly Line of demonstrating detracts” from the Board’s conclu- it that would have sions, taken the same action NLRB, Universal Corp. Camera v. even employees’ absence of the 456, 340 U.S. 71 S.Ct. 95 L.Ed. protected Specifically, activities. (1951). [St. 456 has imple- Vincent] established that it Similarly, while we should be mind mented its subcontracting decision with- ful that “the determination of motive is in the day 30-to-60 time-frame it an- particularly within purview of the prior filing nounced to the NLRB,” Indus., Lippincott NLRB, Inc. v. for a representation election. (9th 112, 661 Cir.1981), F.2d 116 “we Ctr., 1785029, Vincent Med. 2003 WL set aside the Board’s determination of mo (internal omitted). *1at n. 4 citation if tive we find that it supported is not The Union filed this petition for review evidence,” NLRB, substantial Dash v. 793 10(f) pursuant NLRA, to Section (9th 1062,1066 Cir.1986). F.2d n. 6 160(f). § U.S.C. The challenges Union both the Board’s conclusion that the Gen- ANALYSIS eral Counsel failed to carry its burden of 8(a)(3) Section of the NLRA pro persuasion, and its conclusion that St. Vin- an employer hibits from discriminating cent established its affirmative defense un- against employees “in regard to hire or Wright der Line. The argues employment tenure of ... to discourage neither conclusion supported by is sub- membership any organization.” labor stantial evidence on the record as a whole. 158(a)(3). § 29 U.S.C.

STANDARD OF REVIEW Subcontracting decisions are not immune from the appeals may

“Courts reach of the overturn NLRA. Thus, Board only decisions if it Board’s find well-established that an employ ings of fact are not supported by er substan violates Section of the NLRA evidence, tial ifor the Board has incorrect where part operations, “close[s] of [its] ly applied the law.”12 Cal Pac. Med. Ctr. discharge^] the employees involved, and Board, 12. Counsel for relying on Chamber ord as a whole.” See Corp. Universal Camera NLRB, 457, Commercev. NLRB, 574 F.2d v. 340 U.S. 71 S.Ct. Cir.1978), states in its brief that we must (1951); NLRB, L.Ed. 456 see also Dash v. uphold the Board’s decision unless it has no (9th Cir.1986); 1065-66 Gen. weight rational basis. authority, how- NLRB, Teamsters Local 162 v. ever, makes clear we review the Board’s con- (9th Cir.1986). clusions for "substantial evidence in the rec-

919 NLRB, nation.” Inc. v. 113 F.3d the work anti-Union subcontracts] Schaeff Sewing 264, (D.C.Cir.1997). Am. Great Chinese 267 n. 5 purposes.”13 (9th NLRB, 251, 255 F.2d Cir. v. 578 Co. A. The Counsel’s General Case 1978); also Workers Union see Textile of Co., 263, challenges The Union the Board’s 380 Darlington Mfg. U.S. Am. v. 994, 16, conclusion that the General n. 85 13 L.Ed.2d 827 Counsel 272 S.Ct. NLRB, (1965); v. 196 present Reno Resorts anti-union Hilton sufficient evidence of (D.C.Cir.1999); 1275, NLRB F.3d 1282-83 animus persuasion. to sustain its burden of Recovery Corp., 134 F.3d Joy Tech. v. An it employer will seldom admit that was (7th Cir.1998). 1307, 1314-15 motivated anti-union animus when employment made its adverse decision. 8(a)(3) case In a Section such as v. Mining Corp. See Shattuck Denn this, burden-shifting the Board uses the NLRB, (9th Cir.1966) 466, 362 F.2d 470 Line to Wright set forth in deter scheme (“Actual motive, mind, being a state of an employer whether was motivated mine evidence question, it is seldom direct 251 at anti-union animus. See N.L.R.B. that is will be available not also self-serv 1089; Transp. Mgmt. Corp., NLRB v. 462 reason, ing.”). For that circumstantial evi 393, 2469, 399-403, 76 S.Ct. U.S. 103 anti-union dence sufficient establish (1983) (upholding Wright 667 L.Ed.2d Corp. motive. Breed v. Leasing See New scheme under the shifting Line burden NLRB, (9th Cir.1997); 111 F.3d 1465 NLRA), grounds by on other overruled NLRB, see also Folkins v. 500 F.2d 53 Programs Comp. v. Workers’ of Office curiam). Cir.1974) Collieries, 276-78, (per 512 U.S. Greenwich 2251, 129 (1994); see 114 S.Ct. L.Ed.2d fact, question of “Motive is Dash, 793 F.2d at 1066. Under also may rely the NLRB on direct and both Line, requires the Board Wright an em circumstantial evidence establish prima make a facie the General Counsel motive, factors ployer’s considering such the infer showing sufficient em employer’s knowledge as the conduct was a ‘moti protected ence that activities, employer’s ployee’s employer’s factor’ in decision. vating union, hostility and the toward established, this is the burden will Once Power, Inc. v. action.” employer’s employer to the to demonstrate shift NLRB, (D.C.Cir.1994); 40 F.3d that the same action would have taken NLRB, Waste, Inc. see also E.C. v. protected even the absence place Cir.2004) (1st (“To 36, 42 determine conduct. motive, indirect rely Board N.L.R.B. at 1089. While General reasonably drawn evidence and inferences retains the ultimate burden of Counsel circumstances.”). totality “once the General Counsel es- persuasion, animus a mo- tablishes anti-union Motive Evidence St. Vincent’s factor, tivating employer bears record as carefully reviewing After any affirmative de- establishing burden whole, evi- inevitability of we conclude substantial such as the termi- fense Hosp. charge. v. Med. argue that St. See NLRB Swedish 13. does Ctr., (9th Cir.1980) 8(a)(1) ("Any Section of the NLRA for rea- violated sup- relies 8(a)(3) necessarily different from those it on to sons ... violation of Section 8(a)(3) charge. Consequently, port Section of Section includes a derivative violation charge under treat Section we Union’s 8(a)(1).”). 8(a)(3) of its Section as derivative 920 the

dence does Board’s The effect of St. Vincent’s decision to out- the General Counsel to show operation source that anti-union animus was a motivating course, was the disenfranchisement of in factor St. Vincent’s decision to subcon- twenty-five percent of the employees tract out the As dis- (ninety-five percent already of whom had below, cussed strong the face of circum- Union) expressed join their desire to the animus, stantial evidence of anti-union the eligible who were otherwise to vote improperly post- credited evidence of representation election. subcontracting improvements in the RC Courts consistently have an treated em department dismissing as basis for ployer’s employment adverse action occur General Counsel’s case. ring filing between the of a petition for a Circumstantial evidence of anti- representation election with the Board and union animus compelling is in this case. ensuing election raising powerful as First, ample there is evidence that St. See, inference of anti-union animus. e.g., Vincent knew activity about the union Waste, Inc., (“[T]he E.C. 359 F.3d at 43 hospital in general, and in the RC probative timing value of the of the Com department particular. The head of pany’s firing employee] in [an action— human hospital resources for the specifi critical interval between the time that the cally hospital managers directed to moni Union filed petition recognition for tor all activity. Union depart Several RC planned representation election—is ob ment they also testified that vious.”); Joy Recovery Corp., Tech. 134 identified themselves to organizers Union F.3d at (concluding this “[i]n on various occasions during the second half case, timing everything,” where “[t]he of 1999 and asked to see Union fliers. closing of department comes on the Finally, several managers, includ heels of the organizational union’s activi ing hospital president, testified that ty,” including filing a petition repre for a they were aware of impending election); Power, Inc., sentation 40 F.3d at election when the subcontracting decision (“The timing layoff, just two was made. The testimony of St. Vincent’s election, weeks before the scheduled union managers regarding their awareness of the gives further credence to the charge of campaign Union’s is consistent with the animus.”); anti-union NLRB v. Rain- clear evidence that the openly Union was Ware, Inc., 732 F.2d Cir. actively soliciting support hospi 1984) (concluding that timing “[t]he tal throughout the second half of 1999. layoffs and closing provides warehouse Second, the inference of anti-union ani- strongest support for connecting anti-un mus raised the timing of St. Vincent’s ion sentiment with layoffs,” where the decision to subcontract is “stunningly obvi- layoffs and closing closely warehouse fol Rubin, ous.” See NLRB v. lowed a demand for union recognition). (2d Cir.1970). found, As the ALJ Because St. Vincent subcontracted out its “[f]rom standpoint [St. Vincent’s] the tim- entire RC less than two weeks ing of the action could scarcely imag- be before the election, scheduled union ined as worse.” timing of its decision raises an unmistak St. Vincent subcontracted out the de- able inference of anti-union animus. partment February less than a month after the Union filed its the decision to subcontract an Board, election with the and less than the work of is also two weeks before the scheduled suspicious election. because management prob- so, Even this is the same existed for scheduled.14 department RC in the lems a decade before St. Vincent began organizing than that the Union its more month of the out the work to subcontract decided hospital, thereby creating at the the drive Resorts, Hilton See Reno department. activity triggered that the inference (concluding “[t]he that F.3d at 1283 discussed subcontracting discussion. As out is contract of the decision to timing earlier, undisputed it is that St. Vincent of it the heels where “came on suspect” activ- were aware of the Union’s managers activity” employer the union heavy that those were marked- ities and activities for its purported the rationale knew of Thus, in the ly heightened July 1999. im- subcontracting long decision before men- managers fact that St. Vincent mere decision); Joy Re- that also plemented see subcontracting July in 1999 does tioned Corp., 134 F.3d at 1314-15 covery Tech. the of anti-union little to defeat inference employ- the of the (concluding timing that Moreover, was animus. the issue not fi- subcontracting on decision based er’s up again until November brought where it suspicious was nancial concerns after union circulated eight days the its organiza- heels of the union’s came “on the 10, announcing November flier the main- activity” and employer tional sequence union of imminent election. This for “a department unprofitably tained the strengthens, than diminish- rather events time”). in mid- period of Even significant es, animus. the inference anti-union the Union only a few months before seeking a that it was close to making findings announced in After substantial election, found the ALJ representation Counsel, the ALJ of the General hurry remedy to was no that St. Vincent of his the testimo- part analysis on focused prob- department management establishing ny of Vincent’s witnesses St. Indeed, that the Párente testified lems. effect, took after the that by caused to subcontract was not decision gener- productivity in the RC emergency patient an care this testi- ally improved. Having credited Thus, no obvious there was the ALJ concluded that the General mony, event for precipitating per- to carry its burden Counsel than the union elec- looming other decision Wright under Line. suasion essence, to appears St. tion. Vincent decision employer’s an Whether management tolerated its in-house have bad, however, ultimately good or has was problems up very until the moment in a case such Section techni- no relevance sought represent the Union this, issue hospital. cal at the as where critical staff determining wheth motive. In employer’s attempts to diminish The Board Section employment an decision violates er animus strong inference anti-union 8(a)(3), “crucial not whether factor is ac- by Vincent’s raised St. employ by [the reasons cited the business managers tions. It notes St. Vincent bad, they good or but whether were er] the work of subcontracting out mentioned were, fact, honestly invoked were July 1999 meet- Savoy NLRB v. change.” election the cause months before ing, hospital. argues the Union's activities in also there was no all of The Board above, there is management no the reasons discussed evidence that St. Vincent For direct flier, which St. No- to conclude that particular the Union’s basis paid attention to hearing produced before announcing the immi- Vincent at the flier vember Nevertheless, unnoticed pursuant subpoena, went ear- as discussed nent election. lier, management. paid attention (2d Cir.1964). Inc., 910; Laundry, 327 647 F.2d at see also NLRB v. relying erred in Stores, The ALJ therefore Dillon Cir. department’s improved 1981) (“[A] evidence flimsy or unsupported explana conditions to conclude that Vincent was tion affirmatively suggest anti-union animus in motivated employer upon pretext has seized depart- decision to subcontract motivation.”). an mask anti-union ment. St. Vincent asserted that it subcontract- short, highly suspect timing of St. ed out the department work of its RC Vincent’s decision to subcontract out the remedy longstanding management prob- coupled RC when with St. testified, lems. Uy As both and Ramirez knowledge activity, Vincent’s of union they wanted to subcontract out the work of strongly favored the General Counsel’s department to rid of themselves ALJ, Contrary case. to the we conclude managers. burden of reliable probative that the value of this evidence is They wanted that burden to fall on an any way in by diminished the evidence independent Nevertheless, contractor. improved conditions in depart- the RC Ramirez, Hancock, and Weiner each testi- subcontracting ment after the took effect. fied that subcontracting out the work of However, we turn to remaining evi- therapists RC was not needed to dence the record to determine whether achieve this result. Ramirez testified that the Board’s supported by conclusions were transfer of employees “[t]he had noth- substantial evidence on the record as a ing to do with Respiratory [California Ser- whole. getting manager.” vices] us a new Weiner also testified he could have achieved 2. Evidence Pretext the same results the RC The ALJ found that “[St. rea- Vincent’s] requiring without Respiratory California proceeding sons for as it did seem[ed] employ Services to employees di- lack plausibility” and that there was a Hancock, rectly. too, testified that he was “seeming lack of a clear rationale for the any not aware of requiring reason St. Vin- way in which [subcontracting] was carried cent to employees outsource the RC Furthermore, out.” the ALJ found that get order to manager a new for the de- St. Vincent’s asserted reason for subcon- partment. As each of these witnesses ex- tracting its surface appeared] “[o]n to be plained, they any were unaware of reason fabrication, very and not a good one at why subcontracting out the therapists RC that.” would ameliorate the department’s RC findings, These which we longstanding management problems. weigh along with other opposing evidence Thus, reason, even if there was such a ruling, Board’s further undermine the management of the Board’s conclusion that anti-union animus proffer one. motivating was not a factor the subcon Several of St. Vincent’s witnesses testi- tracting Dash, decision. See 793 F.2d at fied that subcontracting depart- out other 1066; Glass, see also NLRB v. Searle Auto ments Inc., proved (9th Cir.1985). success- ful in past. appeal, On the Board employer’s justifica “Where the asserted unreliable, tion contends that this shifting past practice evidence of its case is weakened, helps any and the to defeat conclusion that the ti-ue inference of anti-union reason activity Nonetheless, was for union is corre animus. St. Vincent failed to spondingly Indus., strengthened.” Nevis why demonstrate departments those were (1) subcontracted, vague pre- because the General Counsel than assertions sion other Without evidence “quality concerning issues.” sented evidence St. about unrebutted (2) decisions past knowledge activity, of union Vincent’s of man- type same prompted were to sub- of St. Vincent’s decision depart- concerns faced agement compelling contract raised inference ment, conclude that is no basis to there (3) animus, mistakenly anti-union the ALJ past consistently prac- acted with relied on post-subcontracting evidence the work its RC tice when outsourced establish the cause decision, (4) jus- business Vincent’s Párente, earlier, the hospi- explained As unreliable, raising tification was therefore outsourcing president, tal testified justification the inference continuing to di- management while merely pretext for anti-union animus. employees would rectly employ the RC af- We therefore examine St. Vincent’s accountability” problem. a “divided create if the firmative to determine defense accountability problem was But the divided Board’s ultimate decision in favor of St. by ultimate subcontract- not alleviated by supported evi- Vincent is substantial Contrary to Parente’s ing arrangement. a dence on record as whole. justification, RC directly employed employees were not B. St. Vincent’s Affirmative Defense Care, Total employer. the same Rehab pendency a union “The of all the company, hired former St. Weiner’s representation prevent election not does managers. It then contracted Vincent management carrying on its business Services Respiratory California with NLRB v. Anchor the normal fashion.” management to the RC services provide Co., 1359, therapists, 1366 age The RC on Pub. Times hand, directly Cir.1981). for California (9th Thus, worked other in a mixed-motive arrangement Respiratory Services. This Line, Wright employer case an under therapists and the place not the RC did avoid a violation where Section in the same or- department managers it would taken the can have establish Actually, ganization. challenged action even the absence been arrangement would have identical Dash, F.2d protected activity. See 793 contracted out its simply Resorts, 1066; 196 at also Reno Hilton see Total management services to Rehab Care. Line, 1284-85; 251 Wright F.3d at case, managers and the RC In either N.L.R.B. at 1089. employed would have been therapists concluded that St. Vincent Board directly by employer. same Because under affirmative defense established its accountability problem was not the divided sum, the concluded Wright Line. In Board subcontracting arrange- addressed imple- that it that St. Vincent “established ment, testimony point Parente’s on this subcontracting within mented its decision this was raises the inference that reason timeframe it announced day the 30-to-60 for animus. really pretext anti-union filing prior 3. Conclusion representation election.” See St. Vincent Ctr., at *1 n. Med. 2003 WL evidence in We conclude substantial however, footnote, of- simple The Board’s as a does not the record whole fact- into this insight fers little otherwise ruling that the General Counsel Board’s Special NLRB v. intensive case. See persuasion to meet burden its Inc., Servs., 11 89 this Mine Wright reach conclu- under Line. We Cir.1993) ing lack of a rationale for (discussing “depressing pat- way clear tern” which “[t]here of Board decisions which [the decision] issue, is one which the Board tucks serious justifi- carried out.” further found the He footnote”). into a cation was too much to “almost believe” it appealed] its surface “[o]n The announcement which the Board fabrication, very good be a and not a one likely place refers took December findings at that.” These reinforce the in- announcement, however, 1999. That hard ly ference that the true motive for the sub- reflects substantial evidence on the rec ord contracting as whole that St. Vincent would have decision was anti-union ani- department, Indus., Inc., subcontracted out mus. See Nevis 647 F.2d at did, when and as it in the absence of 910; Mining Shattuck Corp., Denn activity. Corp., Camera See Universal 340 F.2d at 470. 456; Line, U.S. at Wright S.Ct. whole, light record as a we NLRB at 1089. conscientiously “cannot find that the evi- While adhered to its intend- dence supporting decision is [the Board’s] ed timeline for substantial, light in the when viewed

work of the RC we would entirety record furnishes.” Uni- ignore need to a powerful string of coinci- versal Corp., Camera 340 U.S. at dences to that St. conclude Vincent would S.Ct. 456. implemented have subcontracting, when did, and as it in the absence of union CONCLUSION activity. First, despite experiencing man- Because we conclude that the Board’s agement problems decade, more for than a supported conclusions by are not substan- St. Vincent first mentioned subcontracting whole, tial evidence on the record as a we the same began month that the Union grant the Union’s for review and organize

full-scale campaign to the techni- remand this case to Board for further Second, cal though staff. St. Vincent first proceedings. outsourcing discussed in July it did investigate not decide to subcontractors PETITION FOR REVIEW GRANT- until days nine the Union after circulated ED.

a flier at hospital announcing its intent representation Third, to seek a election. BEEZER, Judge, dissenting: Circuit St. Vincent subcontracted the I am join opinion unable to less than two weeks before the scheduled court. precedents provide Our a consis- election, thereby disenfranchising one tent standard for the review of decisions quarter of eligible voters. by Although the NLRB. the correct stan- Moreover, above, as discussed the ALJ’s appear dards opinion, the Court’s findings regarding purported St. Vincent’s applied different standard is the evalua- justification substantially business detract tion of made record the ALJ and from the Board’s conclusion. St. Vincent’s NLRB. present witnesses did not consistent or I respectfully dissent. plausible explanation why for it was neces- sary to subcontract the work of I entire RC in order to obtain The law judge better administrative found that managers. The ALJ found that St. Vincent’s the General justification business Counsel to meet his “seem[ed] to plausibility,” Line, Inc., lack and Wright noted the “seem- burden under (1980). requires might as accept adequate [it] Line able mind Wright NLRB 1083 prove that anti-union if it is possible Counsel a conclusion—even the General motivating contrary a substantial or animus was conclusion from the draw ” factor the decision to subcontract Recon Refractory evidence.’ & Con- Department. The ALJ’s Respiratory Care NLRB, Inc. v. struction National La- finding (internal affirmed (9th Cir.2005) omitted). citation Board. review the Relations We bor rule, opinion this Ignoring the court for substantial evi NLRB determination discards the ALJ’s reasonable great and deference dence accord supports the evidence a conclusion that St. credibility ALJ and NLRB’s motive acting conformity past Vincent was with determinations, any as well inferences as practice in an to fix the attempt Depart- See New they drew from the evidence. undisputed management quali- ment’s NLRB, 111 Corp. v. Leasing Breed ty problems in favor an alternative find- (9th Cir.1997) (“[T]he 1460, 1464-65 ing supports its chosen outcome drawing is particularly capable [NLRB] the case. a labor from the facts of dis inferences There was no direct evidence of anti- Board to be accorded pute” “the is presented by union animus the General in- drawing derivative special deference entirety The Counsel. General evidence”) (internal cita- ferences from the timing Counsel’s case was the coincident omitted); Broadcasting Retlaw Co. v. tions of St. Vincent’s decision subcontract. (9th Cir.1995) NLRB, 53 F.3d sequence ALJ considered this by the (“Credibility determinations that, “I stated find and conclude deference, upheld given are and are great that Respon- while the evidence is clear inherently or they unless are incredible ample knowledge dent of the union unreasonable.”) (internal citations patently sympathies activities and insufficient [it] NLRB, omitted); Ind., v. Lippincott Inc. the of the ‘timing’ to conclude that Union’s (9th Cir.1981) (“[W]e 661 F.2d 116 preponderates in of activities here favor must be mindful the determination of by the result desired Counsel the Gen- particularly purview motive is within the of eral The came to this con- Counsel.” . NLRB.”). the clusion, by refusing to consider the timing, by of but bal- suspicious nature the II ancing timing evidence of the of the the ample presented evidence all in the against decision other evidence Respiratory Department the Care record. The ALJ noted that there were experiencing significant management was Vincent, prior charges against no filed performance problems. Faced and with no violations of Section independent in quality problems departments, other the Act, the and no Vin- of evidence evidence showed the St. Vincent suc- employees interested in union cent treated by cessfully problems alleviated subcon- organizing differently employ- than other tracting departments. St. out the the as Analyzing ees. a whole evidence testimony presented evidence that also and justification for weighing and the asserted to subcontract the medical decision against suspicious tim- performed by Department services ing, light history lack of of and based, instance, per- in this on these was activity, ALJ found St. Vin- anti-union to an in- formance issues and unrelated ALJ’s justification cent’s credible. The activity. precedent crease Our from finding, on inferences drawn based we “must affirm where the instructs that evidence, to be accorded ‘a circumstantial relevant evidence is such that reason- special deference cannot be reversed conflicting which inferences could be a finding drawn”). without the ALJ’s infer “inherently pat ences were incredible or Likewise, opinion’s reliance on ently unreasonable.” New Breed Leasing NLRB Joy Recovery v. Corp., Tech. Corp., 111 F.3d at 1464-65. (7th Cir.1998) for the opinion The gives court this find proposition that timing requires coincident ing no simply replaces deference and with a reasonable fact finder to conclude that contrary its own inference of animus based factor, anti-union animus a motivating suspicious on the same evidence of timing highlights faulty reasoning opin- rejected by noted and the ALJ and Board. ion and properly its failure to apply Ninth Rather than examine the record as a whole precedent. Joy Circuit Recovery, the opinion ignores of the court all evi court noted that timing of a decision to dence in manage the record favorable to close a could be seen either as by ment considered the ALJ and relies suspicious, light of the recent union solely on timing reverse the ALJ and activity, or a reasonable business decision Board’s decisions. See Cal. Pac. Med. Ctr. in light department’s recent difficul- NLRB, Cir.1996) v. 87 F.3d ties. The court timing stated that (“[t]he substantial requires evidence tests “supports both sides.” opinion Id. The record”). ... a review of the whole the court’s refusal to recognize, in this precedent created this finding is that case, that management’s where actions coincide tem “supports decision both sides” porally with union where there activity a reasonable compelled fact-finder is is evidence of to find coincident union activity anti-union regard animus without to other escalating management evidence problems exempli- the record. holding This is contrary to fies the results analysis oriented employed precedents our contrary to the cases opinion. upon by opinion relied of the court to Reasonable minds disagree about Waste, its conclusion. See E.C. whether the concurrent timing of the sub- NLRB, (1st Inc. v. Cir. contracting decision and the increased un- 2004) (holding suspicious timing “myr activity ion is sufficient evidence that anti- 8(a)(1)” § iad violations of was substantial union animus was a substantial factor supporting evidence Board’s of ani the subcontracting decision. I do not mus); Power, NRLB, Inc. v. 40 agree ignoring agency’s view (D.C.Cir.1994) (holding that coincident the facts and evidence is an adequate basis § and uncontested violations for us to reverse the ALJ and NLRB’s

was sufficient support evidence to Board’s decision. “A reviewing court not dis- finding). only evidence in the record place the NLRB’s choice between two fair- timing, beside the St. Vincent’s spotless ly views, conflicting though even the court working record of with unions and union justifiably would have made a different organizers, is sufficient to the ALJ choice had the matter been before it de finding. Board’s The opinion of the ” Co., novo. Retlaw Broadcasting court’s failure to consider this evidence is at 1005. contrary to Ninth precedent. Circuit See NLRB, Universal Camera Corp. v. 474, 487-88,

U.S. 71 S.Ct. 95 L.Ed. (1951) (stating that the Act definitively

precludes solely review based on select

pieces of evidence and ignoring “evidence

Case Details

Case Name: Healthcare Employees Union, Local 399 v. National Labor Relations Board

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 11, 2006

Citation: 463 F.3d 909

Docket Number: 03-72029

Court Abbreviation: 9th Cir.