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United Nurses Associations of California v. National Labor Relations Board

United States Court of Appeals, Ninth Circuit

September 11, 2017

United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL-CIO, Petitioner,
National Labor Relations Board, Respondent. Veritas Health Services, Inc., Intervenor, Veritas Health Services, Inc., DBA Chino Valley Medical Center, Petitioner, Union of Health Care Professionals; United Nurses Associations of California, Petitioners-Intervenors,
National Labor Relations Board, Respondent. National Labor Relations Board, Petitioner,
Veritas Health Services, Inc., Respondent, Union of Health Care Professionals; United Nurses Associations of California, Respondents-Intervenors.

          Argued and Submitted December 7, 2016 Pasadena, California

         On Petition for Review of an Order of the National Labor Relations Board NLRB No. 31-CA-029713, 31-CA-029713, 31-CA-029713

          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).

          Before: Harry Pregerson, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.

         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 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 process did not bar the relief the Union sought - rescission of the written policy.


          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.

          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.

         A. 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 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 retaken 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 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.

          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 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 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."

         B. 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 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]

          C. 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 ...

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