Nevada Service Employees Union, Local 1107, Seiu v. National Labor Relations Board

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEVADA SERVICE EMPLOYEES
UNION, LOCAL 1107, SEIU,
Petitioner,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent,
VALLEY HOSPITAL MEDICAL
CENTER INC.,
Real Party in Interest.
No. 08-70234
NLRB No. 351 NLRB No. 88
MEMORANDUM *
VALLEY HOSPITAL MEDICAL
CENTER INC.,
Petitioner,
v.
NATIONAL LABOR RELATIONS
BOARD,
No. 08-70793
NLRB No. 28-CA-21047
FILED
NOV 17 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Respondent.
NATIONAL LABOR RELATIONS
BOARD,
Petitioner,
v.
VALLEY HOSPITAL MEDICAL
CENTER INC.,
Respondent.
No. 08-71242
NLRB No. 28-CA-21047
On Petitions for Review of an Order of the
National Labor Relations Board
Argued and Submitted October 7, 2009
Pasadena, California
Before: HALL, W. FLETCHER, and CLIFTON, Circuit Judges.
Petitioners Nevada Service Employees Union, Local 1107 (the “Union”),
and Valley Hospital Medical Center, Inc. (“Valley Hospital”) seek review of a final
order of the respondent National Labor Relations Board (the “Board”), in which
the Board found that Valley Hospital violated sections 8(a)(1) and (3) of the
National Labor Relations Act (the “NLRA”) by discharging one of its employees,
registered nurse and union steward Joan Wells, for criticizing Valley Hospital’s

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nurse workloads. The Hospital contends that Nurse Wells’s complaints were not
protected by the NLRA, and the Union contends that the Board abused its
discretion by refusing to order rescission of Valley Hospital's Communication
Policy or to order electronic dissemination of the notice of violation.
The Board cross-petitions for enforcement of its order.
This Court has jurisdiction pursuant to 29 U.S.C. §§ 160(e) and (f). We
deny the petitions for review and grant the Board’s petition for enforcement.
I.
Nurse Wells was terminated by Valley Hospital because of three statements
she made regarding problems with staffing levels at Valley Hospital. The parties
do not dispute that the statements were related to an ongoing labor dispute.
An employee’s statements are protected under section 7 of the NLRA if they
are related to an ongoing labor dispute and are not “so disloyal, reckless, or
maliciously untrue as to lose the Act’s protection.” Emarco, Inc., 284 N.L.R.B.
832, 833 (1987); See 29 U.S.C. § 157. Under section 8 of the NLRA, it is an unfair
labor practice for an employer “to interfere with, restrain, or coerce employees in
the exercise of rights guaranteed in [section 7],” 29 U.S.C. § 158(a)(1), or
discriminate in regard to any term or condition of employment to discourage
membership in a union. 29 U.S.C. § 158(a)(3). This court upholds a Board

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decision “when substantial evidence supports its findings of fact and when the
agency applies the law correctly.” Sever v. NLRB, 231 F.3d 1156, 1164 (9th Cir.
2000).
Substantial evidence supports the Board’s determination that Wells’s
statements regarding Valley Hospital staffing levels were not knowingly or
recklessly false, given her reasonable reliance on her own observations,
information from other nurses, and her reasonable inferences therefrom. Emarco,
Inc., 284 N.L.R.B. at 833-34. The Board also properly addressed whether Wells’s
statements amounted to unprotected disloyalty, and substantial evidence supports
its findings that they did not because: (1) there was an undisputed connection
between her statements and the ongoing labor dispute; (2) her statements called for
improved working conditions at Valley Hospital; (3) the statements were not
strategically timed to harm Valley Hospital during a critical moment in its
business; (4) Nurse Wells did not breach important confidences; and (5) there was
no obvious intent to harm Valley Hospital. See NLRB v. Local Union No. 1229,
Int'l Bhd. of Elec. Workers (Jefferson Standard), 346 U.S. 464, 471, 475–78
(1953); Sierra Publ’g Co. v. NLRB, 889 F.2d 210, 217 (9th Cir. 1989).
This case is distinguishable from cases relied upon by Valley Hospital. See
Endicott Interconnect Techs., Inc. v. NLRB, 453 F.3d 532, 537 (D.C. Cir. 2006)

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(denying enforcement where Board failed to address whether employee’s
statements were “detrimentally disloyal”); St. Luke’s Episcopal-Presbyterian
Hosps., Inc. v. NLRB, 268 F.3d 575, 579-80 (8th Cir. 2001) (denying enforcement
where Board failed to address whether employee “falsely and publicly disparage[d]
her employer or its products and services”). Because substantial evidence supports
the Board’s explicit findings that Wells’s statements were not disloyal, reckless or
maliciously false, the Board properly concluded that Nurse Wells’s discharge
violated the NLRA.
II.
This court reviews the Board’s choice of remedy for an abuse of discretion.
Sever, 231 F.3d at 1165. The lawfulness of Valley Hospital’s Communications
Policy was not fully litigated before the Administrative Law Judge or the Board,
and therefore the Board did not abuse its discretion in refusing to order its
rescission. See Hi-Tech Cable Corp., 318 N.L.R.B. 280, 280 (1995). The Board
also did not abuse its discretion in refusing to order Valley Hospital to individually
email its employees notice of the NLRA violation, because the record does not
speak to the customary nature of Valley Hospital’s email communication to its
employees. See Nordstrom, Inc. & Unite Here, 347 N.L.R.B. 294, 294 (2006)
(denying request for notice to be posted to employer’s intranet website in absence

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of evidence that employer customarily used the intranet to communicate with
employees).
III.
For these reasons, we DENY Valley Hospital’s and the Union’s petitions for
review and GRANT the Board’s petition for enforcement.

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