United Nurses Associations of California/Union of Health Care Professionals v. Nat'l Labor Relations Bd.
| Decision Date | 11 September 2017 |
| Docket Number | Nos. 15-70920, 15-71045, 15-71390.,s. 15-70920, 15-71045, 15-71390. |
| Citation | 871 F.3d 767 |
| Parties | UNITED NURSES ASSOCIATIONS OF CALIFORNIA/Union of Health Care Professionals, NUHHCE, AFSCME, AFL-CIO, Petitioner, Veritas Health Services, Inc., Intervenor, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Veritas Health Services, Inc., dba Chino Valley Medical Center, Petitioner, Union of Health Care Professionals ; United Nurses Associations of California, Petitioners-Intervenors, v. National Labor Relations Board, Respondent. National Labor Relations Board, Petitioner, v. Veritas Health Services, Inc., Respondent, Union of Health Care Professionals ; United Nurses Associations of California, Respondents-Intervenors. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
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.
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.
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 re-taken 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...
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