Healthcare Employees Union, Local 399 v. N.L.R.B.
| Citation | 463 F.3d 909 |
| Decision Date | 11 September 2006 |
| Docket Number | No. 03-72029.,03-72029. |
| Parties | HEALTHCARE EMPLOYEES UNION, LOCAL 399, AFFILIATED WITH the SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, St. Vincent Medical Center, Respondent-Intervenor. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David A. Rosenfeld (brief & argued) and M. Suzanne Murphy (brief), Weinberg, Roger & Rosenfeld, Oakland, CA, for the petitioner.
Meredith L. Jason (argued) and David Habenstreit and Jill A. Griffin (brief), National Labor Relations Board, Washington, D.C., for the respondent.
Gordon A. Letter (brief and argued), Littler Mendelson, Los Angeles, CA, for respondent-intervenor.
On Petition for Review of an Order of the National Labor Relations Board. NLRB No. 31-CA-24325.
Before HARRY PREGERSON, WILLIAM C. CANBY, JR., and ROBERT R. BEEZER, Circuit Judges.
The opinion and dissent filed March 17, 2006, slip op. 2743, and appearing at 441 F.3d 670 are hereby withdrawn. A new opinion and dissent shall be filed concurrently with this order.
Judges Pregerson and Canby voted to deny the petitions for panel rehearing. Judge Beezer voted to grant the petitions for panel rehearing. Judge Pregerson voted to deny the petitions for rehearing en banc, and Judges Canby and Beezer so recommend.
The full court has been advised of the petitions for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. Accordingly, the petitions for panel rehearing and the petitions for rehearing en banc are hereby DENIED. No further petitions shall be entertained.
OPINIONHealthcare Employees Union Local 399 (the "Union") petitions this court to review a final order of the National Labor Relations Board (the "Board" or "NLRB"). The Board's order dismissed the Union's unfair labor practice charge against St. Vincent Medical Center ("St.Vincent").
In its unfair labor practice charge, the Union alleged that St. Vincent subcontracted out the work of the hospital's respiratory care department on the eve of a union election to prevent employees in that department from voting in the election, in violation of Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 158(a)(1), 158(a)(3).
After a hearing, an administrative law judge ("ALJ") ruled that the Union failed to carry its burden of persuasion that anti-union animus was a motivating factor in St. Vincent's subcontracting decision and dismissed the complaint. That ruling was affirmed by the Board. In addition, the Board ruled that even if the Union had carried its burden of persuasion, St. Vincent demonstrated that it would have subcontracted out the work of the department in the absence of union organizing activity.
We have jurisdiction under 29 U.S.C. § 160(f). For the reasons stated below, we grant the Union's petition for review and remand for further proceedings.
St. Vincent Medical Center is an acute care hospital located in Los Angeles, California. Before subcontracting1 out the work of the respiratory care ("RC") department in February 2000, St. Vincent employed twenty-seven respiratory care therapists. RC therapists are responsible for administering respiratory care treatment (i.e., administering intubations, ventilators, or life support systems) throughout the hospital. In addition to providing respiratory care treatment, RC therapists are responsible for assessing each patient's health and reporting each patient's status to on-coming shift employees and doctors.
St. Vincent contends that it outsourced the work of its RC department in February 2000 because it was unable to find and train suitable managers. St. Vincent's difficulty with management of the RC department had existed for a long time before the work of that department was actually subcontracted out. In fact, while the RC department's problems became more evident in the three years before the outsourcing decision, the hospital had comparable problems with its RC department for nearly thirteen years.
Despite the replacement of the RC department's manager in early 1999, the department's productivity standards continued to remain lower than those of other departments. Several RC employees testified that during 1999 they encountered problems that hindered them from accomplishing their assigned tasks. During that time they complained regularly to management about a lack of proper billing codes, lack of proper respiratory equipment, and general staffing problems.
The ongoing problems in the RC department did not go unnoticed by upper-level management.2 In the summer and fall of 1999 Ray Hancock and Ramon Suarez, both RC department managers, met regularly with Zita Uy, assistant administrator for the RC department, to discuss the problems in the RC department.
The Union began its campaign to organize the hospital's technical staff in July 1999, when it assigned between three and four full-time organizers to St. Vincent.3 Union organizers, easily identified by their distinctive T-shirts, spoke openly to employees at the hospital and passed out pro-union fliers several times a week. In early July, the Union picketed in front of the hospital as hospital managers stood by watching.4 Union organizers also stationed themselves in the hospital cafeteria between ten and twenty times a month and spoke to employees about the Union. As the campaign progressed, Union organizers made regular home visits to hospital staff to discuss the benefits of joining the Union. The Union's efforts proved successful, as the ALJ found that most of the Union's success in securing union authorization cards from employees occurred after mid-1999.5
The ALJ concluded that St. Vincent "admittedly made a studied effort to keep track of [the Union.]"6 Mary Hill, director of human resources for the hospital, testified that she asked her supervisors and managers to "let [her] know of any Union activity, whether that be leafletting or if employees are informing them of home visits, presence in the cafeteria, that sort of thing." Several RC department managers and one Union organizer testified about their open encounters with each other in and around the hospital.7 Another RC employee testified that during a meeting in 1999, Hancock, an RC department manager, stated that the Union only wanted money from the RC employees.8
The RC department, which made up twenty-five percent of the technical staff at the hospital, overwhelmingly supported the Union. The ALJ found that
[St. Vincent] could not have failed to have identified the RC employees as the core of the Union's supporters among the hospital's employees, and that[St. Vincent] may well have deduced, and probably did deduce, from such intelligence that the RC employees were the most likely proselytes of the Union's cause in other departments.
A lead organizer for the union, Roberto De La Cruz, testified that the RC department was "one of the strongest units" and that RC employees were "instrumental in pushing the [organizing] drive." De La Cruz testified that the RC employees comprised a majority of the organizing committee, which helped "[the Union staff] strategize as to how to proceed in the campaign and [identify] other workers." Between nine and twelve RC employees were openly pro-union. They discussed the Union with co-workers at work, openly talked to Union organizers, and passed out pro-union fliers in front of the hospital. De La Cruz testified that Union organizers held the RC department out to other departments in the technical staff as a strong pro-union department. About ninety-five percent of the RC employees ultimately signed union authorization cards.
In a flier dated November 10, 1999, and distributed throughout the hospital's technical staff, the Union announced that it was a "few weeks" away from filing an election petition with the Board. The flier also announced that once the election petition was filed, the Board would set an election within forty-five to sixty days.9
On January 5, 2000, the Union filed a petition for an election with the Board for the bargaining unit of one-hundred technical staff employees, which included the twenty-seven RC therapists. On January 21, 2000, the parties stipulated to an election to be conducted by the Board on February 18, 2000.
In July 1999, the same month that the Union began its campaign to organize the technical staff, Uy met with Eleanor Ramirez, the senior assistant administrator in charge of patient services. During that meeting Uy and Ramirez first discussed subcontracting out the work of the RC department. Uy testified that she and Ramirez briefly discussed the successful use of subcontracting to alleviate "quality issues" in other departments at St. Vincent. She further testified that she and Ramirez agreed to reassess the situation "later on that year." They did not, however, speak to Bill Parente, the hospital president, or other St. Vincent managers about subcontracting out the work of the RC department.
On November 18, 1999, eight days after the Union announced it was close to filing an election petition with the Board, Uy met with RC department managers Suarez and Hancock to discuss the RC department. At that meeting, both Hancock and Suarez raised the option of subcontracting out the work of the RC department. Suarez stated that he was unable to manage the department. He also stated that both he and Hancock agreed that someone more experienced would be a better department manager. The next day, Ramirez authorized Uy to investigate potential subcontracting vendors.
On December 20, 1999, Uy and Ramirez met again to discuss subcontracting.10 Uy testified that she and...
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