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

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HEALTHCARE EMPLOYEES UNION, 

LOCAL 399, AFFILIATED WITH THE

SERVICE EMPLOYEES INTERNATIONAL

UNION, AFL-CIO,

Petitioner, No. 03-72029 v.  NLRB No. 31-CA-24325

NATIONAL LABOR RELATIONS

BOARD, OPINION

Respondent,

ST. VINCENT MEDICAL CENTER,

Respondent-Intervenor.  On Petition for Review of an Order of the National Labor Relations Board

Argued and Submitted February 9, 2005—Pasadena, California

Filed March 17, 2006

Before: Harry Pregerson, William C. Canby, Jr., and Robert R. Beezer, Circuit Judges.

Opinion by Judge Pregerson; Dissent by Judge Beezer COUNSEL

David A. Rosenfeld (brief & argued) and M. Suzanne Murphy (brief), Weinberg, Roger & Rosenfeld, Oakland, California, attorneys for the petitioner.

Meredith L. Jason (argued) and David Habenstreit and Jill A. Griffin (brief), National Labor Relations Board, Washington, D.C., attorneys for the respondent.

Gordon A. Letter (brief and argued), Littler Mendelson, Los Angeles, California, attorneys for the respondent-intervenor.

OPINION

PREGERSON,…

Healthcare 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).…

dissenting:

I am unable to join the opinion of the court. Our precedents provide a consistent standard for the review of decisions by the NLRB. Although the correct standards appear in the Court’s opinion, a different standard is applied in the evaluation of the record made by the ALJ and NLRB.

I respectfully dissent.

I

The administrative law judge found that the General Counsel failed to meet his burden under Wright Line, Inc., 251 NLRB 1083 , 1980 WL 12312 (1980). Wright Line requires the General Counsel prove that anti-union animus was a substantial or motivating factor in the decision to subcontract the Respiratory Care Department. The ALJ’s finding was affirmed by the National Labor Relations Board. We review the NLRB determination for substantial evidence and accord great deference to the ALJ and NLRB’s motive and credibility determinations, as well as any inferences they drew from the evidence. See New Breed Leasing Corp. v. NLRB, 111 F.3d 1460, 1464-65 (9th Cir.1997) (“[T]he [NLRB] is particularly capable of drawing inferences from the facts of a labor dispute” and “the Board is to be accorded special deference in drawing derivative inferences from the evidence”)…