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

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 *925 NLRB 1083 (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”) (internal…

ORDER AND OPINION

ORDER

The opinion and dissent filed March 17, 2006, slip op. 2743, and appearing at 441 F.3d 670 are hereby withdrawn.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.

OPINION

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…

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

NATIONAL LABOR RELATIONS ORDER AND

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 September 11, 2006

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

Opinion by Judge Pregerson; Dissent by Judge Beezer

11007 HEALTHCARE EMPLOYEES UNION v. NLRB 11011

COUNSEL

David A. Rosenfeld (brief & argued) and M. Suzanne Murphy (brief), Weinberg, Roger & Rosenfeld, Oakland, California, 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,…