The opinion
FILED
NOT FOR PUBLICATION JUN 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SERVICE EMPLOYEES No. 10-72082
INTERNATIONAL UNION, NURSE
ALLIANCE, LOCAL 121RN, Local NLRB No. 21-CB-14428
121RN,
Petitioner, MEMORANDUM *
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent.
CAROLE JEAN BADERTSCHER, No. 10-72182
Petitioner, NLRB No. 21-CB-14428
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NATIONAL LABOR RELATIONS No. 10-72481
BOARD,
NLRB No. 21-CB-14428
Petitioner,
v.
SERVICE EMPLOYEES
INTERNATIONAL UNION, NURSES
ALLIANCE, LOCAL 121RN,
Respondent.
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted June 17, 2011
San Francisco, California
Before: SCHROEDER, RIPPLE,** and BEA, Circuit Judges.
Service Employees International Union, Local 121RN-Nurses Alliance (the
Union) and Carole Jean Badertscher petition for review of a decision of the
National Labor Relations Board (the Board). The Board has cross-applied for
enforcement of the order accompanying that decision.
**
The Honorable Kenneth F. Ripple, Senior Circuit Judge for the United
States Court of Appeals for the Seventh Circuit, sitting by designation.
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The Union principally challenges the Board’s finding that the Union violated
§ 8(b)(1)(A) of the NLRA by distributing its dues flyer. The Board found that the
strong unconditional language of the flyer was coercive as to the employees who
had no obligation to pay dues during the contractual hiatus. Substantial evidence
supports the Board’s finding. See Bldg. Material and Dump Truck Drivers, 274
NLRB 603, 604 (1985) (finding a § 8(b)(1)(A) violation when a Union’s actions
“have a reasonable tendency to coerce those employees who desire to refrain from
joining or assisting the union at a time when they were within their Section 7 rights
to do so” (emphasis in the original)). The remaining contention, with respect to the
legal standard applied to the conduct, is without merit and, in any event, was not
raised before the Board. See 29 U.S.C. § 160(e) (“No objection that has not been
urged before the Board, its member agent, or agency, shall be considered by the
court, unless the failure or neglect to urge such objection shall be excused because
of extraordinary circumstances.”)
Badertscher, for her part, challenges the Board’s decision not to rule on her
additional charge that the Union also violated § 8(b)(1)(A) by circulating a flyer
describing the impact of California’s professional strikebreaker statute on
employees. The Board did not decide the merits of her claim and she did not seek
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reconsideration before the Board. We, therefore, do not reach this challenge. See
29 U.S.C. § 160(e).
The Board’s application for the enforcement of its order, 10-72481, is
GRANTED. The Union’s petition for review, 10-72082, is DENIED.
Badertscher’s petition for review, 10-72182, is DISMISSED.
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