United Nurses Associations of California v. National Labor Relations Board

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED NURSES ASSOCIATIONS OF No. 15-70920

CALIFORNIA/UNION OF HEALTH

CARE PROFESSIONALS, NUHHCE, NLRB No.

AFSCME, AFL-CIO, 31-CA-029713

Petitioner,

VERITAS HEALTH SERVICES, INC.,

Intervenor,

v.

NATIONAL LABOR RELATIONS

BOARD,

Respondent.

2 UNITED NURSES ASS’NS OF CAL. V. NLRB

VERITAS HEALTH SERVICES, INC., No. 15-71045

DBA Chino Valley Medical Center,

Petitioner, NLRB No.

31-CA-029713

UNION OF HEALTH CARE

PROFESSIONALS; UNITED NURSES

ASSOCIATIONS OF CALIFORNIA,

Petitioners-Intervenors,

v.

NATIONAL LABOR RELATIONS

BOARD,

Respondent.

UNITED NURSES ASS’NS OF CAL. V. NLRB 3

NATIONAL LABOR RELATIONS No. 15-71390

BOARD,

Petitioner, NLRB No.

31-CA-029713

v.

VERITAS HEALTH SERVICES, INC., OPINION

Respondent,

UNION OF HEALTH CARE

PROFESSIONALS; UNITED NURSES

ASSOCIATIONS OF CALIFORNIA,

Respondents-Intervenors.

On Petition for Review of an Order of the

National Labor Relations Board

Argued and Submitted December 7, 2016

Pasadena, California

Filed September 11, 2017

Before: Harry Pregerson, Jacqueline H. Nguyen,

and John B. Owens, Circuit Judges.

Opinion by Judge Nguyen

4 UNITED NURSES ASS’NS OF CAL. V. NLRB

SUMMARY *

Labor Law

The panel denied the Chino Valley Medical Center’s

petition for review of the National Labor Relations Board’s

order determining that Chino Valley committed unfair labor

practices before and after a nurses union election in violation

of the National Labor Relations Act (“NLRA”), except as to

an incidental petitioning argument that the panel dismissed

for lack of jurisdiction; enforced the Board’s order; granted

the United Nurses Associations of California/Union of

Health Care Professionals, NUHHCE, AFSCME, AFL-CIO

(the “Union”)’s petition for review; and remanded for the

Board to address rescission of Chino Valley’s written policy

during the compliance stage.

The panel held that Chino Valley’s due process argument

– that the administrative law judge allegedly exhibited anti-

employer bias – was without merit. Because Chino Valley

did not otherwise contest the vast majority of the Board’s

unfair labor practices findings, the panel summarily enforced

the portions of the Board’s order that Chino Valley opposed

only on due process grounds.

The panel next considered Chino Valley’s substantive

challenges to two unfair labor practices. First, the panel held

that substantial evidence supported the finding that Chino

Valley committed an unfair labor practice in violation of

Sections 8(a)(1) and (3) of the NLRA by firing Ronald

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED NURSES ASS’NS OF CAL. V. NLRB 5

Magsino for his union activity because the law and the

record supported the finding that Magsino’s firing was

pretextual and that he was not a supervisor (where,

generally, the NLRA protects the rights of employees but not

supervisors). Second, the panel held that Chino Valley

violated Section 8(a)(1) of the NLRA by serving subpoenas

seeking information about confidential union activity

protected by Section 7 of the NLRA, including

communications with Union representatives and signed

authorization cards.

The panel held that the Noerr-Pennington doctrine,

which provides that concerted efforts to petition the

government that would otherwise be illegal may nonetheless

be protected by the First Amendment’s Petition Clause

where certain criteria were met, did not immunize Chino

Valley from unfair labor practice liability.

The panel held that Chino Valley’s unfair labor practices

warranted the Board’s remedy that Chino Valley schedule

meetings of all its employees, during paid work time, so that

the Board’s Notice to Employees could be read to them with

a Union representative present. Rejecting Chino Valley’s

challenges to the remedy, the panel held that nothing in the

NLRA protected an employer from the embarrassment it

might experience as a byproduct of the Board’s remedy, and

no authority required a more detailed analysis than the Board

or administrative law judge provided in these cases.

The panel turned to the Union’s petition challenging the

portion of the administrative law judge’s decision that

declined to address whether Chino Valley’s written policy

should be rescinded. The panel granted the Union’s petition

and remanded to the Board for a resolution of that narrow

issue at the compliance stage of the proceeding because due

6 UNITED NURSES ASS’NS OF CAL. V. NLRB

process did not bar the relief the Union sought – rescission

of the written policy.

COUNSEL

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).

UNITED NURSES ASS’NS OF CAL. V. NLRB 7

OPINION

NGUYEN, Circuit Judge:

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.

8 UNITED NURSES ASS’NS OF CAL. V. NLRB

I. Background

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.

CVMC’s discharge of Magsino

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

UNITED NURSES ASS’NS OF CAL. V. NLRB 9

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

10 UNITED NURSES ASS’NS OF CAL. V. NLRB

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.

UNITED NURSES ASS’NS OF CAL. V. NLRB 11

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 Union

supporter, Yesenia DeSantiago, received a final written

warning for the same two violations that CVMC claims

justify Magsino’s firing: (1) not re-taking a patient’s vital

signs; and (2) accessing and printing that patient’s

information in defending against the ensuing disciplinary

proceeding. As with Magsino, CVMC was unmoved by

DeSantiago’s explanation that Gilliatt had permitted her to

12 UNITED NURSES ASS’NS OF CAL. V. NLRB

use the patient information and that she could not have

defended herself without it. However, DeSantiago was told

that she would not be fired because the violations were “for

two different things,” given that one was for treatment of a

patient and the other was a violation of HIPAA. In contrast,

CVMC’s termination notice to Magsino characterized these

two violations—as well as his discipline under CVMC’s

illegal tardiness policy—as “similar,” thereby creating the

appearance that he had engaged in multiple “similar”

violations. 1

While CVMC aggressively pursued alleged HIPAA

violations among its union supporters, no manager was

disciplined for engaging in similar acts. For example, as part

of the disciplinary process, Gilliatt and the treating doctor

accessed and internally distributed the same patient’s

information. And, in contrast with the redacted documents

Magsino submitted to the human resources department,

Gilliatt disseminated unredacted records. Yet, neither

Gilliatt nor the treating doctor were investigated or

disciplined.

In addition, four other employees received only verbal or

written warnings for disseminating patient information

externally. CVMC gave a verbal warning to three

employees who faxed several types of patient information to

external recipients, including medical diagnoses, social

1

CVMC’s mischaracterization of the tardiness, vital signs, and

HIPAA infractions as “similar” violations appears to have been an effort

to elevate Magsino into the highest level of CVMC’s discipline policy,

for which termination is recommended. This highest level is reserved

for the most egregious HIPAA violations, namely, “an unacceptable

level of previous violations and accompanying verbal disclosure of

patient information regarding treatment and status.” Obviously, that

description does not fit Magsino’s conduct.

UNITED NURSES ASS’NS OF CAL. V. NLRB 13

security numbers, and financial information. Another

employee received only a written warning for repeatedly

sharing patient information externally, including leaving a

financial chart in the bathroom where it was found by a

customer.

On May 19, the day before Magsino’s termination,

CVMC’s own internal investigation concluded that Magsino

and DeSantiago should receive only retraining and a written

warning. CVMC’s investigation concluded that Magsino

committed “no breach when [he] accessed the computer to

review the electronic record,” but that his “unauthorized”

printing, copying, removal from the hospital, and inclusion

in his grievance of the partially redacted patient records was

a HIPAA breach.

On May 20, CVMC fired Magsino without waiting for

the results of the DPH investigation (which CVMC itself had

initiated) into whether any HIPAA breach had, in fact,

occurred. Seven days later, DPH concluded that “no breach

actually occurred.” DPH found that CVMC’s claim to the

contrary was “unsubstantiated” because “no information

was shared.” Instead, Magsino and DeSantiago’s use of

patient information was simply “for personal use in

defending themselves.”

Magsino’s status as an employee

In the proceedings below, CVMC sought to excuse its

firing of Magsino on the ground that his occasional shifts as

a relief charge nurse qualified him as a supervisor under the

NLRA, thereby depriving him of its protections. The Board

rejected this affirmative defense.

As the ALJ noted, CVMC and the Union had stipulated

in 2008 and in 2010 to the supervisory status of certain

14 UNITED NURSES ASS’NS OF CAL. V. NLRB

named charge nurses, none of whom are Magsino. The ALJ

also refused to credit Gilliatt’s testimony in response to

several leading questions about Magsino’s supervisor status,

citing her demeanor and evasive answers. Gilliatt testified

that a charge nurse assigns Registered Nurses (“RNs”) to

different rooms in the emergency department based on an

“assessment” of the RNs’ “experience,” “skill set,” and

“acuity of the patient.” Gilliatt testified that, as a charge

nurse, she had authority to assign work and that Magsino’s

“duties” and “authority” as a relief charge nurse were “no

different” from hers. However, she also admitted that relief

charge nurse shifts were assigned only when the regular

charge nurse was unavailable (which, as we explain later,

makes a big difference when determining supervisor status).

After rejecting CVMC’s argument that Magsino

engaged in supervisory functions as a relief charge nurse, the

ALJ did not reach the issue of whether Magsino’s work as a

relief charge nurse was a regular and substantial portion of

his time. However, testimony by Magsino and another

employee, Marlene Bacani, both of whom the ALJ found

credible, established that Magsino’s shifts as a relief charge

nurse decreased in 2010 from ten shifts in February to six

shifts in April to only three shifts in May. 2

2

Bacani testified that Magsino worked ten shifts as a charge nurse

in February 2010. Contrary to CVMC’s contention, Magsino’s

testimony does not contradict this statement, as he could not recall with

certainty the number of shifts he worked in February 2010. Furthermore,

CVMC’s counsel conceded during Magsino’s cross examination that the

number of shifts would be better reflected by documents (to which

CVMC has not directed this court).

UNITED NURSES ASS’NS OF CAL. V. NLRB 15

CVMC’s subpoenas seeking information about

union activity

CVMC also challenges on appeal the finding that CVMC

committed an unfair labor practice by serving subpoenas

seeking information protected by the NLRA.

Around May 2010 and while CVMC was preparing to

litigate its objections to the Union election, CVMC served

subpoenas on its nurses and the Union demanding, among

other things, the production of all communications with

union representatives, all documents relating to union

membership card solicitation, and all membership cards

signed by RNs. The subpoenas advised that nurses who had

never been employed as “Charge Nurses” could produce the

documents to a hearing officer at “an in camera inspection,

whereupon only non-privileged documents that are relevant

to [CVMC’s] Objections are provided to [CVMC].”

At the hearing on CVMC’s objections to the Union

election, the ALJ revoked portions of these subpoenas and

redacted some documents to prevent disclosure of the names

of nurses who had attended Union meetings or otherwise

supported the Union. See Veritas, 671 F.3d at 1274. The

ALJ reasoned that this information was protected by the

NLRA and was not relevant to CVMC’s election objection.

The D.C. Circuit affirmed these rulings in an opinion

rejecting CVMC’s several election objections. Veritas,

671 F.3d at 1274.

Proceedings before the ALJ and the Board

In a thorough decision, the ALJ found that CVMC

committed several unfair labor practices by engaging in

threats, coercion, and retaliation, including the conduct

described above. The ALJ ordered CVMC to cease and

16 UNITED NURSES ASS’NS OF CAL. V. NLRB

desist from its illegal conduct, which included CVMC’s oral

ban on employees communicating with the media. The

Union urged the ALJ to also rescind CVMC’s written policy

to the same effect, which CVMC itself had introduced and

authenticated. However, the ALJ declined to do so because,

while the oral ban was alleged as an unfair labor practice in

the complaint, the written policy was not and it was not

pursued by the General Counsel.

To remedy CVMC’s serious and widespread unfair labor

practices, the ALJ ordered that, among other things, CVMC

schedule meetings with all its employees during paid work

time so that, with a Union representative present, the Board’s

Notice to Employees could be read to them by management

or a Board agent. The Board affirmed the ALJ’s rulings,

findings, and conclusions, with a couple of modifications to

the ordered remedy that are not at issue here. CVMC and

the Union filed petitions for review, and the Board filed a

cross-application for enforcement.

II. Standard of Review

A court must uphold a Board decision “when substantial

evidence supports its findings of fact and when the agency

applies the law correctly.” Sever v. NLRB, 231 F.3d 1156,

1164 (9th Cir. 2000). The Board’s findings of fact are

conclusive if supported by substantial evidence on the record

as a whole. See 29 U.S.C. § 160(e); Universal Camera

Corp. v. NLRB, 340 U.S. 474, 477, 488 (1951). As to factual

findings, a court may not “displace the Board’s choice

between two fairly conflicting views, even though the court

would justifiably have made a different choice had the

matter been before it de novo.” Universal Camera, 340 U.S.

at 488.

UNITED NURSES ASS’NS OF CAL. V. NLRB 17

The Board’s credibility findings are entitled to “special

deference.” Sever, 231 F.3d at 1164. A court will not

reverse the Board’s credibility determinations unless they

are “inherently incredible or patently unreasonable.” Retlaw

Broad. Co. v. NLRB, 53 F.3d 1002, 1006 (9th Cir. 1995).

The Board is vested with “broad discretion to devise

remedies that effectuate the policies of the Act.” Sure-Tan,

Inc. v. NLRB, 467 U.S. 883, 898–99 (1984). We therefore

review the Board’s remedial order only for a “clear abuse of

discretion,” Cal. Pac. Med. Ctr. v. NLRB, 87 F.3d 304, 308

(9th Cir. 1996), meaning that the Board’s remedial order

“should stand unless it can be shown that the order is a patent

attempt to achieve ends other than those which can fairly be

said to effectuate the policies of the Act.” Va. Elec. & Power

Co. v. NLRB, 319 U.S. 533, 540 (1943).

We defer to any “reasonably defensible” interpretation

of the NLRA by the Board. Retlaw, 53 F.3d at 1005. Where

the NLRA is ambiguous such that the Board must choose

between conflicting reasonable interpretations, courts “must

respect the judgment of the agency empowered to apply the

law.” Holly Farms Corp. v. NLRB, 517 U.S. 392, 398–99

(1996).

III. Discussion

CVMC’s meritless due process argument does not

preclude summary enforcement of the Board’s

order

CVMC argues that it was denied due process because the

ALJ allegedly exhibited anti-employer bias. While CVMC

cites the voluminous record, it makes no substantive

argument and omits any legal authority suggesting how the

18 UNITED NURSES ASS’NS OF CAL. V. NLRB

ALJ erred. 3 Well-established law, including controlling

Supreme Court precedent, provides that no due process

violation or bias can be inferred from the conduct challenged

here: adverse credibility determinations of an employer’s

witnesses, 4 evidentiary rulings unfavorable to an employer, 5

questioning of an employer’s witnesses, 6 and alleged

expressions of impatience or anger. 7 Therefore, even if

CVMC’s characterization of the ALJ’s conduct were correct

(which it is not), CVMC has identified nothing “so extreme

as to display clear inability to render fair judgment.” Liteky

v. United States, 510 U.S. 540, 551 (1994).

Because CVMC’s due process challenge is without merit

and CVMC does not otherwise contest the vast majority of

the Board’s unfair labor practices findings, we summarily

enforce the portions of the Board’s order that CVMC

opposes only on due process grounds. See Diamond Walnut

Growers, Inc. v. NLRB, 53 F.3d 1085, 1087 (9th Cir. 1995);

NLRB v. Sav-On-Drugs, Inc., 709 F.2d 536, 542 (9th Cir.

1983). We next consider CVMC’s substantive challenges to

two unfair labor practices in light of the Board’s findings that

CVMC engaged in other unfair labor practices. See

3

The two cases relied upon by CVMC actually held that the

challenged administrative hearings “comport[ed] with the requirements

of due process.” Hannah v. Larche, 363 U.S. 420, 451 (1960); see also

Withrow v. Larkin, 421 U.S. 35, 58 (1975).

4

NLRB v. Pittsburgh S.S. Co., 337 U.S. 656, 659–60 (1949).

5

NLRB v. Phaostron Instrument & Elec. Co., 344 F.2d 855, 859 (9th

Cir. 1965); Hedison Mfg. Co. v. NLRB, 643 F.2d 32, 35 (1st Cir. 1981).

6

NLRB v. Cent. Press Cal., 527 F.2d 1156, 1157 (9th Cir. 1975).

7

Liteky v. United States, 510 U.S. 540, 556 (1994).

UNITED NURSES ASS’NS OF CAL. V. NLRB 19

Torrington Extend-A-Care Emp. Ass’n v. NLRB, 17 F.3d

580, 590 (2d Cir. 1994).

CVMC violated Section 8(a)(1) and (3) by firing

Magsino

Substantial evidence supports the finding that CVMC

committed an unfair labor practice in violation of Section

8(a)(1) and (3) of the NLRA, 29 U.S.C. § 158(a)(1) and (3),

by firing Magsino for his union activity. An employer

violates Section 8(a)(1) and (3) by, among other things,

discharging or disciplining an employee for his or others’

protected activity, such as supporting efforts to unionize.

NLRB v. HTH Corp., 693 F.3d 1051, 1059–60 (9th Cir.

2012); see 29 U.S.C. § 157. To determine an employer’s

motivation for taking an adverse employment action, the

Board uses the well-established test set forth in Wright Line,

251 N.L.R.B. 1083 (1980). NLRB v. Transp. Mgmt. Corp.,

462 U.S. 393, 399–403 (1983), overruled on other grounds

by Office of Workers’ Comp. Programs v. Greenwich

Collieries, 512 U.S. 267, 276–78 (1994).

Under Wright Line, the General Counsel must make a

showing “sufficient to support the inference that protected

conduct was a ‘motivating factor’ in the employer’s

decision.” Healthcare Emps. Union, Local 399, v. NLRB,

463 F.3d 909, 919 (9th Cir. 2006) (quoting Wright Line,

251 N.L.R.B. at 1089). The Board may infer a

discriminatory motive from direct or circumstantial

evidence. New Breed Leasing Corp. v. NLRB, 111 F.3d

1460, 1465 (9th Cir. 1997). After the General Counsel

makes this showing, “the burden will shift to the employer

to demonstrate that the same action would have taken place

even in the absence of protected conduct.” Healthcare

Emps. Union, 463 F.3d at 919 (quoting Wright Line,

251 N.L.R.B. at 1089). An employer cannot prove this

20 UNITED NURSES ASS’NS OF CAL. V. NLRB

affirmative defense where its “asserted reasons for a

discharge are found to be pretextual.” In re Stevens Creek

Chrysler Jeep Dodge, Inc., 357 N.L.R.B. 633, 637 (2011).

i. The General Counsel made a strong showing

of improper motive

An unlawful motive may be established in several ways,

including evidence of “the employer’s knowledge of the

employee’s union activities, the employer’s hostility toward

the union, and the timing of the employer’s action.”

Healthcare Emps. Union, 463 F.3d at 920–22 (internal

quotation marks omitted). All those indicia of

discriminatory motive are present here. In addition to calling

out Magsino as a Union “movie star,” CVMC expressed its

anti-union animus through several unfair labor practices,

including a retaliatory tardiness policy under which Magsino

was disciplined. CVMC also fired Magsino less than two

months after the Union won its election and less than two

weeks after CVMC’s unsuccessful hearing challenging the

election results. Accordingly, substantial evidence supports

the finding that union activity was a motivating factor in

Magsino’s discharge.

ii. Substantial evidence supports the finding that

CVMC invoked HIPAA as a pretext

CVMC’s termination of Magsino has all the hallmarks

of a pretextual firing, including deviations from its internal

practice, disparate treatment, and ex post facto justifications.

See Healthcare Emps. Union, 463 F.3d at 922–23; Lucky

Cab Co., 360 N.L.R.B. 271, 274 (2014). As summarized

above, CVMC expressly authorized Magsino to engage in

the conduct for which CVMC claims it fired him. Seven

other individuals either were not disciplined or received

lesser discipline for engaging in acts similar to or more

UNITED NURSES ASS’NS OF CAL. V. NLRB 21

egregious than those for which CVMC claims it fired

Magsino. In responding to Magsino’s purported HIPAA

violation, CVMC failed to follow its own internal policies

and ultimately fired him the day after its own internal

investigation recommended that he receive only retraining

and a written warning. CVMC also fired Magsino even

though a DPH investigation concluded that no HIPAA

breach actually occurred.

Any one of these factual findings alone would be enough

to establish pretext, and cumulatively they provide

overwhelming evidence that CVMC acted with a

discriminatory motive in firing Magsino. CVMC

nonetheless argues that it could have discharged Magsino

because he violated CVMC’s internal policies or HIPAA and

that, in any event, CVMC had a good-faith belief that he had

done so. The Board did not err in concluding that CVMC

failed to meet its burden under any of these theories. We

address each of CVMC’s arguments in turn.

CVMC invokes an affirmative defense that, even if

Magsino did not violate HIPAA, he violated CVMC’s

internal policies by not re-taking a patient’s vital signs and

by using that patient’s medical records in the disciplinary

proceeding. Substantial evidence supports the Board’s

rejection of this ex post facto justification.

At the outset, we note that CVMC’s assertion that it

could have fired Magsino for not re-taking vital signs has no

record support. CVMC identifies no evidence that it had an

internal policy requiring Magsino to do so, that he actually

violated the policy, or that CVMC could have lawfully fired

him as a result. And, unlike in the case relied upon by

CVMC, Butler-Johnson Corp. v. NLRB, 608 F.2d 1303,

1308 (9th Cir. 1979), the ALJ here made factual findings that

CVMC acted with an unlawful motive.

22 UNITED NURSES ASS’NS OF CAL. V. NLRB

Nor is CVMC correct that Magsino exceeded the scope

of his authorization by using the patient’s information to

defend himself during the disciplinary proceeding. Even

assuming CVMC could lawfully restrict its employees’ use

of patient information in such a manner, the evidence shows

that Gilliatt twice authorized Magsino to use the patient file

to defend himself, including engaging in the conduct for

which CVMC ostensibly fired him. Magsino’s credited

testimony was that, in addition to telling him on May 5 that

he could view and print medical records, Gilliatt told him on

May 6 “to review the . . . medical record and the dispute and

submit it” and that he could review the medical record “at

home”—a review which obviously required printing,

copying, and removing the record from the hospital. In

arguing to the contrary, CVMC simply ignores this

testimony, misrepresents the ALJ’s findings about it, and

relies on testimony by Gilliatt that the ALJ expressly found

not credible. But the ALJ’s credibility determinations are

entitled to “special deference,” and CVMC’s

misrepresentations of the record significantly undermine its

own argument on appeal. 8 Sever, 231 F.3d at 1164.

CVMC also fleetingly alludes to other internal policies

and California law that it suggests Magsino violated by using

patient information to defend himself in the disciplinary

proceeding. See Cal. Health & Safety Code § 1280.15; Cal.

Code Regs. tit. 22 § 70707. This perfunctory argument is

inadequately briefed and therefore waived. James River Ins.

8

For example, CVMC’s reply brief asserts that “the ALJ made no

finding that permission was given to remove patient records.” Not only

is that untrue, CVMC in fact challenged below the very finding that it

now claims the ALJ did not make, namely, that “Gilliatt authorized

Magsino to print a copy of [the] patient’s emergency room report and

take it home with him.”

UNITED NURSES ASS’NS OF CAL. V. NLRB 23

Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 n.1 (9th Cir.

2008). But even on the merits, CVMC points to no language

in these internal policies and California law that support its

position. Nor is there any basis to reverse the ALJ’s finding

that CVMC’s internal policies “would objectively lead

[Magsino] to believe he was allowed to access the medical

records.”

CVMC alternatively argues, without authority, that

Magsino’s use of patient information in a disciplinary

proceeding falls outside the protections of HIPAA’s internal

grievance procedure. CVMC’s interpretation is contrary to

the plain language of HIPAA’s internal grievance procedure

regulations, 9 which permits “disclosure to an employee

and/or employee representative, for example when the

employee needs protected health information to demonstrate

that the employer’s allegations of improper conduct are

untrue.” 10 More importantly, CVMC’s reading of HIPAA

would yield the absurd result of turning a disciplinary

proceeding into a Kafkaesque ordeal whereby an employee

cannot see or submit the very information by which she

seeks to challenge her discipline. Nor can CVMC’s position

be squared with the findings by DPH—the state agency that

investigated the supposed HIPAA violation—that “no

breach actually occurred” and that CVMC’s claim to the

9

45 C.F.R. § 164.506(c)(1) (“A covered entity may use or disclose

protected health information for its own treatment, payment, or health

care operations”); 45 C.F.R. § 164.501(6)(iii) (“Health care operations

means any of the following activities of the covered entity to the extent

that the activities are related to covered functions: . . . Resolution of

internal grievances”).

10

Standards for Privacy of Individually Identifiable Health

Information; Final Rule, 45 C.F.R. Parts 160 and 164, Section 164.501—

Definitions, 65 Fed. Reg. 82462, 82491 (Dec. 28, 2000).

24 UNITED NURSES ASS’NS OF CAL. V. NLRB

contrary was “unsubstantiated” because the patient

information was used to defend against a disciplinary

charge. CVMC’s argument also is beside the point, as the

Board’s decision did not turn on whether or not Magsino

violated HIPAA but rather on the ample evidence that

CVMC invoked HIPAA as a pretext for firing him.

CVMC next argues that Magsino is not similarly situated

to the seven individuals at CVMC who either were not

disciplined or received lesser discipline for engaging in

similar or more egregious HIPAA-related acts. Such

disparate treatment is enough to establish pretext. See

Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 468,

470 (9th Cir. 1966) (upholding Board’s determination that

discharge for insubordination was pretextual where

employer “refused to discharge” another employee also

accused of insubordination); Lucky Cab, 360 N.L.R.B. at

274 (discriminatory motive shown because “other drivers

were not discharged for the same or similar infractions as

those committed by” employees).

Gilliatt and the treating doctor both internally shared the

same patient’s medical information as part of the same

disciplinary proceeding for which Magsino was fired.

CVMC justifies these managers’ lack of discipline by

invoking a HIPAA regulation that permits the use of patient

information for the purpose of quality assessment and to

resolve internal grievances. See 45 C.F.R. §§ 164.501(1),

164.501(6)(iii). But those same purposes were also served

by Magsino’s use of the patient’s information to defend

himself in the disciplinary proceeding. Indeed, it is hard to

imagine how CVMC could have assessed the quality of

Magsino’s patient care without the information Magsino

submitted. CVMC also suggests that these two managers

acted with authorization that Magsino lacked, but fails to cite

UNITED NURSES ASS’NS OF CAL. V. NLRB 25

any evidence to challenge the ALJ’s contrary conclusion. In

fact, it was Magsino who obtained the authorization that

these managers lacked.

CVMC also fails to explain how Magsino is not similarly

situated to another nurse, DeSantiago, who received a final

written warning for the same purported violations around the

same time that Magsino did. CVMC argues that Magsino’s

conduct was more egregious because it spanned the course

of a week and included submitting a partially redacted

patient record to the human resources department. These are

not meaningful distinctions because Magsino was well

within his rights to do so and, regardless, CVMC expressly

authorized Magsino’s conduct. Nor is CVMC correct that a

finding of pretext is belied by its decision to fire one Union

“star” (Magsino) but not another union supporter

(DeSantiago). 11 An employer cannot camouflage its anti-

union animus by doling out gradations of punishment among

union supporters, as the NLRA bars an employer from

discriminating against every single one of them.

Equally unavailing is CVMC’s argument that Magsino

is not similarly situated to four other nurses who received

less severe discipline for similar or more egregious

disseminations of patient medical information internally and

externally. CVMC’s attempt to explain Magsino’s conduct

as somehow more “purposeful” than the other employees’

conduct is without factual support. In fact, as the ALJ found,

Magsino redacted and destroyed documents to maintain

confidentiality. And CVMC’s own internal investigation

11

The case cited by CVMC does not stand for that proposition. See

Sears, Roebuck & Co. v. NLRB, 349 F.3d 493, 506 (7th Cir. 2003)

(faulting Board for “not identify[ing] a single employee who . . . was

treated differently than” the terminated union supporter).

26 UNITED NURSES ASS’NS OF CAL. V. NLRB

concluded that Magsino “believe[d] that he was accessing

[the records] as part of his job” and recommended that he

merely be re-trained.

CVMC also argues that Magsino is not similarly situated

to any of the abovementioned individuals because he

engaged in a “series” of HIPAA violations, which CVMC

calculates by dividing into separate “acts” Magsino’s use of

one patient’s information. Yet the same method could be

used to slice and dice any of the other individuals’ conduct.

For example, Gilliatt’s use of patient information in

Magsino’s disciplinary meeting could be carved into several

discrete “acts,” one for each time she accessed, copied,

printed, carried, and handed to Magsino the nursing notes,

emergency room report, and medical record number. Yet,

CVMC did not even investigate Gilliatt, much less discipline

her.

Finally, despite initiating the DPH investigation, CVMC

now disavows its finding that “no breach actually occurred”

on the ground that DPH lacked jurisdiction to determine if

Magsino breached HIPAA. CVMC cites testimony to that

effect by its chief compliance officer, Suzanne Richards.

But this self-serving testimony is no substitute for legal

authority delineating an agency’s jurisdiction. Furthermore,

the ALJ found that she was not credible for several reasons,

including her inconsistent testimony attempting to reconcile

Magsino’s discharge with the lack of discipline for Gilliatt.

We therefore conclude that substantial evidence supports

the finding that CVMC’s discharge of Magsino was

pretextual and an unlawful labor practice.

UNITED NURSES ASS’NS OF CAL. V. NLRB 27

iii. CVMC failed to prove that Magsino was a

supervisor

Subject to certain exceptions, 12 the NLRA protects the

rights of employees—but not supervisors—to unionize,

bargain collectively, and engage in other concerted activity.

29 U.S.C. § 157; 29 U.S.C. § 152(3). Seizing on this

provision, CVMC argues that it was permissible to discharge

Magsino for his support of the Union because CVMC made

him a supervisor shortly before firing him, thereby leaving

him unprotected by the NLRA. We disagree.

As to the law, CVMC cannot retroactively strip Magsino

of the NLRA’s protections by promoting him to a supervisor

position and then firing him for past protected activity done

as an employee. And as to the facts, CVMC has failed to

show that Magsino was a supervisor, a burden that it bore as

the party asserting supervisory status. See NLRB v. Ky. River

Cmty. Care, Inc., 532 U.S. 706, 711–13 (2001); Oakwood

Healthcare, Inc., 348 N.L.R.B. 686, 694 (2006). Therefore,

there is no basis to reverse the Board’s determination that

Magsino was not a supervisor, which in any event is entitled

to “particularly strong” deference. N. Mont. Health Care

Ctr. v. NLRB, 178 F.3d 1089, 1094 (9th Cir. 1999).

12

See, e.g., Int’l Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 383

n.4 (1986) (“Even though supervisors are not covered by the Act, a

discharge [of a supervisor] may constitute a § 8(a)(1) unfair labor

practice if it infringes on the § 7 rights of the employer’s nonsupervisory

employees.”).

28 UNITED NURSES ASS’NS OF CAL. V. NLRB

a. CVMC cannot retroactively strip Magsino

of the NLRA’s protection

It is undisputed that Magsino was not a supervisor when

he worked as a relief charge nurse before March 15, 2010. 13

CVMC nonetheless argues, without authority, that

Magsino’s status as a non-supervisory employee prior to

mid-March is irrelevant because CVMC made him a

supervisor two months later on May 20, 2010, when it fired

him.

A similar argument was rejected in United Exposition

Service Co. v. NLRB, which enforced the Board’s order

requiring backpay and reinstatement for a “temporary

supervisor” whom the employer punished for participating

in a strike while he was an employee. 945 F.2d 1057, 1060–

61 (8th Cir. 1991). There, the parties had stipulated that the

punished individual was a statutory supervisor when he

performed out-of-town jobs. Id. at 1060. In rejecting the

employer’s argument that this supervisory status removed

him from the NLRA’s protection, the court reasoned that the

employer “retaliated against [him] for his activities as an

employee, not as a supervisor.” Id. Because he was an

employee when he “participated in the protected activities,”

his temporary supervisory status “does not vitiate his status

as a protected employee.” Id. at 1061. That same logic

underpins our conclusion here that an employer cannot

retroactively strip an employee of the NLRA’s protections

simply by making him a supervisor.

13

CVMC signed a stipulation with the Union ten days earlier on

March 5, 2010, stating that Gilliatt and five named charge nurses were

individuals who met the requirements for a supervisor under 29 U.S.C.

§ 152(11). Magsino, who worked ten shifts as a relief charge nurse in

February 2010, was not listed as one of those supervisors.

UNITED NURSES ASS’NS OF CAL. V. NLRB 29

Our holding is also compelled by the Supreme Court’s

instruction that the NLRA must be construed consistent with

its remedial purposes of encouraging collective bargaining

and protecting “the right of employees to engage in

concerted activities for their own benefit.” NLRB v. Lion Oil

Co., 352 U.S. 282, 289 (1957); see also Mastro Plastics

Corp. v. NLRB, 350 U.S. 270, 284 (1956). Permitting an

employer to retaliate against employees who engage in

protected activity by simply promoting them before firing

them would eviscerate the protections the NLRA affords to

employees and thwart their collective bargaining efforts.

b. CVMC failed to prove Magsino was a

supervisor

Even if CVMC were correct that a supervisor can be

fired for past protected activity engaged in as an employee,

substantial evidence supports the conclusion that CVMC

failed to prove that Magsino was a supervisor at the time he

was fired. To meet its burden, CVMC had to show, among

other things, that Magsino both: (1) performed “supervisory

functions”; and (2) spent a “regular and substantial portion”

of his work time doing so. Oakwood Healthcare,

348 N.L.R.B. at 694; see also 29 U.S.C. § 152(11) (defining

a “supervisor” as an “individual having authority, in the

interest of the employer, to . . . assign, . . . discipline other

employees, or responsibly to direct them, . . . if in connection

with the foregoing the exercise of such authority is not of a

merely routine or clerical nature, but requires the use of

independent judgment”).

CVMC contends that Magsino performed supervisory

functions as a relief charge nurse because Gilliatt testified

that she had authority as a charge nurse to assign work and

that Magsino’s “duties” and “authority” as a relief charge

nurse were “no different” from hers. But as the ALJ

30 UNITED NURSES ASS’NS OF CAL. V. NLRB

correctly found, a manager’s “conclusory testimony that

employees have supervisory responsibilities,” without more,

fails to establish their supervisory status. Frenchtown

Acquisition Co. v. NLRB, 683 F.3d 298, 307 (6th Cir. 2012)

(holding charge nurses were not supervisors despite

conclusory testimony by director of nursing as to their

authority to discipline); G4s Regulated Sec. Sols.,

362 N.L.R.B. No. 134, at *2 (June 25, 2015), enforced

670 Fed. App’x 697 (11th Cir. 2016).

CVMC also invokes the 2008 and 2010 stipulations in

which it and the Union agreed that certain named charge

nurses qualified as supervisors. But none of the supervisors

named were Magsino, and these documents say nothing

about Magsino’s duties as of May 20, 2010. Even if they

did, such “paper authority” does not establish supervisory

status; rather, an employer must present evidence that the

authority was actually exercised by the purported supervisor.

N. Mont. Health Care, 178 F.3d at 1095; Frenchtown,

683 F.3d at 307–08 & n.5 (upholding Board’s refusal to

credit charge nurses’ job descriptions that tracked language

of statutory supervisor definition).

Even if Magsino performed nothing but supervisory

functions as a relief charge nurse, the record belies CVMC’s

claim that Magsino’s work as a relief charge nurse became

regular after March 15, 2010. CVMC focuses on this date

because it is when Gilliatt was promoted to director of the

emergency room and so ceased working as a charge nurse.

The implication, CVMC argues, is that Magsino stepped into

Gilliatt’s shoes. But the record does not bear this out.

Magsino’s shifts as a relief charge nurse in 2010 decreased

from ten shifts in February to six shifts in April to only three

shifts in May. Gilliatt also conceded that she assigned shifts

to relief charge nurses only if charge nurses were not

UNITED NURSES ASS’NS OF CAL. V. NLRB 31

available. Far from “regular” work—meaning work

“according to a pattern or schedule”—Magsino’s shifts

reflect exactly the “sporadic substitution” of one nurse for

another that the Board has held indicates a lack of

supervisory status. Oakwood Healthcare, 348 N.L.R.B. at

694, 699 (employer failed to establish supervisory status of

“rotating charge nurses” who substituted in for full-time

charge nurses).

Having offered no evidence as to the percentage of

Magsino’s work time spent as a relief charge nurse (much

less the portion spent on supervisory functions), CVMC

seeks to fill the gap with the ALJ’s observation that RNs

“typically” work three shifts per week. But an employer

cannot substitute generalities for actual evidence of the

amount of time its employees spent performing supervisory

functions. N. Mont. Health Care, 178 F.3d at 1095; G4s

Regulated, 362 N.L.R.B. No. 134, at *2 (“[M]ere inferences

or conclusory statements, without detailed, specific

evidence, are insufficient to establish supervisory

authority.”).

Finally, CVMC argues that this court cannot affirm

because the ALJ made no factual findings as to whether

Magsino’s supervisory functions were a regular and

substantial portion of his work time. This argument turns

CVMC’s burden on its head, as the absence of factual

findings supporting supervisory status cannot justify

reversal of the Board’s decision. Rather, “[b]ecause the

[employer] bears the burden of proving statutory supervisory

status, the Board must hold against the [employer] any lack

of evidence on an element necessary to establish that status.”

G4s Regulated, 362 NLRB No. 134, at *2. Moreover, the

record suggests that the ALJ did not reach this factual issue

because he correctly found that Gilliatt’s conclusory

32 UNITED NURSES ASS’NS OF CAL. V. NLRB

testimony failed to prove the threshold question of whether

Magsino engaged in any supervisory functions. See

Providence Alaska Med. Ctr. v. NLRB, 121 F.3d 548, 553–

55 (9th Cir. 1997) (charge nurses’ “routine guidance to other

RNs” and authority to “call in RNs or authorize overtime”

failed to establish supervisory status).

In short, because the law and the record support the

finding that Magsino’s firing was pretextual and that he was

not a supervisor, we affirm the finding that his discharge was

an unfair labor practice.

CVMC violated Section 8(a)(1) by serving

subpoenas seeking information about confidential

union activity protected by Section 7

Substantial evidence also supports the Board’s finding

that CVMC violated Section 8(a)(1) by serving subpoenas

on employees and the Union seeking confidential

information protected by Section 7 of the NLRA, 29 U.S.C.

§ 157, including communications with Union

representatives and signed authorization cards.

“It is well settled that Section 7 of the NLRA gives

employees the right to keep confidential their union

activities.” Veritas Health Servs., Inc. v. NLRB, 671 F.3d

1267, 1274 (D.C. Cir. 2012) (quoting Guess?, Inc.,

339 N.L.R.B. 432, 434 (2003)). Applying this rule, the

Board here reasoned that “the breadth of the subpoenas at

issue here and the nature of the information requested—

encompassing communications between employees and the

Union, union authorization and membership cards, and all

documents relating to the distribution and/or solicitation of

union authorization and membership cards—would subject

employees’ [Section 7] activities to unwarranted

investigation and interrogation.” (citing Nat’l Tel. Directory

UNITED NURSES ASS’NS OF CAL. V. NLRB 33

Corp., 319 N.L.R.B. 420, 421 (1995)). In rejecting CVMC’s

argument that employees’ rights could be safeguarded by

having a hearing officer conduct an in-camera inspection of

the documents CVMC sought, the Board explained that the

“the harm is in the very request itself, which would have a

chilling effect on employees’ willingness to engage in (or

refrain from) protected activities.” (citing Pac. Molasses

Co. v. NLRB, 577 F.2d 1172 (5th Cir. 1978)).

i. An employer cannot circumvent the NLRA’s

protections

CVMC raises several disparate arguments, none of

which are persuasive. CVMC first argues that its subpoena

requests had no chilling effect because Union supporters had

“outed” themselves in Union campaign posters featuring

their photos. This argument simply ignores the harmful

effect that an employer’s demand for information has on all

workers, any one of whom might be dissuaded from union

activity if they think an employer may learn of it. See Nat’l

Tel., 319 N.L.R.B. at 421 (quashing employer’s subpoena

seeking union authorization cards due to their “chilling

effect”); NLRB v. Maxwell, 637 F.2d 698, 702 (9th Cir.

1981) (“If an employee knows that his statements may

become available to his employer, he is certainly less likely

to make a candid statement to the Board.”); Comm. on

Masonic Homes of R. W. Grand Lodge, F. & A. M. of Pa. v.

NLRB, 556 F.2d 214, 221 (3d Cir. 1977) (“[I]t is entirely

plausible that employees would be ‘chilled’ when asked to

sign a union card if they knew the employer could see who

signed.”).

Next, CVMC contends that the Board should have

balanced employees’ Section 7 rights against CVMC’s

interest in obtaining information to support its election

objection alleging that supervisor support tainted the

34 UNITED NURSES ASS’NS OF CAL. V. NLRB

election results. But no such balancing is required to

determine an employer’s liability for an unfair labor

practice, as the NLRA’s mandatory language makes clear

that an employer’s desires cannot eclipse employees’ rights.

See 29 U.S.C. § 158 (“It shall be an unfair labor practice for

an employer . . . to interfere with, restrain, or coerce

employees in the exercise of the rights guaranteed in”

Section 7). Moreover, CVMC had no interest to balance

because the overbroad subpoenas included requests for

information (e.g. union activity by non-supervisors) that

were irrelevant to CVMC’s election objection, as the ALJ

held in a decision affirmed by the D.C. Circuit. See Veritas,

671 F.3d at 1274. Nor does it matter that the subpoenas also

contained other requests that the ALJ deemed relevant to

CVMC’s election objection, as CVMC chose not to limit its

subpoenas to that information. 14 See Dilling Mech.

Contractors, Inc., 357 N.L.R.B. 544, 546 (2011) (employer

violated Section 8(a)(1) by serving discovery requests

seeking Section 7 information not relevant to its lawsuit).

CVMC also attempts to distinguish a case cited by the

Board, Pacific Molasses Co. v. NLRB, 577 F.2d 1172 (5th

Cir. 1978), because there the court denied an employer’s

Freedom of Information Act (“FOIA”) request to obtain

information protected by Section 7, whereas CVMC here

used a subpoena. But the method by which CVMC sought

to obtain information to which it was not entitled is a

distinction without a difference, as the Board has implicitly

14

CVMC also argues that the Board’s failure to cite the D.C.

Circuit’s decision prevents us from, consistent with its holding, affirming

on the ground that the subpoenas sought irrelevant information. No case

supports the notion that we must remand for the Board to engage in a

superfluous rebalancing of an interest that has already been determined

to be non-existent by another court.

UNITED NURSES ASS’NS OF CAL. V. NLRB 35

recognized in relying on FOIA cases to quash subpoenas.

See Nat’l Tel., 319 N.L.R.B. at 421 (quashing employer’s

subpoena request for Section 7 information and citing to

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978),

which rejected an employer’s FOIA request).

CVMC similarly challenges the propriety of the Board’s

citation to National Telephone, which quashed an

employer’s subpoenas that sought production of

authorization cards signed by employees and other

documents relating to union activity. 319 N.L.R.B. at 420,

422. CVMC argues that the case did not determine whether

an unfair labor practice had occurred and that the employer

there sought information which, CVMC contends, was less

relevant than that which it sought here. This critique ignores

the purpose for which the Board cited National Telephone,

which was simply for the well-established law that union

activity is protected from employers’ prying eyes.

Finally, CVMC briefly argues that, because the Board

has occasionally in other cases introduced into evidence

signed authorization cards to prove a union majority, CVMC

should be able to obtain similar information. This is a false

equivalency. That the NLRA empowers the Board to

confirm a union’s majority support among workers does not

excuse an employer from committing an unfair labor

practice in an effort to overturn a union election.

ii. The Noerr-Pennington doctrine does not

immunize CVMC from unfair labor practice

liability

CVMC alternatively invokes the Noerr-Pennington

doctrine to argue that its service of subpoenas was protected

from unfair labor practice liability by the First Amendment’s

Petition Clause. CVMC’s arguments lack merit.

36 UNITED NURSES ASS’NS OF CAL. V. NLRB

Originating as a shield against antitrust liability, the

Noerr-Pennington doctrine provides that concerted efforts to

petition the government that would otherwise be illegal may

nonetheless be protected by the First Amendment’s Petition

Clause when certain criteria are met. Allied Tube & Conduit

Corp. v. Indian Head, Inc., 486 U.S. 492, 499 (1988). While

the Supreme Court has intimated that the Noerr-Pennington

doctrine may cover some lawsuits by unions or employers

that are “reasonably based,” BE & K Constr. Co. v. NLRB,

536 U.S. 516, 536 (2002), it has exempted from such

protection those employer lawsuits that are preempted by the

NLRA or—as here—have an “objective that is illegal under

federal law.” Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S.

731, 737 n.5 (1983); Diamond Walnut Growers, 53 F.3d at

1089. 15 The Noerr-Pennington doctrine does not encompass

the latter lawsuits because an employer’s First Amendment

rights “cannot outweigh the equal rights of the employees to

associate freely, as those rights are embodied in [Section] 7

and protected by [Section] 8(a)(1)” of the NLRA. NLRB v.

Gissel Packing Co., 395 U.S. 575, 617 (1969); White v. Lee,

227 F.3d 1214, 1236–37 (9th Cir. 2000) (explaining that an

employer’s “unfair labor practice under the NLRA does not

receive full First Amendment protection” because

employees’ associational rights limit the reach of Noerr-

Pennington in the NLRA context); NLRB v. Associated Gen.

Contractors of Cal., Inc., 633 F.2d 766, 772 n.9 (9th Cir.

1980) (holding employer conduct that “would otherwise be

protected” under the First Amendment “may be regulated if

necessary to protect substantial rights of employees or to

preserve harmonious labor relations in the public interest”).

15

BE & K “left undisturbed” this exemption from Bill Johnson’s.

Small v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n Local 200,

611 F.3d 483, 492 (9th Cir. 2010).

UNITED NURSES ASS’NS OF CAL. V. NLRB 37

CVMC’s demands for confidential Section 7

information, including information irrelevant to its election

objection, fall outside the protection of the Noerr-

Pennington doctrine because, as discussed earlier, CVMC’s

conduct reflects an illegal objective. Our conclusion is

bolstered by Wright Electric, Inc. v. NLRB, which enforced

the Board’s order against an employer whose discovery

requests, like CVMC’s subpoenas, improperly sought signed

union authorization cards. 200 F.3d 1162, 1167 (8th Cir.

2000). The court reasoned that, “[b]ecause it is unlawful

under § 8(a)(1) of the NLRA for an employer to discover or

attempt to discover the identities of employees who have

signed union authorization cards,” the discovery requests

had “an illegal objective” that removed them from the First

Amendment’s protection. Id. (citing Bill Johnson’s,

461 U.S. at 737 n.5). The court also noted that the

information sought was “not relevant” to the employer’s

claims. Id. That reasoning, which the Board has followed

for years and which our sister circuits have upheld, applies

with equal force to bar CVMC’s conduct here. See Dilling,

357 N.L.R.B. at 546 (holding discovery requests violated

Section 8(a)(1) and, because request for union members’

names reflected an “illegal objective,” rejecting argument

that BE & K dictated different result); Santa Barbara News-

Press, 358 N.L.R.B. 1539, 1540–42 (2012), incorporated by

reference in 361 N.L.R.B. No. 88 (Nov. 3, 2014), enforced

sub nom. Ampersand Publ’g v. NLRB, No. 15-1074, 2017

WL 1314946, at *4 (D.C. Cir. Mar. 3, 2017) (same).

Alternatively, Noerr-Pennington does not immunize

CVMC from liability because its demands for employees’

confidential information are not direct petitioning. Outside

the labor law context, the Supreme Court has recognized two

types of conduct that may be protected under the Noerr-

Pennington doctrine: (1) “direct” conduct, such as a lawsuit,

38 UNITED NURSES ASS’NS OF CAL. V. NLRB

which seeks to influence governmental action 16; and

(2) conduct “incidental” to direct conduct, such as sending a

pre-litigation settlement demand letter. 17 See Venetian

Casino Resort, L.L.C. v. NLRB, 484 F.3d 601, 611 (D.C. Cir.

2007). The Supreme Court “has extended Noerr-

Pennington immunity into labor law only to protect direct

petitioning, i.e., employer lawsuits,” but not to protect

indirect petitioning. Id. at 612.

In rejecting CVMC’s Petition Clause argument, the

Board relied on Santa Barbara News-Press, a well-reasoned

decision which held that the Petition Clause did not

immunize an employer from unfair labor practice liability

where, as here, the employer’s subpoenas sought

confidential Section 7 information from several employees.

See 358 N.L.R.B. at 1541. There, the employer obtained

subpoenas from the Regional Director and caused them to be

served on employees. Id. at 1539, 1541. The Board

reasoned that this conduct “clearly did not constitute direct

petitioning” because the employer did not seek to influence

any government agency. Id. at 1541. To the extent the

Regional Director was involved, it was purely in a

“ministerial capacity” because the Regional Director was

See Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508,

16

510 (1972).

17

See Sosa v. DIRECTV, Inc., 437 F.3d 923, 942 (9th Cir. 2006).

To the extent CVMC urges us to expand Noerr-Pennington immunity

beyond the bounds recognized by the Supreme Court, CVMC’s failure

to even mention incidental petitioning or any case addressing the concept

in its conclusory, one-paragraph argument before the Board deprives this

court of jurisdiction to consider it. See Woelke & Romero Framing, Inc.

v. NLRB, 456 U.S. 645, 665 (1982); 29 U.S.C. § 160(e) (“[n]o objection

that has not been urged before the Board . . . shall be considered by the

court”).

UNITED NURSES ASS’NS OF CAL. V. NLRB 39

required by law to “process such requests in a

nondiscretionary manner.” Id.; see also Hilton v. City of

Wheeling, 209 F.3d 1005, 1007 (7th Cir. 2000) (the Petition

Clause does not “imply a duty of the government to make

every government employee a petition receiver”). The

Board also highlighted the mismatch between the purported

petitioning—the employer’s request for subpoenas from the

Regional Director—and the conduct giving rise to the unfair

labor practice—the employer’s use of those subpoenas to

demand that employees produce their confidential Section 7

information. Santa Barbara News-Press, 358 N.L.R.B. at

1541.

Here, there is the same mismatch between the conduct

giving rise to CVMC’s unfair labor practice liability and the

conduct it characterizes as protected petitioning—which, in

any event, is not direct petitioning. In demanding its

employees’ confidential Section 7 information, CVMC was

attempting to influence its employees, not the government.

Such conduct does not merit First Amendment protection

because “what is basically at stake is the establishment of a

nonpermanent, limited relationship between the employer,

his economically dependent employee and his union agent,

not the election of legislators or the enactment of

legislation.” Gissel Packing, 395 U.S. at 617–18. To hold

otherwise would eviscerate the protections of the NLRA and

the First Amendment associational rights of employees

embodied in it, as employers could simply accomplish by

subpoena that which they are barred from doing by law. See

id. at 617.

CVMC’s unfair labor practices warranted the

Board’s remedy of a reading order

To remedy CVMC’s unfair labor practices, the ALJ

ordered that CVMC schedule meetings of all its employees,

40 UNITED NURSES ASS’NS OF CAL. V. NLRB

during paid work time, so that the Board’s Notice to

Employees could be read to them with a Union

representative present. The Board affirmed that order. The

Board is vested with “broad discretion to devise remedies

that effectuate the policies of the Act,” Sure-Tan, 467 U.S.

at 898–99, and its reading order “should stand unless it can

be shown that the order is a patent attempt to achieve ends

other than those which can fairly be said to effectuate the

policies of the Act.” Va. Elec., 319 U.S. at 540.

Contrary to CVMC’s characterization, a reading order is

not an extraordinary remedy but rather an “effective but

moderate way to let in a warming wind of information and,

more important, reassurance.” UNF W., Inc. v. NLRB,

844 F.3d 451, 463 (5th Cir. 2016) (emphasis added); U.S.

Serv. Indus. Inc., 319 N.L.R.B. 231, 232 (1995), enforced

107 F.3d 923 (D.C. Cir. 1997). The reading order here was

clearly warranted in light of CVMC’s several unfair labor

practices, including its retaliatory firing of a prominent

Union supporter. And given CVMC managers’ participation

in the serious and widespread interference with its

employees’ rights, the Board was well within its discretion

to require that a manager read the order aloud “so that

employees will fully perceive that [CVMC] and its

managers are bound by the requirements of the [NLRA].”

Federated Logistics & Operations, a Div. of Federated

Corp. Servs., Inc. v. NLRB, 400 F.3d 920, 930 (D.C. Cir.

2005) (citation omitted).

CVMC nonetheless argues that the Board cannot remedy

the chilling effect of CVMC’s illegal activity with a reading

order because doing so would humiliate management,

relying on a Ninth Circuit dissent and two decades-old

UNITED NURSES ASS’NS OF CAL. V. NLRB 41

cases 18 that have “clearly been superseded” by more recent

decisions that have “approved a public reading

requirement.” Conair Corp. v. NLRB, 721 F.2d 1355, 1386

n. 99 (D.C. Cir. 1983) (enforcing reading order); see J.P.

Stevens & Co. v. NLRB, 417 F.2d 533, 539 (5th Cir. 1969)

(same). Setting aside this misplaced reliance on irrelevant

cases, we fail to see why management’s sensibilities should

play any role in the determination of an appropriate remedy

to address its illegal conduct. After all, “part of the medicine

is the traditional acknowledgement that the employer has,

but will not again, deny employees’ rights.” J.P. Stevens,

417 F.2d at 540. Nothing in the NLRA protects an employer

from the embarrassment it might experience as a byproduct

of the Board’s remedy, as an employer’s feelings are

obviously “outweighed by the necessity of effectuating the

policies of the National Labor Relations Act.” Id. at 539.

Finally, CVMC faults the Board for not detailing its

reasons for approving the reading order and the ALJ for

omitting quotation marks when using language from a case.

But no authority requires a more detailed analysis than the

Board or the ALJ provided here. 19

18

Int’l Union of Electric, Radio & Machine Workers v. NLRB,

383 F.2d 230 (D.C. Cir. 1967); NLRB v. Laney & Duke Storage

Warehouse Co., 369 F.2d 859 (5th Cir. 1966).

19

We reject CVMC’s cursory argument that the Board’s order is

overbroad because it uses the term “employees” rather than RNs. Due

to the argument’s brevity and lack of citation to authority, it has been

waived. See W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 979 (9th

Cir. 2012).

42 UNITED NURSES ASS’NS OF CAL. V. NLRB

Remand is appropriate for the Board to address

an unfair labor practice that was litigated and

closely connected to the complaint

We turn now to the Union’s petition challenging the

portion of the ALJ’s decision that declined to address

whether CVMC’s written policy should be rescinded.

Despite finding that CVMC’s oral ban on employees

communicating with the media was an unfair labor practice,

the ALJ declined to address CVMC’s written policy to the

same effect on due process grounds because the written

policy was not mentioned in the complaint or pursued by the

General Counsel. In doing so, the ALJ erred by not

considering that, “where the issue is fully and fairly litigated

at the administrative hearing, the Board may find an unfair

labor practice even though no specific charge is made in the

original complaint.” George C. Foss Co. v. NLRB, 752 F.2d

1407, 1411 (9th Cir. 1985) (rejecting employer’s due process

argument); Hi-Tech Cable Corp., 318 N.L.R.B. 280, 280

(1995), enforced in relevant part, 128 F.3d 271, 277 n.20

(5th Cir. 1997); Pergament United Sales, 296 N.L.R.B. 333,

334 (1989), enforced 920 F.2d 130 (2d Cir. 1990).

CVMC’s written policy and oral ban on employees

communicating with the media are closely connected—

indeed, the ALJ described them as “related.” The written

policy barred employees from making statements to the

media “on behalf of . . . employees.” CVMC’s own witness,

Ruggio, testified that the written policy was the basis for

CVMC’s oral ban on employees communicating with the

media, stating that manager Lex Reddy told employees “not

to discuss hospital matters with the media[] because we do

have policies in relation to discussing hospital matters with

the media.” Moreover, the complaint alleges that Reddy’s

oral ban was an unfair labor practice. The Supreme Court

UNITED NURSES ASS’NS OF CAL. V. NLRB 43

and the Board have found no due process violation even

where a far more tenuous connection existed between an

unalleged unfair labor practice and the complaint. NLRB v.

Mackay Radio & Tel. Co., 304 U.S. 333, 350–51 (1938)

(rejecting due process challenge to unfair labor practice

finding for wrongful discharge, even though operative

complaint alleged failure to re-hire, because parties

presented evidence on the issue); Hi-Tech Cable Corp.,

318 N.L.R.B. at 280 (rejecting challenge to findings of

unfair labor practices committed by manager Jim French

because his statements to employees that they could “get

more without a union” had a “close connection” to

complaint’s allegation of unlawful promises of benefits by

another managerial official).

In addition, CVMC fully litigated the issue of whether

its ban on employees communicating with the media was an

unfair labor practice, and the ALJ found that it was. In the

course of this litigation, CVMC itself introduced the written

policy and its witness authenticated and testified about it.

On appeal, CVMC did not address the Union’s argument

seeking a ruling on the written policy. This non-opposition

from the only party who could claim prejudice makes any

due process concern ring especially hollow. Because due

process does not bar the relief the Union seeks—rescission

of the written policy—we grant the Union’s petition and

remand to the Board for resolution of that narrow issue at the

compliance stage of the proceeding. See SKS Die Casting &

Machining, Inc. v. NLRB, 941 F.2d 984, 990 (9th Cir. 1991);

Rea Trucking Co. v. NLRB, 439 F.2d 1065, 1066 (9th Cir.

1971) (“The Board has an obligation to decide material

issues which have been fairly tried by the parties even

though they have not been specifically pleaded.”).

44 UNITED NURSES ASS’NS OF CAL. V. NLRB

IV. Conclusion

In sum, we DENY CVMC’s petition, except as to the

incidental petitioning argument that we DISMISS for lack of

jurisdiction because CVMC failed to raise it below. We

ENFORCE the Board’s order. We also GRANT the Union’s

petition and remand for the Board to address rescission of

CVMC’s written policy during the compliance stage

consistent with this opinion. Costs shall be taxed against

CVMC.

DENIED IN PART, DISMISSED IN PART,

GRANTED AND REMANDED IN PART, and

ENFORCED.