                                                                           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                            NOT FOR PUBLICATION                             JUN 28 2011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.

                                         2
      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




                                          3
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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