                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 17 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



NEVADA SERVICE EMPLOYEES                         No. 08-70234
UNION, LOCAL 1107, SEIU,
                                                 NLRB No. 351 NLRB No. 88
             Petitioner,

  v.                                             MEMORANDUM *

NATIONAL LABOR RELATIONS
BOARD,

             Respondent,

VALLEY HOSPITAL MEDICAL
CENTER INC.,

             Real Party in Interest.



VALLEY HOSPITAL MEDICAL                          No. 08-70793
CENTER INC.,
                                                 NLRB No. 28-CA-21047
             Petitioner,

  v.

NATIONAL LABOR RELATIONS
BOARD,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
             Respondent.



NATIONAL LABOR RELATIONS                        No. 08-71242
BOARD,
                                                NLRB No. 28-CA-21047
             Petitioner,

  v.

VALLEY HOSPITAL MEDICAL
CENTER INC.,

             Respondent.




                    On Petitions for Review of an Order of the
                        National Labor Relations Board

                      Argued and Submitted October 7, 2009
                              Pasadena, California

Before: HALL, W. FLETCHER, and CLIFTON, Circuit Judges.

       Petitioners Nevada Service Employees Union, Local 1107 (the “Union”),

and Valley Hospital Medical Center, Inc. (“Valley Hospital”) seek review of a final

order of the respondent National Labor Relations Board (the “Board”), in which

the Board found that Valley Hospital violated sections 8(a)(1) and (3) of the

National Labor Relations Act (the “NLRA”) by discharging one of its employees,

registered nurse and union steward Joan Wells, for criticizing Valley Hospital’s


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nurse workloads. The Hospital contends that Nurse Wells’s complaints were not

protected by the NLRA, and the Union contends that the Board abused its

discretion by refusing to order rescission of Valley Hospital's Communication

Policy or to order electronic dissemination of the notice of violation.

      The Board cross-petitions for enforcement of its order.

      This Court has jurisdiction pursuant to 29 U.S.C. §§ 160(e) and (f). We

deny the petitions for review and grant the Board’s petition for enforcement.

                                          I.

      Nurse Wells was terminated by Valley Hospital because of three statements

she made regarding problems with staffing levels at Valley Hospital. The parties

do not dispute that the statements were related to an ongoing labor dispute.

      An employee’s statements are protected under section 7 of the NLRA if they

are related to an ongoing labor dispute and are not “so disloyal, reckless, or

maliciously untrue as to lose the Act’s protection.” Emarco, Inc., 284 N.L.R.B.

832, 833 (1987); See 29 U.S.C. § 157. Under section 8 of the NLRA, it is an unfair

labor practice for an employer “to interfere with, restrain, or coerce employees in

the exercise of rights guaranteed in [section 7],” 29 U.S.C. § 158(a)(1), or

discriminate in regard to any term or condition of employment to discourage

membership in a union. 29 U.S.C. § 158(a)(3). This court upholds a Board


                                          -3-
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).

         Substantial evidence supports the Board’s determination that Wells’s

statements regarding Valley Hospital staffing levels were not knowingly or

recklessly false, given her reasonable reliance on her own observations,

information from other nurses, and her reasonable inferences therefrom. Emarco,

Inc., 284 N.L.R.B. at 833-34. The Board also properly addressed whether Wells’s

statements amounted to unprotected disloyalty, and substantial evidence supports

its findings that they did not because: (1) there was an undisputed connection

between her statements and the ongoing labor dispute; (2) her statements called for

improved working conditions at Valley Hospital; (3) the statements were not

strategically timed to harm Valley Hospital during a critical moment in its

business; (4) Nurse Wells did not breach important confidences; and (5) there was

no obvious intent to harm Valley Hospital. See NLRB v. Local Union No. 1229,

Int'l Bhd. of Elec. Workers (Jefferson Standard), 346 U.S. 464, 471, 475–78

(1953); Sierra Publ’g Co. v. NLRB, 889 F.2d 210, 217 (9th Cir. 1989).

         This case is distinguishable from cases relied upon by Valley Hospital. See

Endicott Interconnect Techs., Inc. v. NLRB, 453 F.3d 532, 537 (D.C. Cir. 2006)


                                          -4-
(denying enforcement where Board failed to address whether employee’s

statements were “detrimentally disloyal”); St. Luke’s Episcopal-Presbyterian

Hosps., Inc. v. NLRB, 268 F.3d 575, 579-80 (8th Cir. 2001) (denying enforcement

where Board failed to address whether employee “falsely and publicly disparage[d]

her employer or its products and services”). Because substantial evidence supports

the Board’s explicit findings that Wells’s statements were not disloyal, reckless or

maliciously false, the Board properly concluded that Nurse Wells’s discharge

violated the NLRA.

                                          II.

      This court reviews the Board’s choice of remedy for an abuse of discretion.

Sever, 231 F.3d at 1165. The lawfulness of Valley Hospital’s Communications

Policy was not fully litigated before the Administrative Law Judge or the Board,

and therefore the Board did not abuse its discretion in refusing to order its

rescission. See Hi-Tech Cable Corp., 318 N.L.R.B. 280, 280 (1995). The Board

also did not abuse its discretion in refusing to order Valley Hospital to individually

email its employees notice of the NLRA violation, because the record does not

speak to the customary nature of Valley Hospital’s email communication to its

employees. See Nordstrom, Inc. & Unite Here, 347 N.L.R.B. 294, 294 (2006)

(denying request for notice to be posted to employer’s intranet website in absence


                                          -5-
of evidence that employer customarily used the intranet to communicate with

employees).

                                       III.

      For these reasons, we DENY Valley Hospital’s and the Union’s petitions for

review and GRANT the Board’s petition for enforcement.




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