FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEIU, UNITED HEALTHCARE 

WORKERS-WEST,

Petitioner,

v. No. 07-73028

NATIONAL LABOR RELATIONS  NLRB No. BOARD,

20-CG-65 Respondent,

CALIFORNIA PACIFIC MEDICAL

CENTER,

Intervenor. 

NATIONAL LABOR RELATIONS 

BOARD,

Petitioner,

CALIFORNIA PACIFIC MEDICAL No. 07-73673

CENTER, NLRB No.

Intervenor,  20-CG65

v. OPINION

SEIU, UNITED HEALTHCARE

WORKERS-WEST,

Respondent. 

On Petition for Review of an Order of the

National Labor Relations Board

Argued and Submitted

February 13, 2009—San Francisco, California

Filed August 3, 2009

10089
Before: Alfred T. Goodwin, Mary M. Schroeder and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Schroeder

10090 SEIU v. NLRB
COUNSEL

David Rosenfeld, Alameda, California, for the petitionerrespondent.

Julie Broido, Washington, DC, for the respondent-petitioner.

Christopher Scanlan, San Francisco, California, for the intervenor.

OPINION

SCHROEDER, Circuit Judge:

This union petition for review and National Labor Relations Board (“NLRB”) cross-petition for enforcement concern

10092 SEIU v. NLRB
Section 8(g) of the National Labor Relations Act (“NLRA”),

29 U.S.C. § 158(g). Section 8(g) applies only to hospitals and

requires a union to give ten days’ notice before beginning any

“concerted refusal to work.” In this case, Service Employees

International Union, United Healthcare Workers-West (“the

Union”) gave only four days’ notice before its members collectively declined to work overtime, as the Union had urged

them to do. The Union nevertheless contends it was relieved

of the ten-day statutory notice requirement because its collective bargaining agreement with the hospital provided that the

hospital could not force an individual employee to work overtime.

Over a dissent, the NLRB held that an individual’s exercise

of the right to decline particular overtime work is not the

same as a collective refusal to do any overtime work, and that

the Union violated the statutory ten-day notice requirement.

“The Chevron doctrine requires that this court defer to the

NLRB’s interpretation of the NLRA if its interpretation is

rational and consistent with the statute.” UFCW, Local 1036

v. NLRB, 307 F.3d 760, 766 (9th Cir. 2002). The NLRB’s

interpretation is entitled to deference, and we affirm its order.

BACKGROUND

The Union represents a bargaining unit of housekeepers

and linen aides employed by California Pacific Medical Center (“the Hospital”). The employees are in the Environmental

Services departments of the Hospital’s Davies and Pacific

campuses. In a series of collective bargaining agreements

(“CBA”) negotiated over the years, the parties have agreed

that the Hospital cannot assign mandatory overtime, except

during emergencies. The relevant CBA’s overtime provision

was as follows:

The Medical Center shall not assign overtime unless

one of the following conditions exist: there is a

disaster or emergency declared by a federal, state,

SEIU v. NLRB 10093
and/or local agency or a member of the Medical

Center’s Senior Management team has determined

that an emergency exists. For the purpose of this section, emergency is defined as an unexpected situation or sudden occurrence of a serious and urgent

nature that demands immediate action. Prior to

assigning mandatory overtime, the Medical Center

will first seek volunteers for additional work. In situations where mandatory overtime is to occur, the

Medical Center will give advance notice, as permitted by operational circumstances, to the employee(s)

who will be mandated to stay.

Because the Hospital does require significant numbers of

overtime shifts to meet its staffing requirements, the Hospital

relies on employees in the units being willing to volunteer.

The Hospital was always able to secure sufficient volunteers

before May 2006. The Davies campus typically required sixteen hours of overtime during each day shift and twenty-four

hours of overtime during each evening shift, from Friday to

Monday. Overtime needs during the weekdays, Tuesday to

Thursday, were less regular. The Pacific campus required up

to eight full overtime shifts each day. 

In May 2006, the Hospital proposed to change its methods

of processing linens in a manner that the Union contended

violated the provision in the CBA prohibiting subcontracting

of employee work. In a petition signed by more than 100

employees, and presented to the managers at the Davies and

Pacific campuses, the Union protested the proposal and called

for a one week long refusal to do overtime work: 

We the undersigned [Union] members in Environmental Services hereby protest the proposal of [Hospital] management to sub-contract our work in the

linen room out to the West Bay Distribution center.

This is a direct violation of the no sub-contracting

clause of our contract. By signing this petition we

10094 SEIU v. NLRB
hereby authorize our shop stewards to call for rolling

one week, no overtime no extra shift policy amongst

[Union] members in the Environmental Service

department on an as needed basis. We commit to

one-another that we will honor this commitment to

action and stand strong in our fight with [the Hospital] to force them to respect and honor our contract.

The petition was circulated to the manager of the Davies campus on June 1, 2006, and to the manager of the Pacific campus

on June 2, 2006. This was the first notice the Hospital had of

a possible cessation of work.

On Monday, June 5, four days after receiving the Union’s

petition, the manager of the Davies campus sought to fill 16

hours of overtime, but could not find a single volunteer from

the seven employees she called out of the ten employees who

were eligible. She again called several employees each day

from Tuesday, June 6 through Thursday, June 8, but all

refused. The manager of the Pacific campus called approximately ninety eligible employees on Monday, June 5, and

could not get a volunteer. He was also unable to fill overtime

slots on June 6 or June 7. The refusals ceased on Monday,

June 12, when employees at both campuses began accepting

overtime. 

The Union supported and advertised the refusals to perform

overtime. The Union’s newsletter, published during the week

of the refusals, described the action as follows:

EVS workers at all three [Hospital] campuses are

standing up to management’s attempt to subcontract

the jobs of our coworkers in the Linen Room. Last

week a super majority of [Union] members . . .

signed a petition demanding [the Hospital] respect

our contract and halt its plans to subcontract the

Linen Room . . . . In addition, the petition called for

one week of no overtime, no extra shifts for [Union]

SEIU v. NLRB 10095
members in the EVS department. Starting on June

5th, the no overtime, no extra shift policy has

exposed the short staffing that management has created in the EVS department. It is now crystal clear

that [the Hospital] needs to hire more EVS staff, not

eliminate jobs.

In response, management has attempted to force

[Union] members to do extra work to cover the shifts

management has failed to fill. . . . [O]ur contract

clearly prohibits this unless there is an emergency

situation . . . . If management attempts to force you

to do extra work during your shift contact your steward immediately!

The Hospital filed unfair labor practice charges on June 13,

2006, claiming that the Union violated Section 8(g) by failing

to provide timely notice of its intention to engage in a concerted refusal to work. The ALJ issued a decision finding a

violation of Section 8(g) and recommended that the NLRB

issue an order requiring the Union to cease and desist from

any concerted refusals to work overtime. The order provided:

Cease and desist from engaging in any strike, picketing, or other concerted refusal to work; including a

concerted refusal to volunteer for overtime work, at

the premises of [the Hospital], or any other health

care institution, without timely notifying, in writing,

any such health care institution and the Federal

Mediation and Conciliation Service, not less than 10

days prior to such action, of that intention.

On July 27, 2007, the NLRB, over the dissent of one member,

affirmed the ALJ’s findings of fact and conclusions of law

and entered the order the Board now seeks to enforce. See

SEIU United Healthcare Workers-West, 350 N.L.R.B. 284,

286 (2007).

10096 SEIU v. NLRB
ANALYSIS

[1] Section 8(g) of the NLRA was enacted as part of a

series of statutory provisions intended to respond to special

issues raised by labor organizations in a hospital setting.

Other relevant NLRA provisions enacted at the same time

included the elimination of an exception for hospitals from

the statutory definition of “employer,” 29 U.S.C. § 152(2),

and the addition of special collective bargaining provisions

for employees of health care institutions, id. § 158(d). Section

8(g) of the NLRA provides, in relevant part, as follows:

A labor organization before engaging in any strike,

picketing, or other concerted refusal to work at any

health care institution shall, not less than ten days

prior to such action, notify the institution in writing

and the Federal Mediation and Conciliation Service

of that intention . . . . The notice shall state the date

and time that such action will commence. The

notice, once given, may be extended by the written

agreement of both parties.

29 U.S.C. § 158(g). When Congress enacted Section 8(g) in

1974, its stated goal was to balance two dominant considerations: the desire to bring employees of non-profit hospitals

within the protection of the Act, and the need to protect the

public interest by “insur[ing] the continuity of health care to

the community and the care and well being of patients by providing for a statutory advance notice of any anticipated strike

or picketing.” Kapiolani Hosp. v. NLRB, 581 F.2d 230, 233

(9th Cir. 1978) (quoting Senate Comm. on Labor and Public

Welfare, S. Rep. 93-766, at 3 (1974), reprinted in 1974

U.S.C.C.A.N. 3946, 3949). The ten-day notice requirement

was intended to prevent disruption of patient care by giving

hospitals time to plan ahead for strikes, pickets, or other work

stoppages. See NLRB v. Stationary Eng’rs, Local 39, 746 F.2d

530, 533 (9th Cir. 1984).

SEIU v. NLRB 10097
[2] In this case, the parties’ CBA prohibits the Hospital

from assigning mandatory overtime to Union employees,

except during emergencies. The most obvious reason for

inclusion of this provision was to give individual employees

flexibility in choosing to accept or reject the Hospital’s offers

of overtime shifts, but it did not specifically waive the Hospital’s right to ten days’ notice of collective refusals to work.

[3] We owe the NLRB great deference in its interpretation

of the NLRA, NLRB v. Calkins, 187 F.3d 1080, 1085 (9th Cir.

1999), and will not overturn the agency unless “there are

compelling indications that it is wrong,” Stationary Eng’rs,

746 F.2d at 532 (citation omitted). The Board majority held

that the Union’s actions amounted to a “concerted refusal to

work” within the meaning of Section 8(g), and that the Union

therefore violated the statute by failing to give the required

ten days’ notice of its planned work stoppage. The Board reasoned that the work stoppage in this case was subject to Section 8(g) because it was orchestrated by the Union as a

collective means of accomplishing a common goal: pressuring

the Hospital to change a policy the Union perceived as being

unfavorable to its members. The Board noted that its decision

furthered the public protection purpose underlying Section

8(g)’s notice requirement.

[4] The Union’s principal argument, one supported by the

dissenting Board member, is that the collective refusal to

work overtime is authorized by the CBA provision stating that

the employer cannot force an individual to work overtime.

The Union contends that because the employer has agreed

that each employee can decline to perform overtime on an

individual basis, the Union can, in accordance with the contract, direct its members to decline to perform work on a collective basis without engaging in any “refusal” to work within

the meaning of Section 8(g). We agree with the Union that

there would not necessarily be a concerted refusal to work in

the event all employees, acting independently, were unwilling

to volunteer for overtime. Here, however, the members did

10098 SEIU v. NLRB
not act on an individual basis. Rather, their action was “concerted” because it was orchestrated by the Union. The NLRB

appropriately ruled that the employees’ decisions were “concerted” under Section 8(g). 

[5] The leading NLRB decision interpreting Section 8(g) is

N.Y. State Nurses Ass’n (Mt. Sinai Hosp.), 334 N.L.R.B. 798

(2001). Mt. Sinai Hospital held that a union was required to

give ten days’ notice under circumstances remarkably similar

to those before us now. In that case, the union requested that

nurses refuse to volunteer for overtime and refuse to perform

overtime assigned to them, calling upon them to exercise contractual rights to refuse to volunteer. The Board held that the

Union called for a “concerted refusal to work,” requiring ten

days’ notice:

To be sure, Section 8(g) does not prevent employees

from exercising their rights under the collectivebargaining agreement. It does, however, in the

absence of the required written 10-day notice, prohibit a union from inducing employees to exercise

their contractual rights as part of the union’s effort

to pressure an employer to change terms and conditions of employment. If the union is going to call for

a strike or concerted refusal to work, the employer

is entitled to the appropriate statutory notice.

Id. at 801.

[6] The Union, citing the dissent in Mt. Sinai Hospital, 334

N.L.R.B. at 804 (Liebman, dissenting), argues that an

employee’s decision to decline overtime should only be considered a “refusal to work” when the overtime is mandatory.

We need not decide whether such an interpretation of the

phrase would also be permissible, were the Board to advance

it, because we defer to the broader interpretation actually

adopted by the Board, which is both “rational and consistent

with the statute.” UFCW, 307 F.3d at 766. 

SEIU v. NLRB 10099
[7] In this case, the Union itself called for the overtime

work stoppage. It did not even purport to invoke the provision

of the contract allowing for overtime refusal on an individual

basis. Under the NLRB’s precedent interpreting the phrase,

this was a “concerted refusal to work” for which Section 8(g)

requires notice.

Our court, interpreting Section 8(g), has stressed the provision’s applicability to concerted action. See Kapiolani Hosp.,

581 F.2d at 234. In that case, an employer fired an employee

who was not a member of the union, but who had individually

decided that she would not cross the union’s picket line. We

enforced the Board’s order finding the employer guilty of an

unfair labor practice. We held that the unrepresented

employee was not required to give the employer notice of her

refusal because the statute applies only to concerted refusals

to work and requires only unions to give the ten days’ notice.

Id.

[8] That holding supports the result in this case. Although

the individual decision to refuse to cross the picket line, or in

this case to refuse overtime, does not require notice because

of the absence of union action, notice is required when a

refusal to work is the direct result of union action against a

healthcare institution. Other circuits have reached similar conclusions. See, e.g., Bry-Fern Care Ctr., Inc. v. NLRB, 21 F.3d

706, 711 (6th Cir. 1994); NLRB v. Wash. Heights-West

Harlem-Inwood Mental Health Council, Inc., 897 F.2d 1238,

1246 (2d Cir. 1990); E. Chicago Rehab. Ctr., Inc. v. NLRB,

710 F.2d 397, 402-03 (7th Cir. 1983). 

[9] The Union’s secondary argument fares no better. The

Union contends that under Alexandria Clinic, P.A., 339

N.L.R.B. 1262, 1263-65 (2003), enforced by 406 F.3d 1020

(8th Cir. 2005), it cannot give effective notice of a concerted

refusal to work without knowing, at the time it gives the

notice, whether the Hospital will need overtime on a specified

date ten days in the future. In Alexandria Clinic, however, the

10100 SEIU v. NLRB
union itself chose to delay commencement of its work stoppage beyond the date initially specified in the notice. The

NLRB held that this rendered the union’s original notice

defective and that the union should have issued a new, corrected notice and waited an additional ten days so that the

hospital could appropriately prepare. Here, if the Union had

given notice ten days in advance of the date when employees

planned to begin declining offered overtime, and had followed through on that plan, the notice would not have been

rendered defective no matter how the Hospital reacted, even

if the Hospital decided not to offer overtime on the specified

date. Despite any uncertainty surrounding the Hospital’s

future decision, the Union was able to give effective notice of

the day on which it planned for employees to commence

refusing any overtime that might be offered. The NLRB’s

conclusion that the Union’s failure to do so violated Section

8(g) was “rational and consistent with the statute,” UFCW,

307 F.3d at 766, and its purpose of ensuring uninterrupted

patient care in spite of upcoming work disruptions. See

Kapiolani Hosp., 581 F.2d at 233. 

Petition for Enforcement GRANTED; Cross-Petition for

Review DENIED.

SEIU v. NLRB 10101