People For the American Way

Trump Judge Would Have Reversed NLRB Recognition of Union Election: Confirmed Judges, Confirmed Fears

News and Analysis
Trump Judge Would Have Reversed NLRB Recognition of Union Election: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

After a unit of nurses voted to unionize, the California hospital that employed them challenged the legitimacy of the election before the National Labor Relations Board (NLRB). The NLRB found that the hospital had not made the case for an evidentiary hearing to look for legal violations, and it certified the new union in a decision that was upheld by the Ninth Circuit. But Ninth Circuit Trump judge Patrick Bumatay would have ruled against the employees and sent the case back to the NLRB so the hospital could continue its challenge to the union election. The May 2020 case is East Valley Glendora Hospital v. NLRB.

Among other claims, the hospital alleged that a charge nurse in a supervisory position served as an election observer, in violation of NLRB rules.  But as the majority opinion noted, the employer had waived this objection under NLRB precedent: In a stipulated election agreement, the hospital had objected to the inclusion of charge nurses in the bargaining unit, but said nothing about charge nurses as election observers. Bumatay’s dissent addressed the applicability of the waiver rule even though, as the majority stated, the hospital “did not present that argument to the NLRB or to the court.”

Even if the employer had preserved the objection, the majority explained that the hospital had failed to “identify the supervisor, list facts supporting the individual’s supervisory status, or provide any specificity to the facts underlying the objection.” As a result, it was too “conclusory” and “vague” to warrant an evidentiary hearing.