Arbah Hotel Corp v. NLRB ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 20-1025 & 20-1102
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ARBAH HOTEL CORP., d/b/a Meadowlands View Hotel,
Petitioner in No. 20-1025
v.
NATIONAL LABOR RELATIONS BOARD,
Petitioner in No. 20-1102
_______________
On Petition for Review and Enforcement of a Decision and Order
from the National Labor Relations Board
(NLRB Docket Nos. 22-CA-197658, 22-CA-203130, 22-CA-205317,
22-CA-205422, 22-CA-209158 & 22-CA-212705)
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on November 19, 2020
Before: AMBRO, BIBAS, and Roth, Circuit Judges
(Filed: February 16, 2021)
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OPINION*
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BIBAS, Circuit Judge.
Employers may not make major decisions about unionized employees on their own.
Instead, they must work with unions in good faith to solve problems. Arbah Hotel Corp.,
though, repeatedly bypassed its union. It fired a longtime maid for complaining to the
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
union. It banned a union representative from the Hotel without talking to the union. And it
let an old health-insurance plan lapse before ensuring that a new one took effect. All three
actions violated the National Labor Relations Act. So we will deny the Hotel’s petition for
review and grant the Board’s application to enforce its order.
I. BACKGROUND
A. Conflict with the Union
Arbah runs a hotel in northern New Jersey. The New York Hotel and Motel Trades
Council is a union that represents many of its employees, including its maids, cooks, and
maintenance workers.
The Hotel and the Union negotiated a collective-bargaining agreement in 2011. That
contract expired in 2015. For the next two years, they negotiated but never settled on a new
agreement. Meanwhile, the employees kept working under the expired contract. During
those two years, the Hotel and the Union had three major disputes. We accept the Admin-
istrative Law Judge’s (ALJ) factual findings about those disputes as conclusive as long as
the findings are supported by substantial evidence:
1. The firing of Marie Dufort. Hotel maid Marie Dufort went to the Union for help
several times. Once, she found drugs in one of the rooms and reported it. A manager
scolded her for entering the room, so she went to the Union.
Another time, the Hotel called Dufort in for work. But it made a mistake. It did not need
her that day, so it sent her home without pay. Upset, she complained to the Hotel and the
Union.
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Finally, a supervisor told Dufort to change a stained comforter. Dufort claims she did;
the Hotel says she flipped it over instead. The Hotel’s vice president disciplined her, issuing
two warnings. He was planning not to fire her, but to “give her another chance.” AR 201.
But after Dufort complained to the Union, upsetting the vice president, he fired her.
2. The ban of George Padilla. Union representative George Padilla regularly visited the
Hotel to check on employees. On one visit, he and a Hotel employee got into a heated
argument. The next day, the Hotel sent the Union a letter, banning him from the Hotel. But
Padilla did return. And nearly a year later, the Hotel sent another letter again banning him
and threatening to call the police if he returned. So Padilla did not return after that, but had
to help employees remotely.
3. The lapse in health insurance. Each month, the Hotel paid into a health-insurance
fund for its employees. Then, the Hotel repeatedly missed its payments. Each time, the
Fund told the Hotel that unless it paid up, the Fund would cancel the health insurance. For
several months, it made those payments late. Then, the Hotel stopped making payments
and decided to get coverage through a new insurer. So the Fund cancelled its coverage. But
the Hotel did not finish setting up the new health insurance for seven more months. During
that time, the employees went without insurance.
B. The Board’s decision and this petition for review
The Union filed charges for these and other disputes with the National Labor Relations
Board. The ALJ sustained them all. She found that the Hotel had violated the National
Labor Relations Act by firing Dufort, banning Padilla, and failing to make health-insurance
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payments to the Fund. She also found other violations. The Board affirmed, adopting the
ALJ’s findings.
So the Hotel turns to us. On this petition for review, it challenges the Board’s decisions
on only the three disputes above. The Board seeks to enforce its order. We have jurisdiction
under 29 U.S.C. § 160(e)–(f). The Board did not make any legal errors in its decision. And
substantial evidence supports the ALJ’s findings. So we will deny Arbah’s petition, grant
the Board’s cross-application, and enforce the Board’s whole order.
II. THE HOTEL FIRED DUFORT FOR COMPLAINING TO THE UNION
To start, the Board found that Dufort engaged in protected activity and the Hotel fired
her for it. We must accept that finding if it is “supported by substantial evidence on the
record considered as a whole.” § 160(e)–(f). It is.
Dufort complained to the Union about being called into work without pay, about being
punished for flipping a comforter, and about being chastised for going into a hotel room
that had drugs in it. Those complaints are protected activity. See Champion Parts Rebuild-
ers, Inc., Ne. Div. v. NLRB, 717 F.2d 845, 849 (3d Cir. 1983). An employer cannot fire a
union employee for protected activity. 29 U.S.C. §§ 157, 158(a)(1), (a)(3). The employer
is liable even if the protected activity is not the employer’s sole reason for firing her, but
just a substantial or motivating factor. 1621 Route 22 W. Operating Co., LLC v. NLRB, 825
F.3d 128, 145–46 (3d Cir. 2016). To counter, the employer must show that it would have
fired the employee even without her union activity. Id. The Hotel has not done so.
On the contrary, Dufort’s protected activity evidently motivated her firing. For one, the
Hotel knew of her complaints. NLRB v. Omnitest Inspection Serv., Inc., 937 F.2d 112, 122
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(3d Cir. 1991). The Hotel’s vice president was upset by them. He criticized them as costing
“a lot of time and money.” AR 58–59. And he warned her that “when [the] Union comes,
things get ugly.” AR 296.
The timing of Dufort’s firing is also telling. Omnitest, 937 F.2d at 122. The Hotel fired
her shortly after she complained to the Union about being disciplined for the stained com-
forter. At first, the vice president wanted to give her “another chance.” AR 201. But then
he grew “very upset” and fired her because, as a coworker related, “she had called the
Union.” AR 169.
The Hotel claims that it had good cause to fire Dufort, pointing to her two disciplinary
violations. But the Board reasonably found these were a pretext. The Hotel had never be-
fore disciplined a maid for flipping a stained comforter. Indeed, a supervisor had even en-
couraged it. The Hotel had fired only one other Union employee, and that was for stealing
from a guest’s room. Yet it singled out Dufort for following a common housekeeping prac-
tice. That points to pretext. New Orleans Cold Storage & Warehouse Co. v. NLRB, 201
F.3d 592, 601 (5th Cir. 2000).
In short, substantial evidence supports the Board’s decision that the Hotel fired Dufort
for complaining to the Union.
III. THE HOTEL IMPROPERLY BARRED PADILLA FROM VISITING
Next, the Board decided that the Hotel violated the Act by unilaterally banning Padilla
from its premises. Employers must let union representatives visit. After all, a union needs
to reach its members, even if the parties are between collective-bargaining agreements.
NLRB v. Unbelievable, Inc., 71 F.3d 1434, 1438 (9th Cir. 1995). In the collective-
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bargaining agreement, the parties agreed that the Hotel had to admit “[o]fficial representa-
tives of the Union” to let them “observe the working conditions” at the Hotel. AR 819. Yet
the Hotel barred Padilla. The Board decided that it should not have. We agree.
A. The Hotel has not shown that it was impossible to work with Padilla
The Hotel had no basis to ban Padilla. The Hotel claims that Padilla’s “hostile conduct”
made it “impractical” to bargain with him. Pet’r’s Br. 62–63. But unionized employees get
to pick their representatives. 29 U.S.C. § 157. The employer must bargain with, and admit,
those representatives. NLRB v. Int’l Ladies’ Garment Workers’ Union, AFL-CIO, 274 F.2d
376, 378 (3d Cir. 1960). There is an exception, though, if the representative breeds so much
“ill will that good faith bargaining is impossible.” Int’l Union, UAW v. NLRB, 670 F.2d
663, 664 (6th Cir. 1982).
The Hotel has not shown that. The Hotel claims that Padilla got into a “fight” with an
employee. Pet’r’s Br. 16. But the record suggests otherwise: One day, he entered a meeting
with management to talk about health insurance. Padilla and hotel employees kept inter-
rupting one another. Padilla cursed at an employee in Spanish and asked him to stop inter-
rupting him. That angered the employee. To avoid a fight, others stepped in to separate the
two. The incident was hardly ideal. But the witnesses mostly agreed that the employee, not
Padilla, escalated the dispute. And a physical fight never broke out. This heated argument
is not enough to show so much “ill will” that it was “impossible” to work with him. Int’l
Union, UAW, 670 F.2d at 664.
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B. The Hotel did not negotiate with the Union before banning Padilla
If an employer has a problem with a union representative, it cannot simply bar him.
Instead, it must first discuss the problem with the union and try to work it out. Unbelieva-
ble, 71 F.3d at 1438. Yet both times the Hotel banned Padilla unilaterally.
C. The Settlement Agreement did not let the Hotel ban Padilla permanently
The Hotel claims, however, that it had the contractual right to exclude Padilla. In re-
sponse to its first ban, the Union filed a charge with the Board. To settle that charge and
others, the parties entered a settlement agreement: “The Employer will not bar any Union
representatives from the Hotel nor interfere with their access pursuant to the expired [col-
lective-bargaining agreement]. Prior to Mr. Padilla returning to the Hotel, the parties shall
meet, provided such meeting must take place before February 15, 2017.” AR 845–47. That
meeting never happened. So the Hotel claims that Padilla could not return to the hotel—
ever.
Not so. We interpret the settlement agreement de novo. Engelhard Corp. v. NLRB, 437
F.3d 374, 377 (3d Cir. 2006). The agreement set a deadline for a meeting, not a condition
for Padilla’s return. That is what “provided” means. Provided (def. 1), Black’s Law Dic-
tionary (11th ed. 2019). Because the meeting did not happen by February 15, the parties
no longer had to meet, and Padilla could return. And in the preceding sentence of the agree-
ment, the Hotel promised not to bar any Union representatives. We will not read the second
sentence to swallow the first. Plus, the parties struck the settlement agreement to resolve
the grievance over the first time the Hotel banned Padilla. As the Board found, it is “entirely
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implausible” that the settlement of this charge would let the Hotel “ban Padilla permanently
from its facility by simply refusing to meet with the Union.” AR 1061 n.2.
IV. THE HOTEL HAD NO RIGHT TO CANCEL ITS EMPLOYEES’
HEALTH INSURANCE WITHOUT A REPLACEMENT
Finally, the Board rightly found that the Hotel violated the collective-bargaining agree-
ment by unilaterally cancelling its employees’ health insurance. An employer must bargain
in good faith over employment terms, including health insurance. 29 U.S.C.
§ 158(a)(5), (d). Once the terms are set, the employer may not change them without nego-
tiating with the union. NLRB v. Katz, 369 U.S. 736, 743, 747 (1962).
The Hotel had a duty to provide health insurance. In the collective-bargaining agree-
ment, it promised to “pay the entire cost of health coverage for each eligible employee” to
the Fund. AR 934. Even after the agreement expired, that duty continued. Litton Fin. Print-
ing Div. v. NLRB, 501 U.S. 190, 198 (1991). The Hotel breached that duty by halting its
contributions, causing its employees to lose coverage.
In defense, the Hotel argues that it had the right, thanks to a side agreement, to unilat-
erally “change providers, provided such alternative maintains the same if not better level
of current benefits.” AR 960. But the Hotel did not “change” plans while maintaining “the
same if not better level of current benefits.” It began the process but did not finish the
switch in time. It failed to submit its employees’ information or pay for the new plan before
the old one lapsed.
Faced with this failure, the Hotel blames the Union for “intentional[ly] refus[ing]” to
give it the information it needed to set up the new insurance. Pet’r’s Reply Br. 4. But the
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Hotel could and did get that information directly from its employees. Even if the Union
acted in bad faith, the Hotel still had to uphold its end of the bargain. Its remedy was to
bring charges against the Union, as it did, not to let its employees’ insurance lapse. See
Compl., Arbah Hotel Corp. v. N.Y. Hotel & Motel Trades Council, AFL-CIO, No. 2:17-cv-
07701 (D.N.J. Sept. 28, 2017). The Board properly held the Hotel liable for letting its em-
ployees’ insurance lapse.
V. THE BOARD IS ENTITLED TO ENFORCE ITS ORDER
Finally, the Hotel adds one more objection for the first time. It challenges the Board’s
remedy as “overbroad.” Pet’r’s Reply Br. 11. The Board ordered the Hotel to make seven
months’ worth of delayed payments to the Fund, even though the Fund did not insure the
employees for those seven months. The Hotel might be right that it should not pay the Fund
for coverage that it did not provide. But it did not object before the Board (or even in its
opening brief). We cannot hear this brand-new objection because there are no “extraordi-
nary circumstances” to justify the delay. 29 U.S.C. § 160(e). Instead, it will have to chal-
lenge the remedy in a later compliance proceeding. NLRB v. Saint-Gobain Abrasives, Inc.,
426 F.3d 455, 460 (1st Cir. 2005).
The Hotel did not object to the rest of the Board’s order here or below, so we will
summarily enforce those parts as well. NLRB v. FES, a Div. of Thermo Power, 301 F.3d
83, 88–89, 93 n.4, 95 n.6, 96 (3d Cir. 2002).
* * * * *
The Hotel fired a maid for complaining to the Union, banned a Union representative
from its premises, and left its employees without bargained-for health insurance for seven
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months. By doing so, it violated the Act. So we will deny the Hotel’s petition for review,
grant the Board’s cross-application for enforcement, and enforce the whole order.
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