Unite Here! Local 878, Afl-Cio v. NLRB ( 2017 )

FILED
NOT FOR PUBLICATION
DEC 28 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITE HERE! LOCAL 878, AFL-CIO, No. 15-71924
Petitioner, NLRB No. 19-CA-032148
v.
MEMORANDUM*
NATIONAL LABOR RELATIONS
BOARD,
Respondent.
REMINGTON LODGING & No. 15-72563
HOSPITALITY, LLC, DBA Sheraton
Anchorage, NLRB No. 19-CA-032148
Petitioner,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
NATIONAL LABOR RELATIONS No. 15-73259
BOARD,
NLRB No. 19-CA-032148
Petitioner,
v.
REMINGTON LODGING &
HOSPITALITY, LLC, DBA Sheraton
Anchorage,
Respondent.
On Petition for Review of an Order of the
National Labor Relations Board
Submitted December 4, 2017**
Seattle, Washington
Before: HAWKINS and CHRISTEN, Circuit Judges, and KOBAYASHI,***
District Judge.
The National Labor Relations Board applies for enforcement of its order
finding that Remington Lodging and Hospitality, LLC, committed sundry unfair
labor practices. Remington and Unite Here! Local 878 (the Union) petition for
review of the Board’s order. We have jurisdiction under 29 U.S.C. § 160(e) and
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
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(f). We deny the petitions for review and grant the Board’s application for
enforcement.
We enforce the Board’s order if the Board correctly applied the law and its
factual findings are supported by substantial evidence. Local Joint Exec. Bd. of
Las Vegas v. NLRB, 515 F.3d 942, 945 (9th Cir. 2008). We defer to the Board’s
interpretation of the National Labor Relations Act (NLRA) if it is “rational and
consistent with the statute,” and we may not displace the Board’s choice between
two fairly conflicting views of the facts. Id. (internal quotation marks omitted).
We enforce the unchallenged portions of the Board’s order. See Diamond Walnut
Growers, Inc. v. NLRB, 53 F.3d 1085, 1087 (9th Cir. 1995).
1. Substantial evidence supports the Board’s determination that the
Federal Mediation and Conciliation Service (FMCS) did not receive timely notice
of the parties’ dispute before Remington unilaterally implemented changes in
October 2009. Although Remington could have relied on the Union’s notice to
FMCS, see NLRB v. Mar-Len Cabinets, Inc., 659 F.2d 995, 998 (9th Cir. 1981)
(per curiam), the record does not indicate when such notice was filed, and
Remington’s inference-based arguments do not establish otherwise.
2. Substantial evidence supports the Board’s finding that the parties
broke their impasse in March 2010, and the Board did not misapply the law when it
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reached that conclusion. The Board “evaluate[s] impasse issues with a special
expertise gained by long experience.” Walnut Creek Honda Assocs. 2, Inc. v.
NLRB, 89 F.3d 645, 649 (9th Cir. 1996). Here, the Board found that the parties’
March 2010 proposals created a possibility of fruitful future discussions in part
because each party came to the table with a proposal on health care—the critical
issue—that differed meaningfully from its position in the fall of 2009. Remington
presents an alternative view of the facts, but we defer to the Board in light of its
special expertise in this arena. See id.
The Board did not misapply the law by citing to Whitesell Corp., 352
N.L.R.B. 1196 (2008), and CJC Holdings, Inc., 320 N.L.R.B. 1041 (1996). The
Board correctly considered whether the parties’ March 2010 proposals were
“significant enough to warrant further negotiation,” and its citation to two cases
about when impasse is reached (rather than broken) does not undercut its analysis.
Finally, Remington’s suggestion that the Union avoided bargaining in March 2010
is unavailing. The Board found that the Union did not intend to end negotiations in
March 2010, and substantial evidence supports that finding despite Remington’s
contrary interpretation of the facts.
3. The Board’s conclusion that the areas under the porte cocheres at the
hotel were “non-work areas” based on Santa Fe Hotel, Inc., 331 N.L.R.B. 723
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(2000), is rational and consistent with the NLRA. The Board is the entity tasked
with striking an appropriate balance between the dictates of the NLRA and the
unique characteristic of specific industries. See Beth Israel Hosp. v. NLRB, 437
U.S. 483, 500–01 (1978). We cannot say the balance it struck here was
impermissible.
4. The conclusive presumption from SFO Good–Nite Inn, 357 N.LR.B.
79 (2011), is also rational and consistent with the NLRA. Although a conclusive
presumption may have a dramatic effect on a given case, it protects employee free
choice by serving a deterrent purpose and recognizing the inherent unreliability of
after-the-fact employee testimony. See id. at 82–83.
5. Section 10(e) of the NLRA precludes us from reviewing the Union’s
sole argument. See 29 U.S.C. § 160(e). When, as here, the Board sua sponte
amends an ALJ’s recommended remedy, the party seeking judicial review must
move for reconsideration before the Board to preserve the issue. NLRB v. Legacy
Health Sys., 662 F.3d 1124, 1127 (9th Cir. 2011). The Union did not move for
reconsideration. And unlike the party in NLRB v. Best Prods. Co., 765 F.2d 903,
910 (9th Cir. 1985), the Union never put the merits of its argument squarely before
the Board even though it could have. See 29 C.F.R. § 102.48(c) (permitting
motions for reconsideration). Section 10(e) bars review.
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The petitions for review are DENIED and the Board’s application for
enforcement is GRANTED.
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