NLRB v. Remington Ldg. & Hosp. ( 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NOT FOR PUBLICATION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
NATIONAL LABOR RELATIONS No. 16-71194
BOARD,
NLRB No. 19-CA-032735
Petitioner,
UNITE HERE! LOCAL 878, MEMORANDUM*
Intervenor,
v.
REMINGTON LODGING &
HOSPITALITY, LLC, d/b/a The Sheraton
Anchorage,
Respondent.
On Petition for Review of an Order of the
National Labor Relations Board
Submitted December 4, 2017**
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: HAWKINS and CHRISTEN, Circuit Judges, and KOBAYASHI,***
District Judge.
Remington Lodging and Hospitality, LLC, petitions for review of an order
issued by the National Labor Relations Board that found Remington committed
numerous unfair labor practices in violation of the National Labor Relations Act.
Remington challenges only the Board’s determinations that Remington violated
§ 8(a)(1), (3) and (4) of the Act by disciplining and terminating Dexter Wray; that
it violated § 8(a)(1) and (3) of the Act by terminating Elda Buezo; and that it
violated § 8(a)(5) of the Act by scheduling employees in the engineering and
maintenance departments without regard to seniority. The Board applies for
enforcement of its order. Unite Here! Local 878 intervened on behalf of the Board.
We have jurisdiction under 29 U.S.C. § 160(e) and (f). We deny Remington’s
petition for review and grant the Board’s application for enforcement.
1. Remington did not challenge the majority of the Board’s findings of
unfair labor practices. The law is well settled that the Board is entitled to summary
enforcement of the portions of its order that Remington did not challenge. See,
e.g., Diamond Walnut Growers, Inc. v. NLRB, 53 F.3d 1085, 1087 (9th Cir. 1995).
***
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
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2. Substantial evidence supported the Board’s determination that Dexter
Wray was disciplined and terminated in violation of § 8(a)(1), (3) and (4) of the
Act. The Board based its finding in large part on testimony presented by Wray and
his supervisors. This court will not reverse the “Board’s credibility determinations
unless they are ‘inherently incredible or patently unreasonable.’” United Nurses
Ass’ns of Cal. v. NLRB, 871 F.3d 767, 777 (9th Cir. 2017) (quoting Retlaw Broad.
Co. v. NLRB, 53 F.3d 1002, 1006 (9th Cir. 1995)). Remington did not demonstrate
that Wray’s testimony was inherently incredible or patently unreasonable. Id.
Further, a review of the whole record shows that Wray’s discipline and termination
were part of a larger scheme of unfair labor practices. Remington asks this court to
view Wray’s discipline and termination in a vacuum and to ignore the larger
context, but this court’s review of the Board’s decisions requires “a review of the
whole record.” Cal. Pac. Med. Ctr. v. NLRB, 87 F.3d 304, 307 (9th Cir. 1996); see
also United Nurses, 871 F.3d at 777 (“The Board’s findings of fact are conclusive
if supported by substantial evidence on the record as a whole.”).
3. Substantial evidence also supported the Board’s finding that Elda Buezo
was terminated in violation of § 8(a)(1) and (3) of the Act. Remington argues that
the testimony of Elda Buezo and Human Resources Director Jamie Fullenkamp
showed that Buezo resigned rather than being terminated. The Board was not
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persuaded. “As to factual findings, a court may not ‘displace the Board’s choice
between two fairly conflicting views, even though the court would justifiably have
made a different choice had the matter been before it de novo.’” United Nurses,
871 F.3d at 777 (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951)).
4. Finally, substantial evidence supported the Board’s finding that
Remington violated § 8(a)(5) of the Act when it unilaterally stopped scheduling
employees by seniority in the engineering and maintenance departments. In part,
Remington’s argument on this issue relies on Dexter Wray’s testimony.
Remington again challenges Wray’s credibility, but fails to show the Board’s
credibility determination was “‘inherently incredible or patently unreasonable.’”
See United Nurses, 871 F.3d at 777 (quoting Retlaw, 53 F.3d at 1006). Remington
did not successfully challenge the evidence the Board relied upon to find this
§ 8(a)(5) violation.
“We must enforce the Board’s order if the Board correctly applied the law
and if the Board’s findings of fact are supported by substantial evidence on the
record viewed as a whole.” NLRB v. Big Bear Supermarkets No. 3, 640 F.2d 924,
928 (9th Cir. 1980).
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Remington’s petition for review of the Board’s order is DENIED. The
Board’s application for enforcement of its order is GRANTED.
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