Unite Here! Local 5 v. NLRB ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITE HERE! LOCAL 5, No. 18-70029
Petitioner, NLRB Nos. 20-CB-163657
20-CB-166055
v. 20-CB-171212
NATIONAL LABOR RELATIONS
BOARD, MEMORANDUM*
Respondent.
NATIONAL LABOR RELATIONS No. 18-70324
BOARD,
NLRB Nos. 20-CB-163657
Petitioner, 20-CB-166055
20-CB-171212
v.
UNITE HERE! LOCAL 5,
Respondent.
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted March 15, 2019
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: WALLACE, SILER,** and McKEOWN, Circuit Judges.
Unite Here! Local 5 (the “Union”) appeals the National Labor Relations
Board’s (“NLRB”) decision finding that the Union violated the National Labor
Relations Act (“NLRA”). In affirming two Administrative Law Judges’ (“ALJ”)
decisions, the NLRB found that the Union’s picketing activities at the Aston Waikiki
Beach Hotel (the “Aston” or the “hotel”) blocked or impeded hotel employees, or
others while employees were present, from entering or exiting the hotel, in violation
of the NLRA. We deny the Union’s petition and affirm the NLRB’s order.
The Union sponsored pickets near the hotel numbering 12-200 individuals
on a regular basis for several months, which spanned the hotel’s entrance at its porte
cochere—a one-way, U-shaped covered driveway. Picketers would march in an
oblong circle on the sidewalk where it intersected the porte cochere. When a vehicle
approached, it was stopped to allow the picketers to continue marching; for smaller
picket lines, the delay was generally for two more full rotations of the line, and for
one rotation during larger picket lines, to draw attention to the picketing. After 1-4
minutes, the picketers would stop on either side of the driveway to allow the
vehicle(s) to pass; this timing, however, was discretionary. In addition to the picket
line delaying cars driven by the hotel’s valet drivers, Aston employees at the nearby
**
The Honorable Eugene E. Siler, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
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valet stand were also able to observe the picket line stopping cars driven by taxi
drivers or guests.
The Aston’s operators filed charges against the Union, prompting the NLRB’s
General Counsel to issue two complaints, alleging violations of Section 8(b)(1)(A)
of the NLRA for blocking or impeding hotel employees, or others while employees
were present, from entering or exiting the hotel. After separate hearings, both ALJs
found that the Union had violated the NLRA as alleged. On review of the
consolidated cases, the NLRB affirmed the ALJ decisions and adopted the
recommended Orders with modifications.
The NLRB bears “primary responsibility for developing and applying national
labor policy.” NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 (1990);
see also Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145, 1150-51 (9th Cir. 2003)
(citation omitted). “So long as the Board’s interpretation [of the Act in a case] is
‘rational and consistent’ with the statute, its rulings are afforded ‘considerable
deference.’” Glendale Assocs., 347 F.3d at 1151 (citation omitted). The NLRB’s
findings of fact are conclusive if they are supported by substantial evidence on the
record as a whole. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951). As to a factual finding, the “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
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Ass’ns of Cal. v. NLRB, 871 F.3d 767, 777 (9th Cir. 2017) (quoting Universal
Camera, 340 U.S. at 488). Given the NLRB’s “special expertise” in the field of
labor relations, we “defer to the reasonable derivative inferences drawn by the Board
from credited evidence.” NLRB v. Carson Cable TV, 795 F.2d 879, 881 (9th Cir.
1986) (citation omitted).
Section 7 of the NLRA grants employees “the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C.
§ 157. It also guarantees employees “the right to refrain from any or all of such
activities.” Id. Section 8(b)(1)(A) makes it “an unfair labor practice for a labor
organization or its agents . . . to restrain or coerce . . . employees in the exercise of
the rights guaranteed in section [7 of the Act].” 29 U.S.C. § 158(b)(1)(A); see also
Int’l Longshoremen’s and Warehousemen’s Union, C.I.O. (Sunset Line and Twine
Co.), 79 NLRB 1487, 1504 (1948). Determining the existence of a restraint or
coercion turns on “whether the misconduct is such that, under the circumstances
existing, it may reasonably tend to coerce or intimidate employees in the exercise of
rights protected under the Act.” NLRB v. Serv. Emps. Int’l Union, Local 254, AFL-
CIO, 535 F.2d 1335, 1337-38 (1st Cir. 1976) (internal quotation marks and citations
omitted); see also Plumbers Local 38 (Bechtel Corp.), 306 NLRB 511, 518 (1992).
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Substantial evidence supports the NLRB’s finding that the Union had
“deliberately, repeatedly, and persistently blocked numerous vehicles” driven by
employees for 1-4 minutes at a time, and “engaged in similar conduct” by
“temporarily blocking numerous vehicles in the presence or view of the hotel valet
and bell employees.” The NLRB—in adopting the underlying ALJ conclusions—
rejected the Union’s argument that its conduct was “brief and merely
inconvenienced vehicles” and was “minor or de minimis,” and distinguished the
Union’s actions from cases that involved only a few affected employees during
months of picketing. Short delays, occurring regularly over the course of months
and affecting workers during their performance of work duties, as well as others in
the presence of employees, is sufficient to reasonably find that such actions violated
the NLRA. The explanations of the NLRB’s legal position, through the adoption of
the ALJs’ conclusions, were therefore not “inadequate, irrational or arbitrary.” See
Local Joint Exec. Bd. of Las Vegas v. NLRB, 309 F.3d 578, 583 (9th Cir. 2002)
(quoting Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 364 (1998)).
PETITION DENIED; ORDER ENFORCED.
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