Frankl v. HTH Corp.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH F. FRANKL,* Regional 
Director of Region 20 of the
National Labor Relations Board,
for and on behalf of the National
No. 10-15984
Labor Relations Board,
Petitioner-Appellee, D.C. No.
v.  1:10-cv-00014-
JMS-LEK
HTH CORPORATION; KOA
OPINION
MANAGEMENT, LLC, DBA Pacific
Beach Hotel; PACIFIC BEACH
CORPORATION,
Respondents-Appellants.

Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted
February 15, 2011—Honolulu, Hawaii
Filed July 13, 2011
Before: A. Wallace Tashima, William A. Fletcher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
*Joseph F. Frankl is substituted for his predecessor Joseph P. Norelli,
as Regional Director of Region 20 of the National Labor Relations Board,
pursuant to Fed. R. App. 43(c)(2).
9877
9882 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
COUNSEL
For petitioner-appellee Joseph F. Frankl, Regional Director of
Region 20 of the National Labor Relations Board, for and on
behalf of the National Labor Relations Board: Judith Ilene
Katz, Margaret E. Luke (argued), and Steven Lewis Sokolow,
National Labor Relations Board, Washington, D.C.; Jill H.
Coffman and Olivia Garcia, National Labor Relations Board
Region 20, San Francisco, California; Thomas W. Cestare,
Trent Kiyoshi Kakuda, and Dale Kanayo Yashiki, National
Labor Relations Board Sub-Region 37, Honolulu, Hawaii.
For respondents-appellants HTH Corporation, Pacific Beach
Corporation, and Koa Management, LLC: Wesley Fujimoto
(argued) and Ryan Sanada, Imanaka Kudo & Fujimoto LLC,
Honolulu, Hawaii.
OPINION
BERZON, Circuit Judge:
This appeal of an injunction issued pursuant to § 10(j), 29
U.S.C. § 160(j), of the National Labor Relations Act, 29
U.S.C. §§ 151 et seq., (the “NLRA” or the “Act”), raises two
questions, one difficult, the other relatively straightforward.
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9883
The straightforward question is whether the injunction
should be affirmed on its merits. We have little difficulty con-
curring in the District Court’s assessment that the National
Labor Relations Board (the “Board” or the “NLRB”) was
likely to determine, and be affirmed by this Court in so deter-
mining, that appellants (the “Hotel”) engaged in violations of
§ 8(a)(1), (3) and (5) of the Act by refusing to bargain in good
faith and excluding five union activists from the workforce.
The District Court likewise did not abuse its discretion in con-
cluding that the other requisites for § 10(j) relief were met.
The somewhat more difficult question is the logically prior
one of whether the District Court had the power to issue the
injunction. In 2007, the Board assigned the authority to
approve § 10(j) petitions to the General Counsel of the Board.
See Minutes of Board Action, Dec. 20, 2007. Pursuant to this
delegation, the General Counsel approved the filing of the
instant § 10(j) petition. The Hotel argues that the Act requires
that petitions for § 10(j) relief be individually approved by the
Board before they are filed with a district court. Because the
Regional Director did not obtain such approval, the Hotel
argues, he did not have authority to petition for the injunction,
and the District Court was without the power to grant it. Like
all the federal courts of appeals to have addressed the ques-
tion, we disagree. See Osthus v. Whitesell Corp., No. 09-3209,
___ F.3d ___, 2011 WL 1517949, at *2 (8th Cir. Apr. 22,
2011); Overstreet v. El Paso Disposal, L.P., 625 F.3d 844,
851-52 (5th Cir. 2010); Muffley v. Spartan Mining Co., 570
F.3d 534, 539-40 (4th Cir. 2009).
I. BACKGROUND
When the General Counsel of the National Labor Relations
Board issues a complaint alleging an unfair labor practice and
commences proceedings before the Board, it takes consider-
able time—sometimes years—for the administrative process
to conclude. But “[t]ime is usually of the essence [in labor
disputes].” Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449, 455 n.3
9884 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
(9th Cir. 1994) (en banc) (quoting S. Rep. No. 80-105, at 8
(1947) (second alteration in original)). As a result of “the rela-
tively slow procedure of Board hearing and order, followed
many months later by an enforcing decree of the circuit court
of appeals . . . [i]t [may be] possible for persons violating the
act to accomplish their unlawful objective before being placed
under any legal restraint and thereby to make it impossible or
not feasible [for the Board] to restore . . . the status quo.” Id.(quoting S. Rep. No. 80-105, at 27 (1947).
To remedy this problem, Congress added § 10(j) to the
NLRA, as part of a comprehensive labor law reform in 1947.
See Labor-Management Relations Act, 1947 (the “Taft-
Hartley Act”), Pub. L. No. 80-101, § 101, 61 Stat. 136, 149,
codified at 29 U.S.C. § 160(j). Section 10(j) provides:
(j) Injunctions
The Board shall have power, upon issuance of a
complaint as provided in subsection (b) of this sec-
tion charging that any person has engaged in or is
engaging in an unfair labor practice, to petition any
United States district court, within any district
wherein the unfair labor practice in question is
alleged to have occurred or wherein such person
resides or transacts business, for appropriate tempo-
rary relief or restraining order. Upon the filing of any
such petition the court shall cause notice thereof to
be served upon such person, and thereupon shall
have jurisdiction to grant to the Board such tempo-
rary relief or restraining order as it deems just and
proper.
29 U.S.C. § 160(j). The purpose of a § 10(j) injunction is “to
protect the integrity of the collective bargaining process and
to preserve the Board’s remedial power while it processes” an
unfair labor practice complaint. Miller, 19 F.3d at 459-60.
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9885
The circumstances leading to the application for a § 10(j)
injunction in this case are as follows: In 2002, the Interna-
tional Longshore and Warehouse Union, Local 142 (the
“Union”) began to organize employees at the Pacific Beach
Hotel in Waikiki, Honolulu.1 A representation election was
held in July, 2002, but the Board set it aside, finding that the
Hotel had “engaged in objectionable conduct by coercively
interrogating employees and maintaining an overly broad no-
solicitation policy.” HTH Corp., 342 N.L.R.B. 372, 374
(2004). After a second election, preceding which, the Board
found, the Hotel again engaged in objectionable conduct, see
generally Pac. Beach Corp., 344 N.L.R.B. 1160 (2005), the
Union was certified, prevailing by a one-vote margin.
Bargaining between the Union and the Hotel did not go
well. Between January 22, 2007 and August 29, 2008, the
Union filed numerous unfair labor practice charges with the
Regional Director of Region 20 of the Board (the “Regional
Director” or the “Director”). The Director investigated the
charges and issued an unfair labor practice complaint.
On September, 30 2009, after thirteen days of hearings, a
Board Administrative Law Judge (“ALJ”) determined that the
Hotel had violated § 8(a)(1), (3) and (5) of the Act and recom-
mended that the Board order the Hotel to cease and desist
from various unfair labor practices and to take other remedial
actions. The Hotel filed extensive exceptions to the ALJ’s rul-
ing with the Board, and the Director filed limited ones. The
case remains pending before the Board.
On January 7, 2010, the Director filed a petition in the Dis-
trict Court for injunctive relief under § 10(j) of the Act. In
accordance with the Board’s 2007 delegation of litigation
authority, the filing of the petition was approved by the
1
We use the term “Hotel” to refer the facility itself as well as the three
business entities, appellants here, that have owned and managed it. Where
the referent is not clear from context, we eschew the term.
9886 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
Board’s General Counsel but not by the members of the
Board itself. The Hotel opposed the petition on its merits but
also moved to dismiss the complaint for lack of subject-matter
jurisdiction, contending that the Director’s failure to obtain
the Board’s approval to file the § 10(j) petition deprived the
District Court of jurisdiction. Siding with the Director, the
District Court issued an injunction requiring the Hotel to bar-
gain with the Union, to reinstate certain discharged employ-
ees, to rescind unilateral changes to the bargaining unit
members’ terms and conditions of employment, and to take
various other remedial measures.
The Hotel appealed. On June 14, 2011, while this appeal
was pending, the Board issued its decision in the underlying
action. See HTH Corp., 356 N.L.R.B. No. 182 (2011). It
affirmed the ALJ’s rulings, findings, and conclusions, and it
modified the ALJ’s recommended remedies in respects not
relevant here.2
II. MOOTNESS
[1] Before turning to the substantive issues at stake in this
case, we must first address the issue of mootness. A Section
10(j) proceeding, in which the Board seeks injunctive relief to
protect the lawful status quo while litigation is pending, can
become moot when the NLRB issues its decision in the under-
lying administrative proceeding. See Miller, 19 F.3d at 453.
Here, however, the Board filed in the district court a motion
for civil contempt on February 14, 2011—while the Hotel was
subject to the District Court’s injunction, after this appeal was
filed, and before the Board issued its order. The original con-
2
The Board modified the ALJ’s order in two respects. First, in accord
with its decision in Ky. River Med. Ctr., 356 N.L.R.B. No. 8 (2010), the
Board required that back pay and other monetary awards be paid with
interest compounded on a daily basis. Second, the Board modified the
ALJ’s order to provide for the posting of notice in accord with J. Picini
Flooring, 356 N.L.R.B. No. 9 (2010).
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9887
tempt motion sought both coercive and compensatory relief,
including back pay for an employee allegedly terminated in
violation of the injunction and the Board’s attorneys’ fees and
costs incurred in connection with the contempt proceeding.
After the Board issued its decision, the Director notified the
District Court that he no longer sought coercive remedies and,
receiving an extension of time to file an amended civil con-
tempt motion, withdrew the original contempt motion. On
July 8, 2011, the Board filed an amended civil contempt
motion seeking compensatory relief.
[2] We hold that this appeal is not moot because its resolu-
tion is crucial to a pending claim for retrospective monetary
relief sought by the Board against the Hotel in a civil con-
tempt proceeding. See Trans Int’l Airlines, Inc. v. Int’l Bhd.
of Teamsters, 650 F.2d 949, 955 (9th Cir. 1980). “Despite
superseding events, an issue is not moot if there are present
effects that are legally significant.” Jacobus v. Alaska, 338
F.3d 1095, 1104 (9th Cir. 2003). The validity of a civil con-
tempt adjudication turns on the legitimacy of the underlying
injunction. See, e.g., Kirkland v. Legion Ins. Co., 343 F.3d
1135, 1142-43 (9th Cir. 2003); see also United States v.
United Mine Workers, 330 U.S. 258, 294-95 (1947). The
legitimacy of the District Court’s injunction, in turn, depends
on whether the District Court abused its discretion in granting
the Board’s § 10(j) petition. It also depends on the antecedent
question whether the Board has authority to assign § 10(j)
decisions to the General Counsel.3 Accordingly, we hold that
neither the delegation issue nor the merits of the injunction
are moot. Cf. Trans Int’l Airlines, 650 F.2d at 957 (holding
that alternative grounds for the injunction underlying a con-
tempt proceeding remained live on appeal and noting a reluc-
tance to fragment an appeal into “live” and “moot” issues).
3
Although a panel of three Board members issued the NLRB’s final
order, this circumstance does not affect the General Counsel’s authority
(or lack thereof) to commence the § 10(j) action.
9888 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
III. THE BOARD’S AUTHORITY TO ASSIGN § 10(j)
DECISIONS TO THE GENERAL COUNSEL
The Hotel contends that each petition for relief under
§ 10(j) must be individually authorized by a quorum of NLRB
members. Because the particular petition in this case was not
so authorized, the Hotel maintains, the petition was improp-
erly before the District Court and should have been dismissed
for want of subject-matter jurisdiction.
A.
1.
[3] The circumstances surrounding the 2007 delegation of
litigation authority to the General Counsel here contested was
described recently by the Supreme Court:
As 2007 came to a close, the Board found itself
with four members and one vacancy. It anticipated
two more vacancies at the end of the year, when the
recess appointments of Members Kirsanow and
Walsh were set to expire, which would leave the
Board with only two members—too few to meet the
Board’s quorum requirement. The four sitting mem-
bers decided to take action in an effort to preserve
the Board’s authority to function. On December 20,
2007, the Board made two delegations of its author-
ity, effective as of midnight December 28, 2007.
First, the Board delegated to the general counsel
continuing authority to initiate and conduct litigation
that would normally require case-by-case approval
of the Board. Second, the Board delegated “to Mem-
bers Liebman, Schaumber and Kirsanow, as a three-
member group, all of the Board’s powers, in antici-
pation of the adjournment of the 1st Session of the
110th Congress.”
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9889
....
On December 31, 2007, Member Kirsanow’s
recess appointment expired. Thus, starting on Janu-
ary 1, 2008, Members Liebman and Schaumber
became the only members of the Board.
New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2638-39
(2010) (citations omitted). New Process Steel went on to con-
sider the second of the two described delegations, holding that
a three-member group with one vacancy could not exercise
the powers of the Board. Id. at 2641-42. Section 3(b) of the
Act authorizes delegations to three-member groups, 29 U.S.C.
§ 153(b), but, the Supreme Court reasoned, such a “delegee
group ceases to exist once there are no longer three Board
members to constitute the group.” New Process Steel, 130 S.
Ct. at 2642 n.4.
[4] At the same time, New Process Steel expressly
declined to discuss the legality of the Board’s assignment of
litigation authority to the General Counsel, the delegation
challenged in this case. The Supreme Court explained:
Our conclusion that the delegee group ceases to exist
once there are no longer three Board members to
constitute the group does not cast doubt on the prior
delegations of authority to nongroup members, such
as the regional directors or the general counsel. The
latter implicates a separate question that our decision
does not address.
Id. We now consider that “separate question,” beginning with
a brief survey of the relevant history.
2.
From 1935, when the NLRA was enacted, to 1947, the
Board consisted of three members responsible for both the
9890 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
prosecution and the adjudication of all cases over which the
Board had jurisdiction. See National Labor Relations Act,
Pub. L. No. 74-198 (the “Wagner Act”), § 3(a), 49 Stat. 449,
451 (1935); id. § 10, 49 Stat. at 453-55; 2 JOHN HIGGINS, JR.,
THE DEVELOPING LABOR LAW 2656-57 (5th ed. 2006). In
response to criticism that the Board’s exercise of both pro-
secutorial and adjudicatory functions was improper, Congress
established the position of General Counsel of the Board and
assigned the General Counsel the Board’s prosecutorial func-
tions, as well as other roles. See id. at 2657; Taft-Hartley Act,
§ 101, 61 Stat. at 139, codified at 29 U.S.C. § 153(d). The
Taft-Hartley Act also increased the membership of the Board
to five. Id., codified at 29 U.S.C. § 153(a). Section 3(d) of the
Act now provides, in pertinent part:
There shall be a General Counsel of the Board who
shall be appointed by the President, by and with the
advice and consent of the Senate, for a term of four
years. The General Counsel of the Board shall exer-
cise general supervision over all attorneys employed
by the Board (other than administrative law judges
and legal assistants to Board members) and over the
officers and employees in the regional offices. He
shall have final authority, on behalf of the Board, in
respect of the investigation of charges and issuance
of complaints under section 160 of this title, and in
respect of the prosecution of such complaints before
the Board, and shall have such other duties as the
Board may prescribe or as may be provided by law.
29 U.S.C. § 153(d).
[5] As a matter of the Board’s historical practice, the Gen-
eral Counsel has not always sought case-specific approval
before filing a § 10(j) petition. Immediately after the Taft-
Hartley Act’s passage, for instance, the General Counsel and
the Board entered into a “memorandum of understanding”
according to which the “General Counsel [was to] exercise
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9891
full and final authority and responsibility on behalf of the
Board for initiating and prosecuting injunction proceedings as
provided for in Section[ ] 10(j).” Evans v. Int’l Typographical
Union, 76 F. Supp. 881, 888 (S.D. Ind. 1948) (quoting the
memorandum) (emphasis added); see also National Labor
Relations Board—Procedures § 202.35, reprinted in 20 Labor
Relations Reference Manual 3117-18 (1947) (“Whenever the
Regional Director deems it advisable to seek temporary
injunctive relief under Section 10(j) . . . the officer or
Regional Attorney to whom the matter has been referred will
make application for appropriate temporary relief . . . .”)
(emphasis added).
In 1950, however, the Board published a memorandum in
the Federal Register “describ[ing] the statutory authority and
set[ting] forth the prescribed duties and authority of the Gen-
eral Counsel of the Board.” Nat’l Lab. Rel. Bd., General
Counsel—Description of Authority and Assignment of
Responsibilities, 15 Fed. Reg. 6924, 6924 (Oct. 14, 1950) (the
“1950 Memorandum”). That memorandum provided that
“[o]n behalf of the Board, the General Counsel of the Board
will[,] in full accordance with the directions of the Board, . . .
initiate and prosecute injunction proceedings as provided in
section 10(j) . . . Provided, however, That the General Coun-
sel will initiate and conduct injunction proceedings under sec-
tion 10(j) . . . only upon approval of the Board . . . .” Id. In
other words, the 1950 Memorandum authorized the General
Counsel to file § 10(j) petitions on the Board’s behalf, but
required him to seek case-specific authorization from the
Board before filing them. The Board issued a new memoran-
dum in 1955 containing an assignment of litigation authority
to the General Counsel identical to that in the 1950 Memoran-
dum. See Nat’l Lab. Rel. Bd., Authority and Assigned
Responsibilities of General Counsel of National Labor Rela-
tions Board, 20 Fed. Reg. 2175, 2175 (April 6, 1955) (the
“1955 Memorandum”).4 These two memoranda set forth what
4
The 1950 Memorandum had been revoked in 1954, when the Board
assigned litigation authority to its Associate General Counsel. See Nat’l
Lab. Rel. Bd., Revocation of Statement of Description of Authority and
Assignment of Responsibilities to the General Counsel, 19 Fed. Reg.
8830, 8831 (Dec. 21, 1954).
9892 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
was the Board’s standard, but not invariant,5 practice until the
2007 delegation at issue in this case. The General Counsel’s
§ 10(j) Manual describes that procedure in greater detail:
After the Region [i.e., a regional office of the
agency] determines that a case has merit and
believes 10(j) proceedings are appropriate, the
Region makes a recommendation in writing to the
General Counsel, through the Injunction Litigation
Branch (ILB) of the Division of Advice, as to
whether it believes that Section 10(j) relief is war-
ranted. . . . If the General Counsel agrees that 10(j)
proceedings should be sought, the Region’s memo-
randum provides the foundation for the General
Counsel’s request for authorization from the Board.
....
After the General Counsel reviews and signs
ILB’s cover memorandum to the Board, the entire
case, including the Region’s memorandum and
attachments, is submitted to the Board. . . . At this
point, at the latest, the Region should immediately
begin preparing papers to file in district court. . . . If
the Board authorizes Section 10(j) proceedings, the
ILB will immediately notify the Region.
5
The Board delegated generic § 10(j) authority to the General Counsel
for a brief period in 2001 and 2002, see Nat’l Lab. Rel. Bd., Order Dele-
gating Authority to the General Counsel Before Chairman Peter J. Hurt-
gen, and Members Wilma B. Liebman and Dennis P. Walsh, 66 Fed. Reg.
65998, 65998 (Dec. 21, 2001); Kentov v. Point Blank Body Armor, Inc.,
258 F. Supp. 2d 1325, 1327-28 (S.D. Fla. 2002).
In addition to this 2001 order, the Board has published amendments to
the 1955 Memorandum in the Federal Register, but these amendments
relate to parts of the memorandum that are of no relevance here. See Nat’l
Lab. Rel. Bd., General Counsel—Further Amendment to Memorandum
Describing Authority and Assigned Responsibilities, 67 Fed. Reg. 62992,
62992 (Oct. 9, 2002) (citing other amending memoranda).
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9893
NLRB Office of the General Counsel, Electronic Redacted
§ 10(j) Manual §§ 5.2, 5.3, & 5.5 at 12 & 14 (2002).6 The
§ 10(j) Manual does not describe the Board’s procedure upon
receipt of the General Counsel’s memorandum, but the
Board’s Case Handling Manual suggests that the ordinary
practice has been for the Board to vote on each petition indi-
vidually:
The Regional Office, based on either the Director’s
sua sponte determination or a request from the
charging party, initially considers whether 10(j)
relief is warranted. In contrast to 10(l) injunctive
relief, where by statute interim relief must be sought
whenever certain unfair labor practices have
occurred and are likely to continue, the Board
decides on a case-by-case basis whether to authorize
the Regional Office to seek 10(j) relief.
NLRB Case Handling Manual, Part I, Unfair Labor Practice
Proceedings § 10310 (2009).7 After obtaining the Board’s
approval, the Regional Director files the § 10(j) petition in
district court.8 See 29 C.F.R. § 101.37 (“Whenever it is
deemed advisable to seek temporary injunctive relief under
section 10(j) . . . the officer or regional attorney to whom the
matter has been referred will make application for appropriate
temporary relief . . . .”).
6
The redacted § 10(j) Manual is available at http://www.nlrb.gov/sites/
default/files/documents/44/redacted_10j_manual_5.0_reduced.pdf (last
visited June 8, 2011).
7
The relevant section of the Case Handling Manual is available at
http://www.nlrb.gov/sites/default/files/documents/44/chm_ulp_2011.pdf
(last visited June 8, 2011). We later discuss the relevance of § 10(l).
8
For whatever reason, § 10(j) petitions have historically been filed in the
name of a regional director “for and on behalf of the Board.” See Gottfried
v. Frankel, 818 F.2d 485, 492 (6th Cir. 1987) (noting this practice). In
accord with this longstanding practice, the plaintiff in this case is “Joseph
F. Frankl, for and on behalf of the Board,” not simply the “Board.”
9894 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
[6] The Director and the Hotel dispute whether this proce-
dure, case-by-case pre-filing approval by the Board of § 10(j)
petitions, is mandated by the Act. We conclude that it is not.9
B.
The parties and some of the courts to have considered the
question have assumed that if a Regional Director failed to
obtain the necessary authorization to file a § 10(j) petition,
that failure would deprive a district court of subject-matter
jurisdiction. See Osthus, 2011 WL 1517949, at *2 (holding
that the Board’s delegation did not deprive the district court
of “subject matter jurisdiction”); El Paso Disposal, 625 F.3d
at 851-52 (same); cf. Fed. Election Comm’n v. NRA Political
Victory Fund, 513 U.S. 88, 98-99 (1994) (dismissing a peti-
tion for certiorari for lack of jurisdiction because the FEC
lacked “statutory authority to litigate th[e] case in” the
Supreme Court without the Solicitor General’s authorization).
In support of its contention that a district court’s jurisdiction
hangs in the balance, the Hotel observes that § 10(j)’s first
sentence describes the manner and circumstances in which a
§ 10(j) petition may be filed, and its second sentence then pro-
vides that “[u]pon the filing of any such petition the court . . .
shall have jurisdiction.” 29 U.S.C. § 160(j) (emphasis added).
The use of the word “such,” the Hotel argues, means that a
district court does not have jurisdiction to grant § 10(j) relief
if the petition seeking it was not approved in accordance with
the terms of the first sentence.
9
In McDermott v. Ampersand Publishing, 593 F.3d 950 (9th Cir. 2010),
we considered an appeal from a denial of a § 10(j) petition approved by
the General Counsel, but not by the Board. See id. at 956. We affirmed
the district court on the merits without addressing the propriety of the pro-
cedure by which the agency arrived at the decision to file the petition. See
id. at 956 n.4. Even if, as the Hotel maintains, a district court’s jurisdiction
turns on that procedure’s propriety, McDermott is not of precedential sig-
nificance as to that issue. See Lewis v. Casey, 518 U.S. 343, 352 n.2
(1996) (“[W]e have repeatedly held that the existence of unaddressed
jurisdictional defects has no precedential effect.”).
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9895
An alternative view of the statutory language is that as long
as the petition is facially regular—that is, is filed on behalf of
the Board in the appropriate court, specifies that a complaint
alleging an unfair labor practice has been issued, and requests
appropriate relief—it is “such [a] petition” and the district
court has jurisdiction to consider it. On that view, issues con-
cerning whether the petition was properly approved might at
most be considered on the merits, but would not implicate the
court’s jurisdiction. We regard it unlikely that Congress
intended a district court’s jurisdiction to depend on the back-
stage subtleties of how a facially proper petition came to be
before it, especially as both the court and the respondent in
§ 10(j) proceedings will often have no reason to suspect that
a petition was not properly authorized.
[7] Here, however, the issue of the propriety of the Board’s
2007 delegation of its authority to approve § 10(j) petitions to
the General Counsel has been squarely raised before us.
Because we conclude that the General Counsel’s exercise of
that authority was permitted by the statute, it does not matter
—except at one point in the analysis, see infra section III.D—
whether the District Court’s jurisdiction turned on the issue.
We shall therefore assume, without deciding, that an improp-
erly authorized § 10(j) petition would have implications for a
district court’s subject-matter jurisdiction.
C.
1.
The Hotel urges us to read § 10(j)’s language as requiring
that the Board approve each individual § 10(j) petition. That
section provides, “The Board shall have power . . . to petition
. . . for appropriate temporary relief . . . .” 29 U.S.C. § 160(j)
(emphasis added). “The Board,” the Hotel insists, means the
five members of the Board, acting as a group, not the General
Counsel and not the Regional Director.10 By contrast, § 10(l),
10
In some contexts, there is a certain ambiguity as to what “the Board”
is. “The Board” may refer to the entire agency responsible for the over-
9896 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
which was also added by the Taft-Hartley Act in 1947, pro-
vides that, upon the filing of certain kinds of charges with the
Board, the charges must be investigated and
[i]f, after such investigation, the officer or regional
attorney to whom the matter may be referred has
reasonable cause to believe such charge is true and
that a complaint should issue, he shall, on behalf of
the Board, petition [the appropriate] United States
district court . . . for appropriate injunctive relief
pending the final adjudication of the Board with
respect to such matter.
29 U.S.C. § 160(l) (emphases added). In other words, § 10(l)
makes clear that an officer of the Board—not the Board itself
—not only may, but must, seek temporary injunctive relief to
remedy certain narrow violations of the Act. That § 10(j) ref-
erences only the Board, not the Board’s officers or regional
attorneys, the argument goes, suggests that the Board itself
must approve each § 10(j) petition before it is filed.
We conclude that these statutory considerations are more
than counterbalanced by a number of others. As we explain,
§ 10(j) gives the Board the power to petition a court for relief,
which the Board necessarily does through counsel, but does
not specify the level of involvement that the Board must have
with each individual petition. The contrast with § 10(l)
reflects only that § 10(l) removes from the Board the author-
sight of most private-sector labor relations in the United States (and so
include the General Counsel and the regional directors), or it can refer
only to the five-member council that governs that agency. Section 10(j)’s
reference to “the Board” refers to the five-member council. See 29 U.S.C.
§ 152(10) (defining “the National Labor Relations Board” throughout the
Act as “the National Labor Relations Board provided for in section 153”);
id. § 153(a) (“the National Labor Relations Board (hereinafter called the
‘Board’) . . . is continued as an agency of the United States, except that
the Board shall consist of five instead of three members . . . .”).
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9897
ity, left to the Board in § 10(j), to determine how and by
whom the filing of petitions is to be authorized. Section 3(d)
of the Act, providing that the General Counsel shall, in addi-
tion to the duties prescribed by the statute, “have such other
duties as the Board may prescribe,” supplies the Board’s
authorization to assign the General Counsel the duty to decide
whether § 10(j) petitions should be filed. Relying on these
statutory features, we hold that, although the Board may
reserve to itself the ultimate decision whether to petition for
§ 10(j) relief in individual cases, it may also exercise its
power to petition for § 10(j) relief by authorizing the General
Counsel to decide in which cases to seek relief on the Board’s
behalf.
2.
[8] We begin with the observation that § 10(j) provides
only that “[t]he Board shall have power . . . to petition” for
relief. 29 U.S.C. § 160(j). It does not specify how the Board
must exercise that power, or that the Board may not allow
anyone else to decide when that power should be exercised in
individual cases.
[9] Section 10(j) is quite different in this respect from
§ 10(c), the provision of the Act discussing the Board’s power
to issue orders in unfair labor practice adjudications. See 29
U.S.C. § 160(c). That section provides that “[i]f upon the pre-
ponderance of the testimony taken the Board shall be of the
opinion” that an unfair labor practice has occurred, “then the
Board shall state its findings of fact and shall issue . . . an
order requiring such person to cease and desist from such
unfair labor practice.” Id. (emphases added). This language
contemplates that the Board shall form its own opinion and
state its own findings of fact. There is no analogous sugges-
tion in the language of § 10(j). Indeed, there is even a subtle
difference between § 10(c)’s statement that the Board “shall
issue . . . an order” and § 10(j)’s provision that the Board
“shall have power . . . to petition” for relief. The former iden-
9898 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
tifies the Board as the taker of the action in question (issuing
orders), while the latter merely assigns the Board a power,
without any clear implication as to how that power must be
exercised or to whom it may be delegated.
[10] Further, § 10(c) begins with a recognition that testi-
mony may be “taken by [a Board] member, agent, or agency”
of the Board, see also 29 U.S.C. § 160(b), before stating that
after such a member, agent, or agency takes testimony, “in its
discretion, the Board upon notice may take further testimony
or hear argument.” Id. § 160(c) (emphases added). The sec-
tion then goes on to describe, in the manner recounted above,
the Board’s duties to state its findings of fact, form its opin-
ion, and issue orders in unfair labor practice cases. This dis-
tinction between the Board on the one hand and Board
members, agents, and agencies on the other underscores that
§ 10(c)’s later references to the “Board’s”—but not Board
“members’, agents’ or agencies’ ”—duty to decide unfair
labor practice cases and issue orders in them is further evi-
dence that the Board may not authorize others to adjudicate
individual unfair labor practice cases on its behalf. Again,
there is no similar contrast in § 10(j), and so no basis for
inferring a requirement that the Board itself make § 10(j)
decisions on a case-by-case basis.
Another provision of the Act similarly supports through
structural comparison the view that § 10(j) does not direct the
Board to decide itself, on an individualized basis, whether to
file petitions for interim relief with district courts. Unlike
§ 10(j), § 10(b) expressly contemplates the possibility of an
“agent or agency designated by the Board for . . . purposes”
of exercising the Board’s “power” to issue complaints. 29
U.S.C. § 160(b).11 But an examination of the statutory history
11
Section 10(b), 29 U.S.C. § 160(b), provides:
Whenever it is charged that any person has engaged in or is
engaging in any such unfair labor practice, the Board, or any
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9899
of § 10(b) reveals that the inference to be drawn from that
provision is that the use of the term “power” to describe a par-
ticular Board activity does not preclude its assignment on a
generic basis to another official or officials.
Section 10(b), including its mention of an “agent or agency
designated by the Board” to exercise the Board’s “power” to
issue complaints, was included in the original Wagner Act,
see 49 Stat. at 453-54, and left largely unamended by the
Taft-Hartley Act. See 61 Stat. at 146-47. The Taft-Hartley
Act, however, added § 3(d) to the NLRA, creating the posi-
tion of General Counsel, designating the General Counsel as
having “final authority, on behalf of the Board,” to issue com-
agent or agency designated by the Board for such purposes, shall
have power to issue and cause to be served upon such person a
complaint stating the charges in that respect, and containing a
notice of hearing before the Board or a member thereof, or before
a designated agent or agency, at a place therein fixed, not less
than five days after the serving of said complaint: Provided, That
no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge
with the Board and the service of a copy thereof upon the person
against whom such charge is made, unless the person aggrieved
thereby was prevented from filing such charge by reason of ser-
vice in the armed forces, in which event the six-month period
shall be computed from the day of his discharge. Any such com-
plaint may be amended by the member, agent, or agency conduct-
ing the hearing or the Board in its discretion at any time prior to
the issuance of an order based thereon. The person so complained
of shall have the right to file an answer to the original or
amended complaint and to appear in person or otherwise and give
testimony at the place and time fixed in the complaint. In the dis-
cretion of the member, agent, or agency conducting the hearing
or the Board, any other person may be allowed to intervene in the
said proceeding and to present testimony. Any such proceeding
shall, so far as practicable, be conducted in accordance with the
rules of evidence applicable in the district courts of the United
States under the rules of civil procedure for the district courts of
the United States, adopted by the Supreme Court of the United
States pursuant to section 2072 of Title 28.
9900 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
plaints, and providing generally for the assignment of “other
duties” to the General Counsel. 61 Stat. at 139. The new
§ 3(d) thus both negated the Board’s ability to make the spe-
cific delegation of Board “power” to issue unfair labor prac-
tice complaints contemplated by § 10(b) by assigning that
“final” authority to the General Counsel, and obviated the
need for any specific authorization within § 10(j) for discre-
tionary delegations of the Board’s powers, by providing
generically in § 3(d) for such assignments to the General
Counsel. So the mention of designated agents in § 10(b), far
from defeating the notion that the Board’s § 10(j) power may
be exercised by an entity other than the Board, in fact sug-
gests that the Board’s “powers” are not inherently nondelega-
ble.12
Finally, comparison between § 10(j) and § 10(l), does not
detract from the conclusion that nothing in § 10(j) requires the
Board to make case-by-case decisions as to § 10(j) petitions.
For a subset of unfair labor practice cases, § 10(l) mandates,
rather than allows, application for interim relief if “the officer
or regional attorney to whom the matter may be referred has
reasonable cause to believe [the] charge is true and that a
complaint should issue.” 29 U.S.C. § 160(l). The section also
assigns the task of making the application for interim relief to
“the officer or regional attorney to whom the matter may be
referred . . . on behalf of the Board.” Id. Section 10(l) thus
establishes a mandatory procedure in respect to when to peti-
tion for interim relief and who should file the petition. By
contrast, § 10(j) sets neither type of requirement, and so pro-
vides the Board with flexibility both as to whether to petition
12
The Hotel strenuously objects to the notion that § 3(d) has anything
to do with the General Counsel’s authority to approve § 10(j) petitions, an
objection to which we later return. But, for now, the salient points are that
§ 10(j) is silent as to the level of generality at which the Board must exer-
cise its power to petition, and that the Act has from the outset recognized
that the Board can sometimes exercise its statutory “powers” by assigning
them generically to other affiliated officials and allowing them to decide
in which individual cases they should be exercised.
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9901
for mandatory relief and as to the decisionmaking process for
determining whether to do so.
Section 10(j)’s silence speaks loudly enough that we might
end the matter there, concluding that the Board may exercise
its § 10(j) power by having the General Counsel decide
whether to petition for § 10(j) relief in an individual case.
Indeed, unlike stating findings of fact or issuing orders in
unfair labor practice proceedings, it is hard to delineate the
precise action that constitutes an exercise of the § 10(j)
power. Surely, the multi-member Board is not required to
make every decision that arises in the course of litigating a
§ 10(j) petition. The multi-member council need not, for
example, appear before the district court and recite its oral
argument in unison. The Board’s lawyers do—indeed, must—
make such litigation decisions and so they are necessarily
involved in the exercise of the Board’s power to petition
under § 10(j).
[11] No more than it requires the Board’s involvement in
each decision relating to a § 10(j) petition does the language
of the statute require that the Board approve each individual
petition. In other words, nothing in the statute makes the indi-
vidual petition the unit of analysis for determining when the
Board is exercising its § 10(j) power. Moreover, petitioning a
court for relief is a lawyerly function and the General Counsel
is, after all, the supervisor of the Board’s legal staff. See 29
U.S.C. § 153(d). So it seems quite natural that the Board
could assign to the General Counsel the duty to decide when
to exercise its power to petition. Cf. Am. Bar Ass’n, Model
Rules of Prof’l Conduct, R. 1.2 cmt. 3 (“[T]he client may
authorize the lawyer to take specific action on the client’s
behalf without further consultation . . . . [A] lawyer may rely
on such an advance authorization.”).
3.
More generally, we have previously observed that as far as
delegation to subordinates is concerned, “[e]xpress statutory
9902 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
authority for delegation is not required.” Loma Linda Univ. v.
Schweiker, 705 F.2d 1123, 1128 (9th Cir. 1983); see U.S.
Telecom Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004)
(“When a statute delegates authority to a federal officer or
agency, subdelegation to a subordinate federal officer or
agency is presumptively permissible absent affirmative evi-
dence of a contrary congressional intent.”); see also Inland
Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 702
(9th Cir. 1996) (“Without express congressional authorization
for a subdelegation, we must look to the purpose of the statute
to set its parameters.” (internal quotation marks omitted)).
It is true that the General Counsel’s status as the Board’s
subordinate is not unequivocal. The General Counsel is an
independently appointed and confirmed officer whose pro-
secutorial role Congress deemed it prudent to segregate from
the Board’s adjudicatory one. That fact complicates the appli-
cation of the general presumption that delegations to subordi-
nates are permissible in cases of statutory silence.
[12] But the General Counsel is the Board’s subordinate at
least insofar as § 3(d) of the Act requires the General Counsel
to perform “such other duties as the Board may prescribe.” 29
U.S.C. § 153(d). The Act, in other words, is not silent. Upon
careful consideration, we conclude that § 3(d) authorizes the
Board to prescribe to the General Counsel in particular the
responsibility and authority to decide when to seek § 10(j)
relief.
Section 3(d) of the Act provides that the General Counsel
shall have final authority, on behalf of the Board, in
respect of the investigation of charges and issuance
of complaints under [section 10], and in respect of
the prosecution of such complaints before the Board,
and shall have such other duties as the Board may
prescribe or as may be provided by law.
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9903
29 U.S.C. § 153(d) (emphasis added). The Hotel contends that
§ 3(d) authorizes the delegation only of “duties,” not of “pow-
ers,” and so, because the Act describes the authority to peti-
tion for a § 10(j) injunction as a “power,” 29 U.S.C. § 160(j),
not as a “duty,” § 3(d) cannot authorize the Board to delegate
to the General Counsel generic authority to approve § 10(j)
petitions.
[13] A careful reading of § 3(d), informed by the Act as a
whole, reveals that its use of the word “duties” does not con-
template that functions elsewhere described as “powers” may
not be prescribed to the General Counsel. Section 3(d) pro-
vides that the General Counsel shall have “such other duties”
as the Board may prescribe; it does not simply say “such
duties.” 29 U.S.C. § 153(d) (emphasis added). For the use of
the word “other” to be linguistically proper, § 3(d) must be
read as having already listed some functions that may be con-
strued as duties of the General Counsel. And, unsurprisingly,
it has: The sentence in § 3(d) authorizing the prescription of
“other duties” begins by stating that the General Counsel
“shall have final authority, on behalf of the Board, in respect
of the investigation of charges and issuance of complaints
under [section 10], and in respect of the prosecution of such
complaints before the Board.” 29 U.S.C. § 153(d). For the
word “other” in the phrase “other duties” to make sense,
§ 3(d) must be read as presupposing that these enumerated
functions of the General Counsel (i.e., the investigation of
charges and the issuance and prosecution of complaints) are
also “duties.”
Other parts of the Act, however, refer to these same enu-
merated functions as “powers.” Section 10 of the Act, for
instance, sets forth the Board’s authority to issue complaints
and is explicitly cross-referenced by § 3(d). It provides that:
the Board, or any agent or agency designated by the
Board for such purposes, shall have power to issue
9904 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
and cause to be served upon such person a complaint
....
29 U.S.C. § 160(b) (emphasis added). Similarly, Congress
prefaced §§ 11 and 12 of the Act, which describe the Board’s
authority to investigate unfair labor practices, with the head-
ing “Investigatory Powers.” Wagner Act, 49 Stat. at 455;
Taft-Hartley Act, 61 Stat. at 150 (emphasis added); see
Almendarez-Torres v. United States, 523 U.S. 224, 234
(1998) (“[T]he heading of a section [is a] tool[ ] available for
the resolution of a doubt about the meaning of a statute.”)
(internal quotation marks omitted). So, read as a whole, the
Act cannot be fairly said to contain any clear-cut distinction
between “powers” and “duties.”
That the Act appears to use the terms “power” and “duty”
as largely interchangeable is unsurprising. One can only be
under a duty to do that which one has the power to do, and
a duty need not be an obligation to exercise a ministerial
power. Cf. Osthus, 2011 WL 1517949, at *4-5 (Colloton, J.,
concurring) (observing that “it is not logically inconsistent for
Congress to say that a superior body (the Board) may task a
subordinate official (the General Counsel) with the ‘duty’ to
exercise some of the Board’s ‘power’ ” and drawing an anal-
ogy to similar language in the Internal Revenue Code). The
sum of the matter is that any inference from the text of the
statute that the Act precludes the Board from assigning to the
General Counsel the task of deciding in which individual
cases § 10(j) petitions should be filed is, at best, exceedingly
weak.
4.
One final consideration reinforces the conclusion that the
Act permits the assignment of § 10(j) petition decisions to the
General Counsel: Section 10(e) of the Act has long been inter-
preted and applied to permit the General Counsel, and not the
Board itself, to make the ultimate decision whether to com-
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9905
mence litigation in individual cases. Section 10(e)’s structure
is nearly identical to that of § 10(j). The agency’s longstand-
ing practice under § 10(e) is therefore persuasive evidence of
the legality of its more short-lived and episodic practice under
§ 10(j). See New Process Steel, 130 S. Ct. at 2641-42.
Violation of an order issued by the Board at the conclusion
of unfair labor practice proceedings does not result in any
penalties for the violator. See 2 HIGGINS, supra, at 2802. “To
secure compliance, the Board must apply to an appropriate
U.S. court of appeals” for enforcement of its order. Id. Section
10(e) of the Act sets forth the power of the Board to petition
for judicial enforcement of its orders, using language closely
parallel to that of § 10(j). Specifically, § 10(e) provides, in
part, that “[t]he Board shall have power to petition any court
of appeals of the United States . . . for the enforcement of [its]
order.” 29 U.S.C. § 160(e) (emphasis added). Section 10(e)
then includes a grant of jurisdiction that is structured in a
manner essentially identical to § 10(j)’s, providing that
“[u]pon the filing of such petition, the court shall cause notice
thereof to be served . . ., and thereupon shall have jurisdiction
of the proceeding and of the question determined therein.” Id.
From 1950 to 2007, the General Counsel’s litigation
authority on behalf of the Board was, with rare exceptions,
governed by memoranda containing the following language:
On behalf of the Board, the General Counsel of
the Board will, in full accordance with the directions
of the Board, petition for enforcement and resist
petitions for review of Board Orders as provided in
section 10(e) and (f) of the act, initiate and prosecute
injunction proceedings as provided in section 10(j),
seek temporary restraining orders as provided in sec-
tion 10(e) and (f), and take appeals either by writ of
error or on petition for certiorari to the Supreme
Court: Provided, however, That the General Counsel
will initiate and conduct injunction proceedings
9906 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
under section 10(j) or under section 10(e) and (f) of
the act and contempt proceedings pertaining to the
enforcement of or compliance with any order of the
Board only upon approval of the Board, and will ini-
tiate and conduct appeals to the Supreme Court by
writ of error or on petition for certiorari when autho-
rized by the Board.
1955 Memorandum, 20 Fed. Reg. at 2175; 1950 Memoran-
dum, 15 Fed. Reg. at 6924; see section II.A.2, supra. In other
words, the memoranda assigned to the General Counsel
generic authority to petition for enforcement of the Board’s
orders under § 10(e) of the Act. In the proviso, the Board
required the General Counsel to obtain case-specific approval
only to seek injunctive relief under § 10(j), (e) and (f) of the
Act, to petition for Supreme Court review, and to bring con-
tempt proceedings.13
The agency’s longstanding practice of having the General
Counsel, and not the Board, exercise final authority in
approving petitions for enforcement under § 10(e) is strongly
supportive of that practice’s validity. See New Process Steel,
130 S. Ct. at 2641 (drawing on the “longstanding practice of
the Board” as “persuasive evidence” that the Court’s interpre-
tation of the Act “is the correct one”); Karsten v. Saint-
Gobain Performance Plastics, 131 S. Ct. 1325, 1335 (2011)
(according deference under Skidmore v. Swift & Co., 323 U.S.
134 (1944), to agencies’ views in part because of “[t]he length
of time the agencies have held them”); Int’l Bhd. of Teamsters
13
Because § 10(j) relief may expire upon the issuance of a final Board
order, § 10(e) also provides that a court “shall have power to grant . . .
temporary relief or [a] restraining order” pending the enforcement pro-
ceedings. 29 U.S.C. § 160(e). A request for such temporary relief is dis-
tinct from a petition to enforce an order of the Board.
Section 10(f) of the Act allows “person[s] aggrieved” by Board orders
to petition for their review by a court and allows the court to grant tempo-
rary injunctive relief similar to that available under § 10(e). 29 U.S.C.
§ 160(f).
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9907
v. Daniel, 439 U.S. 551, 566 n.20 (1979) (“[A]n administra-
tive agency’s consistent, longstanding interpretation of the
statute under which it operates is entitled to considerable
weight.”). To conclude that the General Counsel could not
exercise such authority would be to hold decades of unchal-
lenged agency practice unlawful—a practice, moreover, in
which courts have acquiesced thousands of times over by
granting petitions for enforcement.
In NLRB v. C&C Roofing Supply, Inc., 569 F.3d 1096 (9th
Cir. 2009), for example, relying on the 1955 Memorandum,
we observed that “[t]he General Counsel’s authority to peti-
tion the courts of appeals for enforcement . . . is permanently
within the General Counsel’s authority,” explaining that such
power “does not derive from the temporary delegation of
2007.” Id. at 1098. Although we did not directly address the
validity of the 1955 Memorandum’s assignment of § 10(e)
authority, the fact that we characterized the delegation as per-
manent evidences its longstanding nature and the history of
judicial acquiescence in it.
Of course, if the statute clearly precluded the generic
assignment of when to exercise the Board’s § 10(e) power to
the General Counsel, it would be our duty to tell the agency
that it had been wrong all along. But the statute contains no
such preclusion. Instead, it affirmatively suggests that the
Board may exercise its power to petition for enforcement
under § 10(e) by authorizing the General Counsel to decide
when to petition for enforcement of Board orders in individ-
ual cases, for the same reasons, already discussed, that it may
do the same under § 10(j). See IBP, Inc. v. Alvarez, 546 U.S.
21, 34 (2005) (“[T]he normal rule of statutory interpretation
[is] that identical words used in different parts of the same
statute are generally presumed to have the same meaning.”);
Overstreet v. United Bhd. of Carpenters, Local Union No.
1506, 409 F.3d 1199, 1206-07 (9th Cir. 2005) (same). The
converse is, of course, also true. As long as the Board may
grant generic authorization to the General Counsel to approve
9908 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
petitions for enforcement under § 10(e), the same must be the
case under § 10(j).
[14] In sum, we hold that the text of the Act, reinforced by
the Board’s longstanding practice under § 10(e), allows the
Board to assign the General Counsel final authority in decid-
ing when to petition for injunctive relief under § 10(j) in par-
ticular unfair labor practice cases pending before the Board.
The three other circuits that have addressed the question
agree that district courts may entertain § 10(j) petitions
approved by the General Counsel pursuant to the authority
granted him by the Board in December 2007. See Osthus v.
Whitesell Corp., No. 09-3209, ___ F.3d ___, 2011 WL
1517949 (8th Cir. Apr. 22, 2011); Overstreet v. El Paso Dis-
posal, L.P., 625 F.3d 844, 851-52 (5th Cir. 2010); Muffley v.
Spartan Mining Co., 570 F.3d 534, 539-40 (4th Cir. 2009).
Although our reasoning differs somewhat from that in those
cases, our conclusion with regard to the validity of the
Board’s 2007 delegation of litigation authority under § 10(j)
is identical.
D.
[15] Because we have assumed, without deciding, that the
Regional Director’s authority to petition for § 10(j) relief may
have jurisdictional implications, we consider an issue that the
Hotel did not raise, but that other circuits have considered and
rejected—whether the reduction of the Board’s membership
to two, where it stood at the time the General Counsel
approved the filing of the § 10(j) petition here at issue,
affected the ability of the General Counsel to file § 10(j) peti-
tions. See El Paso Disposal, 625 F.3d at 853; Osthus, 2011
WL 1517949 at *2 (following El Paso Disposal); see also
Williams v. United Airlines, Inc., 500 F.3d 1019, 1021 (9th
Cir. 2007) (noting our duty to raise questions of the district
court’s jurisdiction nostra sponte).
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9909
In a case decided before New Process Steel, the D.C. Cir-
cuit suggested that the reduction of the Board’s membership
to two would have such an effect. See Laurel Baye Health-
care of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 473 (D.C.
Cir. 2009). Considering the 2007 delegation of adjudicatory
authority also at issue in New Process Steel, Laurel Baye
drew on principles of agency and corporations law, broadly
reasoning that “[i]n the context of a board-like entity, a
delegee’s authority . . . ceases the moment that vacancies or
disqualifications on the board reduce the board’s membership
below a quorum.” Id.But New Process Steel rejected the D.C. Circuit’s underly-
ing premise in Laurel Baye: The Supreme Court emphasized
that a quorum requirement only specifies the “number of
members who must participate for [a multi-member organiza-
tion] to take an action,” not “a membership requirement that
must be satisfied or else the power of any entity to which the
Board has delegated authority is suspended.” New Process
Steel, 130 S. Ct. at 2642 n.4. In other words, New Process
Steel instructs that the Act’s quorum requirement must be sat-
isfied when the Board is acting directly through its members,
but does not need to be satisfied for the Board’s earlier exer-
cises and assignments of its authority, made with a proper
quorum, to remain valid and in effect.
[16] Given that distinction, the Board-member quorum
requirement in § 3(b) of the Act has only limited pertinence
with regard to § 10(j). As we developed earlier, § 10(j)
assigns the Board a “power” but does not mandate the case-
by-case involvement of the Board as a multi-member organi-
zation in exercising that power. Thus, with respect to the
Board’s power to file petitions under § 10(j), it was sufficient
that a quorum of the Board in 2007 decided to assign deci-
sions as to individual petitions to the General Counsel. Under
the distinction explained in New Process Steel, nothing in the
Board’s quorum requirement would cause the General Coun-
9910 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
sel’s ability to file § 10(j) petitions to lapse after the Board’s
membership fell below a quorum.
IV. THE MERITS OF THE INJUNCTION
We now consider the injunction on its merits.
Section 10(j) permits a district court to grant relief “it
deems just and proper.” 29 U.S.C. § 160(j). “To decide
whether granting a request for interim relief under Section
10(j) is ‘just and proper,’ district courts consider the tradi-
tional equitable criteria used in deciding whether to grant a
preliminary injunction.” McDermott v. Ampersand Publ’g,
LLC, 593 F.3d 950, 957 (9th Cir. 2010). Thus, when a
Regional Director seeks § 10(j) relief, he “must establish that
he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is
in the public interest.” Winter v. Nat. Res. Def. Council, 129
S. Ct. 365, 374 (2008). “ ‘[S]erious questions going to the
merits’ and a balance of hardships that tips sharply towards
the [Regional Director] can support issuance of a preliminary
injunction, so long as the [Regional Director] also shows that
there is a likelihood of irreparable harm and that the injunc-
tion is in the public interest.” Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). In all cases,
however, the Regional Director “must establish that irrepara-
ble harm is likely, not just possible, in order to obtain a pre-
liminary injunction.” Id. at 1131 (emphasis omitted); see
Small v. Operative Plasterers’ Int’l Ass’n, Local 200, 611
F.3d 483, 491 (9th Cir. 2010) (observing that Winter abro-
gated Miller’s holding that a mere “possibility of irreparable
harm” can be adequate); McDermott, 593 F.3d at 957 (same).
“[T]he court must evaluate the traditional equitable criteria
through the prism of the underlying purpose of section 10(j),
which is to protect the integrity of the collective bargaining
process and to preserve the Board’s remedial power.” Scott v.
Stephen Dunn & Assocs., 241 F.3d 652, 661 (9th Cir. 2001)
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9911
(internal quotation marks omitted), abrogated on other
grounds as recognized by McDermott, 593 F.3d at 957.
The District Court determined that the Director was likely
to succeed on the merits and likely to suffer irreparable harm;
that the balance of hardships tipped in the Director’s favor;
and that a preliminary injunction would be in the public inter-
est. The District Court therefore enjoined the Hotel from vari-
ous activities that, in its view, the Board would likely
determine, and be affirmed by the Ninth Circuit in so deter-
mining, are unfair labor practices in violation of § 8(a)(1), (3)
and (5) of the Act.
We may reverse the grant of a § 10(j) preliminary injunc-
tion “only where the district court abused its discretion or
based its decision on an erroneous legal standard or on clearly
erroneous findings of fact.” Miller, 19 F.3d at 455. “Where
the district court is alleged to have relied on erroneous legal
premises, review is plenary.” Id. (internal quotation marks
omitted). Applying these standards, we affirm.
A. Likelihood of Success on the Merits
1. Legal Standards
On a § 10(j) petition, likelihood of success is a function of
the probability that the Board will issue an order determining
that the unfair labor practices alleged by the Regional Direc-
tor occurred and that this Court would grant a petition enforc-
ing that order, if such enforcement were sought.14 Cf.
McDermott, 593 F.3d at 964. We have explained that when
the General Counsel, and not the Board, gives final approval
to file a § 10(j) petition, “we do not presume that the Regional
Director’s position will ultimately be adopted by the Board.”
14
Although the Board’s June 14, 2011 decision, HTH Corp., 356
N.L.R.B. No. 182 (2011), does not affect our analysis, its conclusions
strongly support our own.
9912 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
McDermott, 593 F.3d at 964; see also Small, 611 F.3d at 491
n.3 (expressing hesitation about whether according weight to
the Regional Director’s decision to file a § 10(l) petition is
appropriate in evaluating the likelihood of success because
such petitions are filed without the Board’s approval); United
Bhd. of Carpenters, 409 F.3d at 1207 n.12 (same). Because
the Board did not approve the petition here, we do not accord
significance to the fact of the petition’s filing in evaluating the
Director’s likelihood of success.
Nonetheless, in evaluating the likelihood of success, “it is
necessary to factor in the district court’s lack of jurisdiction
over unfair labor practices, and the deference accorded to
NLRB determinations by the courts of appeals.” Miller, 19
F.3d at 460. It is, after all, the Board and not the courts, which
“has primary responsibility for declaring federal labor poli-
cy.” Id. Additionally, and for similar reasons, “even on an
issue of law, the district court should be hospitable to the
views of the General Counsel, however novel.” Id. (internal
quotation marks omitted). Given these considerations, it
remains the case—whether or not the Board itself approved
the filing of the § 10(j) petition—that the regional director in
a § 10(j) proceeding “can make a threshold showing of likeli-
hood of success by producing some evidence to support the
unfair labor practice charge, together with an arguable legal
theory.” Id.; see also Scott, 241 F.3d at 662 (“[T]o satisfy the
‘likelihood of success’ prong of the traditional equitable test,
[the Director] need only show a better than a negligible
chance of success.” (internal quotation marks omitted)). But
if the Director does not show that success is likely, and
instead shows only that there are serious questions going to
the merits, then he must show that the balance of hardships
tilts sharply in his favor, as well as showing that there is irrep-
arable harm and that the injunction is in the public interest.
See Alliance for the Wild Rockies, 632 F.3d at 1135.
2. Statutory provisions
The District Court held that the Board would likely deter-
mine, and be affirmed by the Ninth Circuit in so determining,
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9913
that the Hotel committed violations of § 8(a)(1), (3) and (5)
of the Act. Section 8(a)(3) makes it an unfair labor practice
to “discriminat[e] in regard to hire or tenure of employment
or any term or condition of employment to encourage or dis-
courage membership in any labor organization,” 29 U.S.C.
§ 158(a)(3); § 8(a)(5) makes it an unfair labor practice for an
employer “to refuse to bargain collectively with the represen-
tatives of his employees,” id. § 158(a)(5); and § 8(a)(1) makes
it an unfair labor practice to “to interfere with, restrain, or
coerce employees in the exercise” of their rights to organize
and to bargain collectively. Id. § 158(a)(1). “[A] violation by
an employer of any of the four subdivisions of Section 8,
other than subdivision one, is also a violation of subdivision
one.” 1 HIGGINS, supra, at 87 (internal quotation marks omit-
ted).
3. Underlying facts
The Hotel is comprised of three business entities: the HTH
Corporation, the Pacific Beach Corporation, and Koa Man-
agement, LLC. The three entities are owned by the Hayashi
family and have officers and managers in common. All three
entities are named respondents on the § 10(j) petition and are
a single employer.15
From January 1, 2007 until December 1, 2007, a fourth
entity, Pacific Beach Hotel Management, LLC (“PBHM”), a
subsidiary of an otherwise unrelated hotel chain, the Outrig-
ger Group, managed the Hotel. Neither the Outrigger Group
nor PBHM is a respondent in this case or in the proceedings
before the Board.
Initially, Robert Minicola and David Mori played the lead
roles in collective bargaining. Minicola, the Regional Vice
15
The Hotel has not challenged on appeal the District Court’s determi-
nation that the Board will find that the three entities constitute a single
employer for purposes of the Act.
9914 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
President of Operations of the HTH Corporation and the
Pacific Beach Corporation had decision-making authority as
to all labor-related issues for the Hotel and represented the
Hotel in the negotiations. David Mori served as the chief
spokesperson for the Union.
As previously noted, the Union was certified on August 15,
2005. Between November 29, 2005 and December 14, 2006,
the Union and the Hotel engaged in thirty-seven bargaining
sessions. Throughout these sessions, the Hotel insisted on
three contractual provisions that the Union charged were so
objectionable as to evidence the Hotel’s refusal to bargain in
good faith.
First, the Hotel insisted on a union recognition clause pro-
viding:
The employer has and shall maintain at any and all
times its sole and exclusive right to unilaterally and
arbitrarily change, amend, and modify the certified
bargaining unit . . . and any and all hours, wages,
and/or other terms and conditions of employment at-
will [sic].
The Hotel also proposed a management rights clause specify-
ing that all terms and conditions of employment, including the
right “to select, hire, discipline and discharge employees at
will,” “shall remain vested exclusively in the Hotel.” The
third objected-to provision set forth the Hotel’s proposed
grievance procedure: The Hotel insisted that all employee or
Union complaints be adjudicated by the relevant department
manager, with appeals to the director of human resources and
ultimately to the general manager of the Hotel.
As the ALJ remarked,
these three proposals [were] all of a piece. The first
is a demand for [cession] of any control whatsoever
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9915
over the bargaining unit itself. The second sets
parameters which allow the Union virtually no say in
the nature of the jobs held by employees which the
Union represents. The third, [while] facially allow-
ing for some sort of appeal procedure in the event of
an on-the-job grievance, actually sets up only an illu-
sion . . . [as] it all end[s] up in the hands of the gen-
eral manager . . . .
In large part because of the Hotel’s insistence on these
three provisions, the parties had not reached an agreement on
an initial contract by January 1, 2007. On that date, PBHM
assumed management of the facility and workforce.
PBHM, a newly formed subsidiary of the Outrigger Group,
had entered into a management agreement with the Pacific
Beach Corporation on September 6, 2006, well after collec-
tive bargaining with the Union had begun. The management
agreement required PBHM to hire all current Hotel employees
at the same jobs, with the same rates of pay and benefits and
the same seniority dates. PBHM was also to be responsible
for bargaining with the Union. Under the terms of the man-
agement agreement, however, the approval of the Hotel’s
owner was required before PBHM could agree to any contract
“if the cost to the Hotel under that [contract] exceeds . . .
$350,000,” or if the contract exceeded one year in duration
and could not be terminated upon thirty days’ notice.
Because, as PBHM’s lead negotiator testified, a collective
bargaining agreement lasting less than a year or terminable
upon thirty days’ notice would be of limited value and also
because any plausible agreement lasting longer than a year
would cost more than $350,000, the management agreement
effectively gave the Hotel veto power with regard to PBHM’s
negotiations with the Union. The management agreement also
required that its terms be kept confidential, so PBHM could
not inform the Union of the Hotel’s broad reservation of the
right to reject contracts.
9916 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
The Union and PBHM reached tentative accord on most
items and, by the end of June, 2007, were on the verge of
reaching an overall agreement. PBHM requested Hotel
approval to propose a contract which it believed the Union
would accept. PBHM also requested that the Hotel permit it
to disclose to the Union the Hotel’s reservation of the right to
reject contracts. When the Hotel did not consent to the con-
tract or to disclosure, PBHM informed the Hotel that if the
Hotel continued to refuse to grant its two requests for consent,
PBHM would believe itself unable to fulfill its obligation to
bargain in good faith under the Act, and the Hotel would be
in violation of its covenant to “reasonably consent to . . .
requests” under its management agreement with PBHM. Four
days later, the Hotel exercised its right to terminate the man-
agement agreement with PBHM.
Effective December 1, 2007, Pacific Beach Corporation
resumed its management of the facility. The Hotel required all
employees to reapply for their jobs, and then reinstated most,
but not all, employees. The District Court found that, out of
union animus, the Hotel did not continue the employment of
five bargaining committee members. Also effective December
1, 2007, the Hotel withdrew recognition from the Union,
based on Minicola’s observations that attendance at Union
rallies had declined and unspecified “verbal and written indi-
cations that the majority of employees did not want to be rep-
resented by the Union.” From then on, the Hotel refused to
bargain with the Union. The Hotel also unilaterally granted
wage increases to certain employees and changed employees’
work schedules and responsibilities. In July, 2008, the Hotel
determined that it had received signatures from a majority of
bargaining unit employees on a petition stating that the
employees did not desire Union representation and thereupon
purported to withdraw recognition a second time.
4. Likelihood of success: § 8(a)(5)
The Board will find that an employer has violated its duty
to bargain under § 8(a)(5) of the Act if the employer has
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9917
failed to bargain in good faith with a union, see Regency Serv.
Carts, Inc., 345 N.L.R.B. 671, 671 (2005), or if it has engaged
in a per se violation of its duty to bargain, regardless of its
good faith. See, e.g., NLRB v. Katz, 369 U.S. 736, 743 (1962).
To determine a party’s good faith, the Board looks to the
“totality of the [r]espondent’s conduct, both at and away from
the bargaining table.” Hardesty Co., 336 N.L.R.B. 258, 259
(2001) (internal quotation marks omitted), enf’d 308 F.3d 859(8th Cir. 2002). An employer is not required to “make conces-
sions or yield any position fairly maintained,” NLRB v.
Holmes Tuttle Broadway Ford, Inc., 465 F.2d 717, 719 (9th
Cir. 1972), but is “obliged to make some reasonable effort in
some direction to compose his differences with the union.”
Regency Serv. Carts, Inc., 345 N.L.R.B. at 671 (internal quo-
tation marks omitted) (emphasis in original). Thus, “mere pre-
tense at negotiations with a completely closed mind and
without a spirit of cooperation does not satisfy the require-
ments” of § 8(a)(5). Id. (internal quotation marks omitted).
Here, the ALJ determined that the Hotel violated § 8(a)(5)
by (1) engaging in bad faith bargaining in 2006; (2) engaging
in bad-faith bargaining through PBHM in 2007; and (3) com-
mitting per se violations by refusing to bargain and unilater-
ally changing terms and conditions of employment after it
withdrew recognition from the Union in December 2007. The
Regional Director argues, and the District Court concurred,
that the Board was likely to agree with the ALJ’s § 8(a)(5)
conclusions and is likely to be upheld in that respect upon
judicial review. We agree.
[17] (i) “[T]he Board has held that a proposal that vested
exclusive control in the employer on the setting of wages,
while offering little more than the status quo in return, was
significant evidence of an intent to frustrate agreement, and in
conjunction with other indicia of bad faith, violated of Section
8(a)(5) of the Act.” In re Liquor Indus. Bargaining Grp., 333
N.L.R.B. 1219, 1220 (2001), enf’d 50 F. App’x 444 (D.C. Cir.
9918 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
2002). More generally, while “the mere insistence upon a
management-rights clause is not a per se violation of the Act,
the Board has consistently held that a violation is made out
when, as here, the employer demands a contractual provision
which would exclude the labor organization from any effec-
tive means of participation in important decisions affecting
the terms and conditions of employment of its members.”
United Contractors Inc., 244 N.L.R.B. 72, 73 (1979) (foot-
note omitted), enf’d 631 F.2d 735 (7th Cir. 1980). Taken
together, the Hotel’s proposed recognition clause, manage-
ment rights provision, and one-sided grievance procedure
would exclude the Union from any meaningful representa-
tional role. As a result, the Board was likely to find that the
Hotel’s insistence on these three clauses is exceedingly per-
suasive evidence of the Hotel’s lack of good faith in bargain-
ing during 2006.
[18] In addition, the Regional Director points to, and the
ALJ and the District Court both found, other evidence of bad-
faith bargaining. See A-1 King Size Sandwiches, Inc., 265
N.L.R.B. 850, 858 (1982) (adopting the ALJ’s conclusion that
an employer bargained in bad faith “primarily” based on the
employer’s “bargaining proposals and positions,” especially
“viewed in the light of statements indicative of [the employ-
er’s] attitude toward collective bargaining”). That evidence
included Minicola’s repeated reminders that the Union had
won by a one-vote margin, notwithstanding the fact that the
Board found that the Hotel had engaged in objectionable con-
duct preceding the election that quite possibly affected the
margin of victory. Moreover, the Hotel’s objectionable con-
duct preceding both elections, as well as its subsequent viola-
tions of § 8(a)(3) and (5), discussed below, constitute further
evidence from which the Board could have inferred that the
Hotel had no intent to resolve its differences with the Union
in 2006. In light of this evidence and the Hotel’s bargaining
position, the Director has established a sufficient likelihood
that the Board would reasonably determine that the Hotel bar-
gained in bad faith in 2006.
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9919
[19] (ii) The Hotel also challenges the District Court’s
finding that the Board was likely to determine that the Hotel
bargained in bad faith from January 1, 2007 to December 1,
2007, the period during which PBHM was responsible for
bargaining with the Union. The Court held the record ade-
quate to support the conclusion that PBHM acted as an agent
for the Hotel in collective bargaining and that the Hotel’s can-
cellation of the management agreement with PBHM, when a
collective bargaining agreement was imminent, while contin-
uing to keep its veto authority over a prospective agreement
secret, constituted bad-faith bargaining. The Regional Direc-
tor asks us to affirm that holding.16
The District Court’s reasoning as to this point was compre-
hensive and persuasive. Rather than repeat and summarize it,
we append that portion of the District Court’s opinion, with
some clarifying redactions. See infra Appendix A.
The Hotel’s three objections to that reasoning are unavail-
ing. It is true that the ALJ did not hold that PBHM was the
Hotel’s agent, but he did nonetheless hold that the Hotel was
the statutory employer during the period of the management
agreement. The District Court was under no obligation to
adopt the ALJ’s reasoning wholesale to issue § 10(j) relief.
The District Court instead needed only to determine whether
the Board was likely to determine that the Hotel was the statu-
16
One initial point bears consideration with regard to this time period:
It would seem not to matter whether the Hotel engaged in bad-faith bar-
gaining while the PBHM management agreement was in effect, if it did
so both before and afterward, as we would affirm the interim bargaining
order no matter whether the Hotel bargained in bad faith during the PBHM
management agreement period. The District Court, however, ordered the
Hotel to “resume contract negotiations and honor all tentative agreements
entered into from the point [the Hotel] and the Union, and PBHM and the
Union, left off negotiations on November 30, 2007.” Thus, whether it was
“just and proper,” 29 U.S.C. § 160(j), to require the Hotel to resume bar-
gaining from the tentative agreements reached by PBHM could turn on
whether the Hotel was a statutory employer when PBHM reached those
agreements. For that reason, we reach the latter issue.
9920 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
tory employer, and to be affirmed by this Court in so deter-
mining.
The Hotel challenges the District Court’s agency determi-
nation on its merits only by arguing that that determination
stands in tension with PBHM’s statement that the HTH Cor-
poration was no longer the employer and that the District
Court based its agency finding “simply” on the Hotel’s power
to cancel the management agreement. Neither of these objec-
tions bears weight. PBHM’s statements about who the
employer was did not prevent the Board from answering that
legal question itself. And the District Court based its agency
determination on the fact that the Hotel reserved the right, in
secret, to veto any likely collective bargaining agreement, not
simply on its power to cancel the management agreement.
(iii) Finally, as the District Court determined, the Regional
Director has a strong likelihood of establishing that the Hotel
violated § 8(a)(5) after December 1, 2007, the date as of
which the management agreement with PBHM ended. It is
undisputed that the employer from that date on was the Hotel.
The Hotel did not resume bargaining at that point. Instead, it
withdrew recognition from the Union.
An employer may only withdraw recognition from a union
based on “objective evidence” of a loss of majority support,
see Levitz Furniture Co. of the Pac., Inc., 333 N.L.R.B. 717,
723-25 (2001), and, even then, withdraws recognition “at its
peril,” id. at 725. “If the union contests the withdrawal of rec-
ognition in an unfair labor practice proceeding, the employer
will have to prove by a preponderance of the evidence that the
union had, in fact, lost majority support at the time the
employer withdrew recognition. If it fails to do so, it will not
have rebutted the presumption of majority status, and the
withdrawal of recognition will violate Section 8(a)(5).” Id.(footnote omitted). The Hotel has not presented any objective
evidence of a loss of majority support as of December 1,
2007.
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9921
[20] In any case, “employers may not withdraw recogni-
tion in a context of serious unremedied unfair labor practices
tending to cause employees to become disaffected from the
union.” Id. at 717 n.1. The Board was likely to find that the
Hotel’s bad-faith bargaining in 2006 and 2007, as well the
§ 8(a)(3) violations discussed below, constituted pervasive
unfair labor practices sufficient to taint any evidence showing
that the Union had lost the support of employees. Conse-
quently, the Hotel could not have validly withdrawn recogni-
tion in December 2007, even if it had had objective evidence
of the Union’s loss of majority support.
The Hotel argues that it was able to rebut the presumption
that the unfair labor practices caused the loss of majority sup-
port. But it was unlikely to be able to do so. The Hotel did not
resume bargaining with the Union after the unfair labor prac-
tices in 2006 and 2007. See Lee Lumber & Bldg. Material
Corp., 322 N.L.R.B. 175, 178 (1996) (“In the absence of
unusual circumstances, . . . [the] presumption of unlawful
taint can be rebutted only by an employer’s showing that
employee disaffection arose after the employer resumed its
recognition of the union and bargained for a reasonable period
of time without committing any additional unfair labor prac-
tices that would detrimentally affect the bargaining.”). The
Board was therefore likely to determine, and to be affirmed
by this Court in so determining, that the Hotel committed a
violation of § 8(a)(5) when it withdrew recognition on
December 1, 2007.
The July 2008 petition submitted by the Hotel and purport-
ing to show a loss of majority support for the Union is, as the
District Court found, irrelevant, both because of the effect of
the prolonged unfair labor practices on employee support for
the Union and because the Hotel withdrew recognition on
December 1, 2007, without any objective evidence of the loss
of union support, and refused to bargain with the Union there-
after. Whether the Hotel purported to withdraw recognition a
9922 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
second time, and whether it had a basis for doing so, simply
does not matter.
Additionally, if the Board found that the withdrawal of rec-
ognition was improper, it would likely also have found that
the Hotel committed a per se violation of § 8(a)(5) by unilat-
erally changing the terms and conditions of bargaining unit
employees’ employment after unlawfully withdrawing recog-
nition from the Union. See Local Joint Exec. Bd. v. NLRB,
540 F.3d 1072, 1075 (9th Cir. 2008).
5. Likelihood of success: § 8(a)(3)
[21] The District Court determined that the Director was
likely to succeed in showing that the Hotel violated § 8(a)(3)
by terminating five Union leaders, all long-term Hotel
employees and all members of the Union’s negotiation team,
when it reclaimed management responsibilities from PBHM.
The Hotel limits its challenge to this determination to arguing
that the District Court applied the wrong legal standard, main-
taining the Hotel did not terminate but only refused to rehire
the employees on December 1, 2007. The theory is that
PBHM was a distinct employer from the Hotel, so that the lat-
ter was hiring afresh as of December 2007.
The District Court found that the Hotel decided not to con-
tinue the employment of the five long-term employees
because of their leadership roles in the Union. The Hotel does
not now argue that this finding was clearly erroneous. Refus-
ing to hire new employees because of their prior union
involvement is as much an unfair labor practice as is firing
current employees for that reason. See FES (A Division of
Thermo Power), 331 N.L.R.B. 9, 12 (2000), enf’d 301 F.3d 83(3d Cir. 2002); id. at 12-13 (applying the discriminatory dis-
charge framework from Wright Line, 251 N.L.R.B. 1083(1980), to refusal-to-hire violations). While the General
Counsel must in the hiring context prove “that there was at
least one available opening for the applicant,” id. at 12, the
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9923
Hotel does not contest that there were such openings here. As
to union animus, the burden is on the Regional Director to
demonstrate its role in motivating the employment decision
with regard to either a termination or a failure to hire, and
both the ALJ and District Court found that the Regional
Director had met that burden for each of the five excluded
employees.17
B. Likelihood of Irreparable Harm
Small rejected, as inconsistent with Winter, Miller’s hold-
ing that a court may presume irreparable harm in § 10(j) and
§ 10(l) cases if a likelihood of success on the merits in the
unfair labor practice proceeding is established. 611 F.3d at
490, 494. At the same time, Small retained from Miller, as
consistent with Winter, the underlying irreparable injury stan-
dard applicable in cases such as this one: In the context of the
NLRA, “permit[ting an] alleged unfair labor practice to reach
fruition and thereby render meaningless the Board’s remedial
authority is irreparable harm.” Id. at 494 (quoting Miller, 19
F.3d at 460) (alteration in original). In other words, while a
district court may not presume irreparable injury with regard
to likely unfair labor practices generally, irreparable injury is
established if a likely unfair labor practice is shown along
with a present or impending deleterious effect of the likely
unfair labor practice that would likely not be cured by later
relief. In making the latter determination, inferences from the
nature of the particular unfair labor practice at issue remain
available.
For instance, with regard to the central statutory violations
17
As the above discussion of PBHM’s status as an agent suggests, we
do not mean to indicate that the Hotel did not remain the statutory
employer throughout. If it did remain the employer, then the District Court
was correct to apply the test for terminations, not refusals to hire. Our
point in the text is only that this consideration does not matter for purposes
of the § 8(a)(3) analysis.
9924 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
likely established here, violations of § 8(a)(5), continuation of
that unfair labor practice, failure to bargain in good faith, has
long been understood as likely causing an irreparable injury
to union representation. The Board long ago observed that:
Employees join unions in order to secure collective
bargaining. Whether or not the employer bargains
with a union chosen by his employees is normally
decisive of its ability to secure and retain its mem-
bers. Consequently, the result of an unremedied
refusal to bargain with a union, standing alone, is to
discredit the organization in the eyes of the employ-
ees, to drive them to a second choice, or to persuade
them to abandon collective bargaining altogether.
Karp Metal Prods. Co., 51 N.L.R.B. 621, 624 (1943) (foot-
note omitted). As the Seventh Circuit has likewise noted,
“[a]s time passes, the benefits of unionization are lost and the
spark to organize is extinguished. The deprivation to employ-
ees from the delay in bargaining and the diminution of union
support is immeasurable.” NLRB v. Electro-Voice, Inc., 83
F.3d 1559, 1573 (7th Cir. 1996). Consequently, even if the
Board subsequently orders a bargaining remedy, the union is
likely weakened in the interim, and it will be difficult to recre-
ate the original status quo with the same relative position of
the bargaining parties. That difficulty will increase as time
goes on. And the Board generally does not order retroactive
relief, such as back pay or damages, to rank-and-file employ-
ees for the loss of economic benefits that might have been
obtained had the employer bargained in good faith. See 2
HIGGINS, supra, at 2775. Thus, a finding of likelihood of suc-
cess as to a § 8(a)(5) bad-faith bargaining violation in particu-
lar, along with permissible inferences regarding the likely
effects of that violation, can demonstrate the likelihood of
irreparable injury, absent some unusual circumstance indicat-
ing that union support is not being affected or that bargaining
could resume without detriment as easily later as now.
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9925
In a similar vein, “the discharge of active and open union
supporters risks a serious adverse impact on employee interest
in unionization and can create irreparable harm to the collec-
tive bargaining process.” Pye v. Excel Case Ready, 238 F.3d
69, 74 (1st Cir. 2001) (internal quotation marks omitted); see
id. (observing that other employees’ “fear of employer retalia-
tion after the firing of union supporters is exactly the ‘irrepa-
rable harm’ contemplated by § 10(j)”). For these reasons, a
likelihood of success as to a § 8(a)(3) violation with regard to
union activists that occurred during contract negotiations or
an organizing drive largely establishes likely irreparable
harm, absent unusual circumstances.
[22] We have already determined that the District Court
did not abuse its discretion or make any errors of law in find-
ing that the Director had established a likelihood of success
with regard to the bad-faith bargaining and the exclusion of
union leaders from the workforce violations. The same evi-
dence and legal conclusions, along with permissible infer-
ences regarding the likely interim and long-run impact of the
unfair labor practices that were likely to be found, preclude
the conclusion that the District Court abused its discretion in
finding a likelihood of irreparable harm.
The Hotel’s primary argument as to why the Director can-
not show irreparable harm is the contention that the Director’s
delay in filing the § 10(j) petition is fatal to his claim that
interim relief is necessary to prevent irreparable harm. The
first unfair labor practice charge was filed on January 22,
2007; the Director issued an administrative complaint on
August 29, 2008, covering many incidents, including the
withdrawal of recognition and the exclusion of the five union
leaders from the workplace, that occurred long after the initial
charge was filed. The Director filed the § 10(j) petition on
January 7, 2010, after the ALJ decision upholding the Direc-
tor’s various unfair labor practice allegations. By awaiting the
ALJ decision, the Director made the District Court’s task in
evaluating the propriety of interim relief much easier, and
9926 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
much more likely to be carried out accurately, as the Court
had the benefit of a record developed over thirteen days of
hearings and also of the ALJ’s legal analysis and conclusions.
For its excessive delay contention, the Hotel relies on
McDermott, in which this Court held that a district court did
not abuse its discretion in ruling that, given a thirteen- to
seventeen-month delay between the alleged occurrence of
unfair labor practices and the filing of a § 10(j) petition, “an
interim order . . . [was unlikely to] provide any genuine reas-
surance to employees beyond that provided by a final Board
order.” McDermott, 593 F.3d at 965 (internal quotation marks
omitted). At the same time, McDermott recognized that
“delay by itself is not a determinative factor in whether the
grant of interim relief is just and proper.” Id. (internal quota-
tion marks omitted). Rather, “[t]he factor of delay is only sig-
nificant if the harm has occurred and the parties cannot be
returned to the status quo or if the Board’s final order is likely
to be as effective as an order for interim relief.” Id. (internal
quotation marks omitted).
McDermott’s observation regarding the effect of delay in
that case is inapposite for several reasons. First, with respect
to its conclusion that the delay in seeking relief properly sup-
ported the finding of a lack of irreparable harm, because of
the First Amendment interests the employer in that case
invoked, McDermott was applying a special, heightened stan-
dard. See McDermott, 593 F.3d at 958 (adopting and applying
United Bhd. of Carpenters’s conclusion that “in light of the
risk that protected First Amendment speech would be
restrained . . . ‘only a particularly strong showing of likely
success, and of harm . . . as well, could suffice’ ” (quoting
United Bhd. of Carpenters, 409 F.3d at 1208 n.13) (second
ellipsis in original) (emphasis added)); id. at 964 (“In light of
the First Amendment issues in this case, we conclude that the
district court did not abuse its discretion by declining to grant
preliminary relief. The standard for such relief is a tough one,
taking into account [United Bhd. of Carpenters’s] increased
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9927
demands.” (emphasis added)). As the District Court in this
case noted, no First Amendment interests are here at stake,
and viewed under ordinary irreparable injury standards, “[a]s
more time passes, it becomes less likely that these discharged
employees will return to the Hotel,” undermining the union-
ization effort. Norelli v. HTH Corp., 699 F. Supp. 2d 1176,
1203-04 (D. Haw. 2010).
Second, in this case, the record provided specific support
for the conclusions that there would likely be irreparable harm
beyond that which could be remedied once the Board had
ruled, and that interim relief was more likely to curb the ongo-
ing unfair labor practices than subsequent relief. For one
thing, the former employees whose interim reinstatement the
Regional Director sought were members of the bargaining
committee. Having current employees on the bargaining com-
mittee in daily contact with the other employees and therefore
able to judge the impact of various bargaining proposals on
their constituencies is likely to affect not only the other
employees’ willingness to adhere to union support, but also
the interim bargaining process itself. For that reason, the
§ 8(a)(3) relief in this case is intimately tied up with the
interim bargaining order.
Moreover, here, the passage of time did not entirely pre-
clude the District Court’s ability to restore the status quo. The
Union was willing to represent the employees and to bargain
on their behalf under an interim bargaining order. Recogniz-
ing and bargaining in good faith during the period the Board
is considering the exceptions to the ALJ’s ruling both would
directly restore to the employees the advantages of day-to-day
union representation during that period, advantages that can-
not be restored retroactively, and also could lead to the con-
clusion of a collective bargaining agreement, with
concomitant employee benefits, during the interim period.
Thus, the interim relief ordered immediately remedied statu-
tory injuries as to which no retroactive relief is available.
9928 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
Finally, of course, there is the fact that McDermott was
reviewing denial of interim relief under an abuse-of-discretion
standard, while we are reviewing the grant of relief under that
same standard.
[23] For each of these independent reasons, we conclude
that the District Court was not required to deny relief because
the Regional Director awaited the ALJ’s decision before filing
the § 10(j) petition.
C. Balance of the Hardships
The District Court determined that the balance of the hard-
ships weighed in the Director’s favor. The primary hardship
the Hotel had advanced was the protection of its employees
from the Union, which, the Hotel claims, the employees did
not want to represent them. The Hotel renews that hardship
argument before us. We also reject it.
“[I]n considering the balance of hardships, the district court
must take into account the probability that declining to issue
the injunction will permit the alleged[ ] unfair labor practices
to reach fruition and thereby render meaningless the Board’s
remedial authority.” Miller, 19 F.3d at 460. For that reason,
the District Court’s determination that the Regional Director
had shown likely irreparable harm to the collective bargaining
process meant that there was also considerable weight on his
side of the balance of the hardships.
The Hotel’s asserted countervailing interest, its employees’
alleged desire not to be represented by the Union, fails to out-
weigh the hardships advanced by the Regional Director. As an
initial matter, there is “nothing unreasonable in giving a short
leash to the employer as vindicator of its employees’ organi-
zational freedom.” Auciello Iron Works, Inc. v. NLRB, 517
U.S. 781, 790 (1996). For that reason, courts generally are
skeptical about an employer’s claimed “benevolence as its
workers’ champion against their certified union.” Id.; see also
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9929
Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27,
50 n.16 (1987).
[24] More importantly, by establishing a strong likelihood
of success on the merits of the alleged § 8(a)(3) and (5) viola-
tions, the Regional Director showed that it was more likely
than not that the Hotel had committed pervasive unfair labor
practices. As the Board’s case law indicates, in the context of
pervasive unremedied unfair labor practices, it becomes
impossible to know if employees truly no longer want repre-
sentation by the elected union, as their expressed preferences
are generally tainted by the effects of the unfair labor prac-
tices. See Lee Lumber, 322 N.L.R.B. at 177-78. In all likeli-
hood, it will only be possible accurately to gauge union
support after the Hotel ceases and desists from its allegedly
unfair labor practices and resumes bargaining with the Union
—precisely the relief the Regional Director sought and the
District Court granted. The District Court, therefore, had no
reason to give significant weight to the Hotel’s assertions con-
cerning support for the Union, and so properly assessed the
balance of the hardships.
D. Public Interest
“In § 10(j) cases, the public interest is to ensure that an
unfair labor practice will not succeed because the Board takes
too long to investigate and adjudicate the charge.” Miller, 19
F.3d at 460. Ordinarily then, when, as here, the Director
makes a strong showing of likelihood of success and of likeli-
hood of irreparable harm, the Director will have established
that preliminary relief is in the public interest.
The Hotel contests that conclusion as applied here, object-
ing that the Director “was literally asking the District Court
to grant the Board’s remedy, before the Board itself even has
a chance to decide the case.” But, in most bad-faith bargain-
ing cases, a § 10(j) remedy will be identical, or at least very
similar, to the Board’s final order. This precept follows from
9930 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
the nature of interim § 10(j) relief and of the Board’s final
remedial power.
[25] The purpose of § 10(j) relief is “to preserve the
Board’s remedial power.” Miller, 19 F.3d at 459-60. The task
of the Board in devising a final remedy is “to take measures
designed to recreate the conditions and relationships that
would have been had there been no unfair labor practice.”
Franks v. Bowman Transp. Co., 424 U.S. 747, 769 (1976)
(internal quotation marks omitted). Very often, the most
effective way to protect the Board’s ability to recreate such
relationships and restore the status quo will be for the court
itself to order a return to the status quo. See Scott, 241 F.3d
at 660 (observing that “injunctive relief under section 10(j) is
intended to preserve the status quo pending final action by the
Board”). So the District Court cannot have abused its discre-
tion just because it entered an order similar to the one the
Board was likely to enter in this case.18 We have thus no rea-
son to disturb the District Court’s determination that injunc-
tive relief was in the public interest.
CONCLUSION
For the foregoing reasons, the District Court’s injunction is
AFFIRMED.
18
We also decline the Hotel’s invitation to follow Eisenberg v. Hartz
Mountain Corp., 519 F.2d 138, 144 (3d Cir. 1975), which imposed a six-
month temporal limitation on all § 10(j) relief (subject, in certain circum-
stances, to extension). No other court of appeals has followed Eisenberg
in imposing such a rule. Cf. Pye v. Teamsters Local Union No. 122, 61
F.3d 1013, 1025 (1st Cir. 1995) (“abjur[ing] the Third Circuit’s rule” and
leaving the decision to impose a temporal limitation on § 10(j) relief
within “the sound discretion of the district court”). We have never adopted
a per se rule imposing a fixed temporal limitation on all § 10(j) relief.
Under no requirement to impose such a limitation, the District Court did
not abuse its discretion in declining to do so in this case.
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9931
APPENDIX A
Appended Excerpt of Norelli v. HTH Corp., 699 F. Supp. 2d
1176 (D. Haw. 2010)
c. Whether Respondents engaged in bad faith bargaining
from January 2007 through November 2007
In September 2006, Koa and PBHM signed the [Manage-
ment Agreement (the “MA”)] for PBHM to take over “the
marketing, operation, direction, Hillsborough maintenance,
management, and supervision of all portions of the Hotel,”
effective January 2007. Both Respondents and PBHM told the
Union that in light of the MA, PBHM and not Respondents
was the employer of the Hotel employees. Despite these
assertions, the ALJ found that “although Respondents con-
tractually delegated PBHM to run the Hotel and to bargain
collectively with the Union on Respondents’ behalf [during
this time], at no time were Respondents relieved of the obliga-
tion to bargain in good faith with the Union” and that Respon-
dents engaged in bad faith bargaining during this time period.
The ALJ came to this conclusion by finding that Respon-
dents were the “true employer” of the Hotel staff during this
time. Petitioner has filed a limited cross-appeal requesting
that the Board make an explicit finding of agency. As
explained below, the court does not reach whether the Board
will determine that Respondents were the “true employer,”
but rather concludes that the Board will find and the Ninth
Circuit will affirm that PBHM was an agent of Respondents
for purposes of negotiating a [collective bargaining agreement
(“CBA”)], and that Respondents never intended to permit
PBHM to enter into a CBA with the Union.
i. Respondents’ and PBHM’s principal/agent relationship as
to CBA negotiations
An “employer” for purposes of the NLRA “includes any
person acting as an agent of an employer, directly or indirect-
9932 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
ly.” 29 U.S.C. § 152(2). The NLRA further provides that “[i]n
determining whether any person is acting as an ‘agent’ of
another person so as to make such other person responsible
for his acts, the question of whether the specific acts per-
formed were actually authorized or subsequently ratified shall
not be controlling.” 29 U.S.C. § 152(13).
The Board applies common law agency principles to deter-
mine the existence of an agency relationship. See, e.g., Tyson
Fresh Meats, Inc., 343 N.L.R.B. 1335, 1336 (2004). An
agency relationship may therefore exist between a purported
agent and principal where the agent possesses either actual or
apparent authority to act on the principal’s behalf: “actual
authority refers to the power of an agent to act on his princi-
pal’s behalf when that power is created by the principal’s
manifestation to him. That manifestation may be either
express or implied.” Id. (quoting Commc’n Workers Local
9431 (Pacific Bell), 304 N.L.R.B. 446 n.4 (1991)).
Petitioner has presented evidence from which the Board
will likely conclude and the Ninth Circuit will affirm that
PBHM was simply acting as Respondents’ agent for purposes
of negotiating the CBA. Respondents, through the MA, gave
PBHM express authority to negotiate a CBA with the Union.
Despite the MA’s assertion that PBHM “is an independent
contractor, and nothing in this Agreement or in the relation-
ship of [Respondents and PBHM] shall constitute a partner-
ship, joint venture, agency, or other similar relationship,”
Respondents retained ultimate control over the negotiations.
Specifically, the MA required PBHM to obtain Respondents’
approval prior to entering into any CBA:
Operator shall obtain Owner’s approval of any
agreement affecting the Hotel (i) the term of which
is more than one (1) year in length and that cannot
be terminated upon thirty (30) days’ notice by Oper-
ator, or (ii) if the cost to the Hotel under that agree-
ment exceeds Three Hundred Fifty Thousand Dollars
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9933
($350,000.00), or (iii) that extends beyond the Initial
Term and cannot be terminated upon thirty (30)
days’ notice by Operator.
Section 3.2.c of the MA effectively gave Respondents veto
power of any proposed CBA between PBHM and the Union-
given the long term negotiations with the Union, PBHM was
not interested in a CBA for less than one year because it
“would hardly give [PBHM] . . . a[ ] stable period to develop
relationships with the employees and [ ] to operate the busi-
ness.” Additionally, a one-year collective bargaining agree-
ment would cost the Hotel more than $350,000, requiring
Respondents’ approval.
Indeed, despite Minicola’s and PBHM’s outward state-
ments to the Union that HTH was no longer operating the
Hotel, PBHM worked under the assumption that Koa—as the
Hotel’s “owner”—must approve any CBA between PBHM
and the Union. For example, both Wilinsky and Rand sent let-
ters to Respondents, seeking Koa’s approval on proposals to
the Union, which PBHM believed would result in a CBA.
Wilinsky explained to [the Hotel’s owner] that “[PBHM] can-
not bargain in good faith with the Union until and unless [it]
receive[s] [Koa’s] consent.”3
In opposition, Respondents suggest that the MA was a
“typical management agreement” under which PBHM oper-
ated as the owner and employer at the Hotel. The court rejects
this argument. While Respondents may have hoped to create
the appearance that PBHM was . . . the . . . employer, the MA
was not “typical” but rather allowed Respondents to retain
control over the Union negotiations, creating the principal-
agent relationship described above.
3
The court’s conclusion is confirmed by Respondents’ decision to can-
cel the MA only four days after PBHM sought their approval of contract
terms that would have resulted in a CBA. As explained below, it appears
that Respondents canceled the MA to prevent the Union from learning of
its role in negotiations.
9934 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
In sum, the record supports that while Respondents cer-
tainly attempted to distance themselves from the Union nego-
tiations by using PBHM as the “official” operator of the
Hotel, PBHM’s control was illusory because Respondents
held the ultimate authority over Union negotiations. Accord-
ingly, the Board will likely find and the Ninth Circuit will
affirm that the MA did not vest to PBHM Respondents’
employer status but instead merely made PBHM Respon-
dents’ agent.
The court recognizes that the ALJ did not make an agency
determination and instead found that Respondents were the
“true” employers of the Hotel employees. The ALJ’s “true
employer” language does not change the court’s analysis.
Petitioner alleged in its Conformed Complaint that PBHM
served as Respondents’ agent within the meaning of 29
U.S.C. § 152(13) for the purposes of engaging in collective
bargaining with the Union and operating the Hotel. Further,
implicit in the ALJ Decision’s finding that Respondents were
the true employers is that PBHM was acting on Respondents’
behalf during this time period. Given that Petitioner seeks a
limited cross-appeal seeking an agency determination, the
court finds that on the record presented, the Board will likely
make and the Ninth Circuit will affirm this determination.
ii. Respondents’ bad faith bargaining during this time period
On August 3, 2007—four days after PBHM sought its
approval of contract terms which would have resulted in a
CBA—Respondents canceled the MA with PBHM. Based
upon the record presented, Petitioner asserts that Respondents
never had any intention of allowing PBHM to enter into a
CBA with the Union and canceled the MA to prevent Respon-
dents from having to reject the proposed CBA and/or disclose
its veto power over the CBA to the Union. The court agrees
that the Board will find and the Ninth Circuit will affirm that
Respondents engaged in bad faith bargaining over this time
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9935
period by having PBHM negotiate with the Union while at the
same time knowing that it would never approve any CBA.
The evidence establishes that Minicola clearly did not want
a CBA with the Union, much less any Union presence at the
Hotel. During initial negotiations, Minicola told PBHM that
[the Hotel’s owner] was upset with the employees for voting
for the Union, and that Respondents would move to decertify
the Union at the end of the certification year in 2006. Rather
than move to decertify the Union, Respondents entered into
the MA with PBHM, who was well aware that Minicola was
“very unhappy” with the concept of a CBA.
The terms of the MA required that it be kept confidential,
and the Union was not aware of its language giving Respon-
dents veto power over a CBA. PBHM nonetheless negotiated
with the Union and by June 29, 2007, the parties were close
to entering into an agreement with only “a few issues out-
standing.” Respondents were aware that a CBA was imminent
—PBHM told Respondents of this progress and even
requested direction given its understanding that Respondents
did not want a finalized CBA. By letter dated July 30, 2007,
PBHM asked Koa, as “owner” under the MA, to consent to
PBHM providing the MA’s contract approval provision to the
Union (along with other provisions as well), and that Koa
approve 11 specific proposals for the CBA. PBHM explained
that if it made these 11 proposals, the Union would accept
them and the parties would likely enter into a CBA. PBHM
further asserted that if Respondents refused to consent,
Respondents would be in breach of the MA and that PBHM
would no longer be able to bargain in good faith with the
Union. PBHM received no response from Respondents.
Instead, on August 3, 2007, Respondents terminated the MA,
effective December 30, 2007.
At the time Respondents canceled the MA, they were faced
with some hard decisions regarding PBHM and the Union.
They could reject PBHM’s proposals and allow PBHM to dis-
9936 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
close the MA’s contract approval provision to the Union, but
then the Union would know of Respondents’ involvement and
authority on Union negotiations. Alternatively, Respondents
could have approved the proposals, but then the Union would
be on the verge of a CBA—the very result Respondents had
been trying to avoid since negotiations began in 2006. The
third alternative—to cancel the MA and purport to take over
the Hotel operations as a new employer—avoided both of
these results. Given the facts presented, it appears that
Respondents canceled the MA simply to derail the final stages
of the Union negotiations and prevent the Union from learn-
ing of its role in negotiations over this time period. Accord-
ingly, the Board will likely find and the Ninth Circuit will
affirm that Respondents engaged in bad faith bargaining dur-
ing this time period.
In opposition, Respondents provide no explanation why
they terminated the MA except for a vague reference to “per-
formance issues,” which, from the record, may refer to
PBHM’s delay in installing Stellex, PBHM’s failure to keep
occupancy rates up, PBHM’s changes to projected perfor-
mance figures, disputes over fees and commissions, and the
fish deaths in the aquarium. The record does not support that
these excuses are valid reasons for terminating the MA.
As to the delay in installing Stellex, Outrigger’s proprietary
property management and reservation system, it was eventu-
ally installed and properly operating within the Hotel by May
2007. Further, Minicola had worked at Outrigger for 15 years
and was familiar with the Stellex system, such that he should
have anticipated that installing Stellex takes significant effort.
As to PBHM’s projected occupancy rate and performance
figures, Respondents asserted before the ALJ that PBHM did
not perform up to par with its projections, yet Minicola testi-
fied that the decline in the Hotel’s occupancy was in part due
to the decline in the tourism economy. Moreover, Wallace
explained during the time PBHM was managing the Hotel,
FRANKL v. HTH CORPORATION; KOA MANAGEMENT 9937
profits “were in excess of [PBHM’s] projections and consid-
erably in excess of the prior year’s operations.”
As for PBHM’s changes to projected performance figures,
the MA required PBHM to submit a formal budget to Respon-
dents within 90 days of the start of its management of the
Hotel. PBHM submitted a preliminary budget in a timely
fashion, and Respondents approved PBHM’s request to
extend the time allotted to PBHM to prepare a formal budget,
allowing PBHM enough time to acquire knowledge of how
the property operates. Once PBHM finished its formal budget,
PBHM revised its projected performance figures to take into
account the formal budget. These changes were therefore in
line with basic budgeting principles and not a basis for termi-
nation.
Regarding the fees and commissions, Respondents and
PBHM had disagreements regarding the 1.5% chain service
fee PBHM proposed to charge Respondents for providing ser-
vices to the Hotel and the 2.5% commission Respondents
wanted to charge PBHM on all Japanese wholesale business.
The parties resolved these disputes, however, with Respon-
dents accepting the 1.5% charged to the Hotel after PBHM
explained the basis for this charge, and PBHM continuing to
pay the 2.5% commission to Respondents.
Finally, as for the dead fish in the aquarium, it is unclear
whether Respondents truly assert this problem as a reason for
terminating the MA because Minicola did not identify it as a
reason in his affidavit before the ALJ. In any event, PBHM
apparently addressed this issue by meeting with the chief
engineer to stabilize the oxygen in the tank and replacing the
dead fish.
In sum, Respondents’ alleged reasons for terminating the
MA are unsupported. The Board will likely find and the Ninth
Circuit will affirm that Respondents engaged in bad faith bar-
gaining by allowing PBHM to negotiate with the Union while
9938 FRANKL v. HTH CORPORATION; KOA MANAGEMENT
at the same time knowing that they would never approve a
CBA, and then canceling the MA simply to derail the negotia-
tions between the Union and PBHM and hide their position as
Hotel employer.