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

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 29 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITE HERE! LOCAL 878, AFL-CIO, No. 21-70388
Petitioner, NLRB Nos. 19-CA-193656
19-CA-193659
v. 19-CA-203675
19-CA-212923
NATIONAL LABOR RELATIONS 19-CA-212950
BOARD, 19-CA-218647
19-CA-228578
Respondent.
MEMORANDUM*
NATIONAL LABOR RELATIONS No. 21-70700
BOARD,
NLRB Nos. 19-CA-193656
Petitioner, 19-CA-193659
19-CA-203675
LOCAL 878, 19-CA-212923
19-CA-212950
Intervenor, 19-CA-218647
19-CA-228578
v.
CP ANCHORAGE HOTEL 2, LLC, D/B/A
Hilton Anchorage,
Respondent.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted July 8, 2022
Portland, Oregon
Before: R. NELSON and LEE, Circuit Judges, and RAKOFF,** District Judge.
UNITE HERE! Local 878, AFL-CIO (the “Union”) petitions for review of
the decision and order of the National Labor Relations Board (“NLRB” or “the
Board”) issued on February 10, 2021, against CP Anchorage Hotel 2, LLC d/b/a
Hilton Anchorage (“Hilton”). While finding that Hilton violated §§ 8(a)(1) and
8(a)(5) of the National Labor Relations Act (“NLRA”)1 by engaging in various
unlawful behaviors, the Board dismissed the Union’s allegations of unlawful
surveillance and unilateral change involving a purported increase in management
presence in Hilton’s cafeteria—where the union representatives typically met with
employees—in February 2017. The Board brings an application for enforcement
of the order. We have jurisdiction under 29 U.S.C. § 160. We deny the Union’s
petition for review and grant the Board’s application for enforcement.
“Decisions of the NLRB will be upheld on appeal if the findings of fact are
supported by substantial evidence and if the agency correctly applied the law.”
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
1
29 U.S.C. §§ 158(a)(1), 158(a)(5).
2
Loc. Joint Exec. Bd. of Las Vegas (“LJEB”) v. NLRB, 515 F.3d 942, 945 (9th Cir.
2008) (“LJEB I”). “[W]e may not ‘displace the NLRB’s choice between two fairly
conflicting views, even though [we] would justifiably have made a different choice
had the matter been before [us] de novo.’” Sever v. NLRB, 231 F.3d 1156, 1164
(9th Cir. 2000) (last two alterations in original). Where, as is the case here, the
Board adopts the decision of the Administrative Law Judge (“ALJ”) in relevant
part as its own, “we . . . review the ALJ decision, as affirmed by the Board, as the
Board decision.” Transbay Container Terminal v. U.S. Dep’t, Lab. Benefits Rev.
Bd., 141 F.3d 907, 910 (9th Cir. 1998).
1. “An employer violates section 8(a)(5) [and (1)] by making any
unilateral changes to the mandatory bargaining subjects covered by section 8(d),”
namely wages, hours, and other terms and conditions of employment. LJEB v.
NLRB, 540 F.3d 1072, 1078 (9th Cir. 2008) (“LJEB II”). For the purposes of this
rule, a “past practice [may] become[] a term and condition of employment that
cannot be changed without first notifying and bargaining with the union to
agreement or good faith impasse.” Frankl ex rel. NLRB v. HTH Corp., 693 F.3d
1051, 1064 (9th Cir. 2012). The ALJ dismissed the allegation that Hilton
unilaterally changed management presence in the cafeteria in February 2017 based
on the finding that employees and managers were often simultaneously present in
the cafeteria, including during the times when union representatives visited
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employees. Specifically, the ALJ credited testimony showing that at least five
managers regularly visited the cafeteria while union representatives were there
both before and after February 2017. The evidence thus provides substantial
support to the ALJ’s finding that there was no “past practice or reasonable
expectation that the Union would be able to meet with employees in the cafeteria at
the exclusion of management.” Accordingly, we affirm the Board’s dismissal of
the unilateral-change allegation.
2. Section 8(a)(1) of the NLRA states that “[i]t shall be an unfair labor
practice for an employer . . . to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 157 of this title.” 29 U.S.C.
§ 158(a)(1). “The Board has interpreted Section 8(a)(1) to make observation of
union activity unlawful, ‘if the observation goes beyond casual and becomes
unduly intrusive.’” LJEB I, 515 F.3d at 945 (quoting Kenworth Truck Co., Inc.,
327 N.L.R.B. 497, 501 (1999)). Based on the finding that there was no unusual
increase in management presence in the cafeteria on or after February 2017, the
ALJ concluded there was nothing “out of the ordinary” about the management
presence in the cafeteria beginning in February 2017 so as to create an impression
of surveillance. Because the evidence provides substantial support for this finding,
we also affirm the ALJ’s dismissal of the surveillance allegation.
3. “[W]here the Board has acted properly within its designated sphere,
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the court is required to grant enforcement of the Board’s order.” NLRB v. Warren
Co., 350 U.S. 107, 112 (1955). Hilton does not challenge the Board’s findings of
unfair labor practices and concedes that the Board is within its statutory authority
in seeking to enforce its order. Nevertheless, Hilton urges the Court to refuse to
enforce the Board’s order, citing out-of-circuit decisions holding that a court can
“decline to enforce a Board order if the action sought in the order is unnecessary or
futile.” NLRB. v. Greensboro News & Rec., Inc., 843 F.2d 795, 798 (4th Cir.
1988). This Court has never recognized such an exception to the enforcement of a
Board order. But, even if such an exception exists, it does not apply here. Hilton
argues that the order is unnecessary given that it previously agreed to settle certain
charges against it. But the settlements cited by Hilton have never been finalized
and omit some of the order’s remedial requirements.
Hilton also argues that the Board is equitably estopped from seeking
enforcement in light of an email from an NLRB compliance officer stating
“compliance will be held until [the Court] rules on the Petition for Review.” Even
assuming the Board may be equitably estopped, estoppel requires a showing of
“detrimental reliance,” Corbello v. Valli, 974 F.3d 965, 978 (9th Cir. 2020), which
Hilton has not made. The Board is thus entitled to summary enforcement of its
order.
PETITION DENIED, APPLICATION GRANTED.
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