CP Anchorage Hotel 2, LLC v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2024 Decided April 9, 2024

No. 23-1029

CP ANCHORAGE HOTEL 2, LLC,

D/B/A HILTON ANCHORAGE,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 23-1039

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Maurice Baskin argued the cause for petitioner. With him

on the briefs was Emily Carapella.

Kellie Isbell, Attorney, National Labor Relations Board,

argued the cause for respondent. With her on the brief were

Jennifer A. Abruzzo, General Counsel, Peter Sung Ohr, Deputy

General Counsel, Ruth E. Burdick, Deputy Associate General

Counsel, David Habenstreit, Assistant General Counsel,

Milakshmi V. Rajapakse, Supervisory Attorney, and Jared D.

Cantor, Senior Attorney.

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Before: KATSAS and GARCIA, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: This case involves an

unfair labor practice charge filed with the National Labor

Relations Board (“Board” or “NLRB”) by Unite Here! Local

878, AFL-CIO (“Union”), charging CP Anchorage Hotel 2,

LLC d/b/a Hilton Anchorage (“Company”) with violations of

the National Labor Relations Act (“Act”). The Union

represents the hotel’s housekeepers for purposes of collective

bargaining. The dispute between the Company and Union arose

in 2018, when the Company substantially renovated the hotel,

including replacing the old bathtub showers in about half of the

hotel guest rooms with walk-in, glass-walled showers. After

the renovations were largely complete, the Company

unilaterally required the housekeepers to meet the same room-

cleaning work quotas that were in place before the renovations,

even though the housekeepers claimed that the rooms were

harder to clean and involved different work skills and

equipment. The Company also threatened to discipline

housekeepers for failing to meet the more difficult room-

cleaning quotas.

The Union filed an unfair labor practice charge with the

Board challenging the unilateral actions taken by the Company

insofar as the actions affected bargaining unit employees. The

Board’s General Counsel issued a Complaint, charging the

Company with violating Sections 8(a)(1) and 8(a)(5) of the

Act. See 29 U.S.C. § 158(a)(1), (5). After a hearing before an

Administrative Law Judge (“ALJ”), the Board found that the

Company had committed unfair labor practices by: (1) failing

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to provide the Union with requested information relevant to

bargaining; (2) unilaterally changing its housekeepers’ duties

when it increased the work required per room but maintained

the same room-cleaning quota; and (3) threatening its

housekeepers with discipline if they failed to comply with the

increased workload requirements. See CP Anchorage Hotel 2,

371 N.L.R.B. No. 151, at *3 (Sept. 29, 2022) (“Board

Decision”). The Board ordered the Company to rescind the

unlawful changes to the housekeepers’ working conditions to

the full degree practicable and to make the housekeepers whole

for any loss of earnings from the Company’s unlawful conduct.

Id. at *10.

In its petition for review to this court, the Company’s

principal claim is that “decisions like the renovation decision

at issue here do not require bargaining with a union.” Brief

(“Br.”) of Petitioner 12. But on the facts of this case, the

Company had an obligation to give the Union at least a

meaningful opportunity to bargain, regardless of whether the

changes to the housekeepers’ duties were better thought of as a

separate decision regarding the conditions of employment or as

merely the effect of a business decision about what kinds of

rooms to offer hotel customers. A more apt summary of this

case is found in the brief submitted on behalf of the Board:

Although the Company had no obligation to bargain

with the Union over its choice to renovate the hotel, it

had an obligation to provide information to the Union

about the renovations—so that the Union could evaluate

possible impacts on its members—and to bargain over

increases in employee workloads following the

renovations. Substantial evidence supports the Board’s

findings that the Company failed to meet these

obligations, thus violating the Act, and then committed

a further unfair labor practice by threatening employees

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with discipline for failing to comply with their

unilaterally increased workloads.

Br. for the NLRB 14. We agree. Accordingly, we deny the

petition for review and grant the Board’s cross-application for

enforcement of its order.

I. BACKGROUND

A. Factual Background

The Company operates a full-service hotel in Anchorage,

Alaska. The hotel consists of about 600 rooms across two

towers, the Anchorage Tower and the West Tower. During the

relevant period, the Union represented a bargaining unit that

included housekeepers, housepersons, and housekeeping

inspectors. Since 2016, the housekeepers have been required to

clean a quota of 17 rooms per eight-hour shift, with a few

exceptions, depending on the types of rooms and how far the

housekeepers have to travel within the hotel to clean them.

Housekeepers exceeding the quota receive a bonus of $4.95 per

extra room cleaned.

On February 26, 2018, the Company began renovations to

the hotel. Among the changes, the Company replaced the

showers in about 300 rooms, or around half of the hotel’s guest

rooms. The old showers were comprised of bathtubs with fabric

shower curtains and inner liners, whereas the new showers

were walk-in with glass doors. The Company also added new

furniture to the rooms. Sofa beds, previously an amenity found

only in suites, were added to more rooms, including most

rooms with king-sized beds in the West Tower. In addition, the

Company replaced all pillows with new ones that were heavier

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and longer, and added an extra pillow for each double-sized

bed.

As a result of these changes, the renovated rooms posed

cleaning duties that differed from the cleaning work involved

in the unrenovated rooms. To clean the old showers,

housekeepers sprayed the bathtub curtains and liners with a

cleaning solution and then wiped them. If a curtain or liner was

dirty, a housekeeper would tie it in a knot and a houseperson

would replace it. In contrast, housekeepers must keep the new

glass-walled showers streak-free by removing smudges and

water marks. To achieve this, housekeepers use squeegees or

rags to clean both sides of the new glass panels, including the

tracks underneath the sliding door and the narrow area where

the sliding door overlaps with the stationary panel. The

housekeepers must also remove and clean the newly installed,

grated metal drain covers. In addition to the renovated showers,

the new furniture in the rooms also affected the housekeepers’

cleaning tasks. When guests use sofa beds, which are now in

more rooms post-renovation, housekeepers must remove the

bed linens and fold the mattress back into the sofa.

Housekeepers also need to change more pillows in guest rooms

with double-sized beds than before, as well as handle heavier

and longer pillows in all of the rooms.

On February 28, 2018, two days after renovations began,

the Union sent an information request to the Company. This

first information request asked for a description of the

renovation work to be performed, the anticipated or actual start

and completion dates, and whether there would be any change

in work requirements for Union-represented employees. On

March 6, 2018, the Company replied that the number of glass-

walled showers was “to be determined,” claimed “[t]here

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should be no changes in work requirements based on the

renovation,” and estimated a completion date of May 31, 2018

for renovations in the West Tower. Joint Appendix (“J.A.”)

255-56.

On June 19, 2018, with the renovations still ongoing, the

Union inquired again about the expected date of completion. In

addition, the Union asked “which guestrooms underwent

changes to walk-in showers,” as well as the measurements of

the glass in the new showers so that the Union could

“determine the impact on housekeeper workload.” J.A. 267. On

July 2, 2018, having received no response, the Union repeated

its request. The next day, the Company replied that the

projected completion date for renovations in both towers was

approximately December 31, 2018, that “[n]o rooms ha[d] been

converted yet to showers,” and that it was “still being

determined which rooms [would] receive the showers.” J.A.

269. On July 6, 2018, the Company supplemented its answers

with a photograph of a walk-in, glass-walled shower and its

measurements.

On November 20, 2018, the Union sent a third request for

information to the Company. In relevant part, the Union asked

which rooms or floors would be or had been converted to glass-

walled showers, what classifications of employees would clean

the glass doors, what tools the Company considered

appropriate for cleaning the glass doors, and what training, if

any, would be conducted with respect to the new showers. The

Union further added that, in its experience, “the introduction of

glass shower doors has a material impact on the workload of

housekeepers due to the increased physical demands involved

with the task, the difficulty of cleaning glass without leaving

water spots, and the impact upon work rate owing to the

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introduction of a more time-consuming work process.” J.A.

337. The Union requested time-and-motion studies “before any

housekeeper is required to engage in this task” and to meet and

“confer” with the Company about the requested studies and the

housekeepers’ workload. Id.

On December 6, 2018, a Company representative

responded that renovations to the West Tower were completed

on November 5, 2018, and that renovations to the Anchorage

Tower began on September 24, 2018. On January 4, 2019, the

Company representative supplemented his response, stating

that “approximately 300 showers” would be renovated

“throughout both towers,” “[s]taff [were] expected to clean the

glass shower doors,” “[v]arious cleaning products and tools”

would be provided, and the Company “d[id] not believe it

[took] staff more time to clean rooms with walk-in showers

than . . . rooms with bathtubs.” J.A. 339-40. The Company

representative did not respond to the Union’s question about

training, but he did express a willingness to “meet to discuss

any information or concerns the Union or staff may have.” Id.

In February 2019, three housekeepers complained to the

Company that it was unfair they had to clean 17 rooms with

glass-walled showers, when some other housekeepers were not

meeting their quotas. In response, the Company convened the

housekeepers and instructed the housekeepers to sign and date

a document reminding them of their room-cleaning quota and

notifying them that failure to comply could result in discipline,

up to and including termination. About a month later, a group

of housekeepers met with the Union and the Company to voice

concerns regarding the changed work duties. The housekeepers

shared that the glass-walled showers were harder to clean, and

that cleaning the new showers caused them physical pain.

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Some also asserted that the number and size of the new pillows

made it harder to meet their quota. A Company representative

replied that it would take time to get used to the changes, and

that the housekeepers would receive training and new tools.

There is no evidence in the record that any training was

provided.

B. Procedural History

On September 20, 2019, after investigating an unfair labor

practice charge filed by the Union, the Board’s General

Counsel issued a Complaint against the Company. The

Complaint alleged that the Company violated Sections 8(a)(1)

and (5) of the Act by: (1) failing to furnish requested

information to the Union; and (2) changing housekeepers’

duties by requiring the housekeepers to satisfy the existing

room-cleaning quota despite the increased time needed to clean

the renovated rooms, without first bargaining over the decision

or its effects. The Complaint also alleged that the Company

violated Section 8(a)(1) of the Act by threatening employees

with discipline for failing to meet their cleaning quotas.

Following a hearing, an ALJ found that the Company violated

the Act as alleged.

On September 29, 2022, over a dissent, the Board agreed

with the ALJ that the Company violated Sections 8(a)(1) and

(5) of the Act “by changing the housekeepers’ duties by

requiring them to spend more time per room while still meeting

the same room-cleaning quota without bargaining with the

Union, and by failing to provide relevant information to the

Union, requested on November 20, 2018.” Board Decision, at

*3. The Board reasoned that the “additional new bed-making

tasks, combined with changing the numerous, heavier, and

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longer new pillows and cleaning the renovated glass showers,”

caused housekeepers to “work harder and spend more time

cleaning the renovated rooms.” Id. at *2. The Board majority

also affirmed the ALJ’s determination that the Company

violated Section 8(a)(1) “by threatening housekeepers with

discipline for failing to comply with an increased workload,

implemented through unlawful unilateral changes.” Id. at *8.

To remedy the violations, the Board ordered the Company to

rescind the unlawful changes to the housekeepers’ working

conditions to the full degree practicable and compensate the

housekeepers for any loss of earnings, including a decrease in

bonuses from extra rooms cleaned. Id. at *9-10. The Board then

denied the Company’s motion for reconsideration. On

February 3, 2023, the Company petitioned this court for review

of the Board’s orders, challenging all of the Board’s unfair

labor practice findings and the remedy. On February 17, 2023,

the Board filed a cross-application for enforcement.

II. ANALYSIS

A. Standard of Review

We review an NLRB decision “deferentially.” Windsor

Redding Care Ctr., LLC v. NLRB, 944 F.3d 294, 299 (D.C. Cir.

2019). “We must uphold the judgment of the Board unless,

upon reviewing the record as a whole, we conclude that the

Board’s findings are not supported by substantial evidence, or

that the Board acted arbitrarily or otherwise erred in applying

established law to the facts of the case.” Wayneview Care Ctr.

v. NLRB, 664 F.3d 341, 348 (D.C. Cir. 2011) (quoting Mohave

Elec. Coop., Inc. v. NLRB, 206 F.3d 1183, 1188 (D.C. Cir.

2000)). A Board finding is supported by substantial evidence

so long as “a reasonable mind might accept a particular

evidentiary record as adequate to support a conclusion.”

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Dickinson v. Zurko, 527 U.S. 150, 162 (1999) (quotations

omitted). To set aside a Board’s decision, we must find the

record “so compelling that no reasonable factfinder could fail

to find to the contrary.” Ozburn-Hessey Logistics, LLC v.

NLRB, 833 F.3d 210, 217 (D.C. Cir. 2016) (quoting Bally’s

Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011)).

B. Information Requests

“There can be no question of the general obligation of an

employer to provide information that is needed by the

bargaining representative for the proper performance of its

duties.” NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36

(1967). Information “pertaining to wages, hours or conditions

of employment” of employees in the bargaining unit “is

presumptively relevant, and must be disclosed unless the

employer proves a lack of relevance.” Oil, Chem. & Atomic

Workers Loc. Union No. 6-418 v. NLRB, 711 F.2d 348, 359

(D.C. Cir. 1983) (emphasis and quotation omitted). The

Company does not dispute that “the requests at issue pertain

directly to the housekeepers’ daily work of cleaning the hotel’s

guest rooms and are therefore presumptively relevant.” Board

Decision, at *27. Rather, the Company contends that it

“provided enough information to substantially comply with the

information request.” Br. of Petitioner 47 (quotation omitted).

We disagree.

Substantial evidence supports the Board’s determination

that the Company failed to provide the Union with the

requested information needed to meaningfully bargain. As the

Board reasonably found, the Company failed to adequately

answer the Union’s queries regarding which rooms or floors

would have glass-walled showers; the classifications of

employees who would clean the glass doors; the appropriate

tools to clean the glass doors; and what training, if any, would

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be provided with respect to cleaning. Board Decision, at *5. In

response to the Union’s information request, the Company

vaguely answered that showers would be renovated

“throughout both towers”; “[s]taff [would be] expected to clean

the glass shower doors”; and “[v]arious cleaning products and

tools” would be made available. J.A. 340. And the Company

provided no response to the training inquiry. The Union had

clearly expressed concerns to the Company that the glass

shower doors could have “a material impact on the workload

of housekeepers.” J.A. 337. The record supports the Board’s

determination that the Company’s failures to respond to the

Union’s queries fell short of providing the Union with

information it needed to understand the new work

arrangements contemplated by the Company so as to allow the

Union to effectively bargain on behalf of unit employees.

C. Unilateral Change to Housekeepers’ Duties

Although parties to collective bargaining agreements may

bargain over any legal subject, Congress has imposed on

employers and unions a “mandate or duty to bargain [only on]

matters of ‘wages, hours, and other terms and conditions of

employment.’” First Nat’l Maint. Corp. v. NLRB, 452 U.S.

666, 674 (1981) (quoting Section 8(d) of the Act, 29 U.S.C.

§ 158(d)). Before an employer changes a condition of

employment, it must first “notify[] the Union of the proposed

change, offer[] to bargain, and bargain[] with the Union in good

faith concerning the change.” Teamsters Loc. Union No. 171 v.

NLRB, 863 F.2d 946, 954 (D.C. Cir. 1988). An employer may

not “unilaterally chang[e] an existing term or condition of

employment without first bargaining to impasse,” Regal

Cinemas, Inc. v. NLRB, 317 F.3d 300, 309 (D.C. Cir. 2003), for

“a circumvention of the duty to negotiate . . . frustrates the

objectives of § 8(a)(5) much as does a flat refusal,” NLRB. v.

Katz, 369 U.S. 736, 743 (1962). However, “not every minor

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unilateral change in working conditions constitutes an unfair

labor practice.” Microimage Display Div. of Xidex Corp. v.

NLRB, 924 F.2d 245, 253 (D.C. Cir. 1991). “[T]he change in

working conditions must be material, substantial and

significant,” id. (quotation omitted), which the Board’s General

Counsel must establish, N. Star Steel Co., 347 N.L.R.B. 1364,

1367 (2006).

Substantial evidence supports the Board’s findings that,

after permissibly deciding on its own to complete major

renovations to its hotel, the Company then violated its duty to

bargain by unilaterally increasing housekeepers’ workload

while retaining the same room-cleaning quota. See Board

Decision, at *4. The parties debate over whether this case

concerns a decision by the Company to change housekeepers’

workload by keeping the pre-renovations quota despite an

increase in work required per room, or whether it concerns an

effect of the permissible renovations that resulted in a higher

workload when the housekeepers’ room quota remained

unchanged. According to the Company, this distinction matters

because decision bargaining would require that the Company

notify and bargain with the Union over any decision to

materially change housekeepers’ workload, whereas effects

bargaining requires only that the Company notify the Union of

the permissible renovations and bargain upon the Union’s

request over the effects. The Company also contends that

effects-bargaining violations do not support the recission and

make-whole remedy ordered by the Board. On the record

before us, the Company is wrong on all counts.

As a preliminary matter, the Board contends that we do not

have jurisdiction to entertain the Company’s so-called effects-

bargaining argument. We disagree. Section 10(e) of the Act

limits this court’s jurisdiction by providing that “[n]o objection

that has not been urged before the Board . . . shall be considered

13

by the court” absent “extraordinary circumstances.” 29 U.S.C.

§ 160(e). Here, the Company raised an effects-bargaining

argument with the Board. The ALJ’s analysis framed the

housekeepers’ increased workload as both a decision by the

Company to “[u]nilateral[ly] [c]hange” housekeepers’ duties,

Board Decision, at *27, as well as an “impact[]” of the

renovations, id. at *27 n.19. The Company’s exceptions before

the Board, in turn, argued that the Company did not fail to

notify the Union of and allow bargaining over the “impact” of

the renovations on the housekeepers’ work. J.A. 381. The

Board then assessed the case both as a decision by the

Company to change housekeepers’ duties, see Board Decision,

at *4, and as an effect of the renovations on housekeepers’

duties, see id. at *4-6. Since the Company viewed the case as

one concerning only the impact of its renovations, and because

the Board duly considered the effects-bargaining issue, we

have jurisdiction to entertain the claim.

However, even though the Company has not forfeited its

so-called effects-bargaining challenge, given the record in this

case, the distinction between decision and effect is of no real

consequence here. Even in an effects-bargaining case, an

employer must still provide the Union with pre-implementation

notice and an opportunity to bargain over any material changes

to working conditions, see 800 River Rd. Operating Co., LLC

d/b/a Care One at New Milford, 369 N.L.R.B. No. 109, at *9

& n.23 (Jun. 23, 2020), enf’d. 848 Fed. Appx. 443 (D.C. Cir.

2021), provided the employer could have reasonably foreseen

the changes to the workload, see 11 West 51 Realty LLC d/b/a

The Jewel Facing Rockefeller Center, 371 N.L.R.B. No. 83, at

*3 (May 27, 2022), and provided the Union demands

bargaining after receiving timely notice of the proposed

changes, see Berklee Coll. of Music, 362 N.L.R.B. 1517, 1518

(2015).

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Therefore, whether this case is framed as concerning a

decision or an effect, the simple point is that the Company’s

major renovations resulted in changes in the housekeepers’

terms and conditions of employment that were subject to

collective bargaining. Ample evidence supports the Board’s

findings that the changes were material, substantial, and

significant, as well as reasonably foreseeable. See Board

Decision, at *1, *27 & n.18 (adopting ALJ’s findings that

cleaning glass-walled showers was more physically difficult

and time-consuming, and that the extra pillows and the addition

of sofa beds further added to the cleaning time); id. at *4 n.10

(finding that Company could have reasonably anticipated

bargainable changes in workload resulting from the

“substantial renovations”). Given the material changes in

housekeepers’ terms and conditions of employment, settled

Board law mandates that the Company should have “notif[ied]

the Union of the proposed change” and, should the Union wish

to bargain, “bargain[] with the Union in good faith.” Teamsters

Loc. Union No. 171, 863 F.2d at 954. Yet, the Company did

not do so.

As the Board found, and the record supports, the Company

failed to give timely notice of the changes sufficient to allow

for bargaining over the Company’s decision to keep the pre-

renovation quota despite the renovations’ effects on workload.

The Company did not notify the Union of the number of

renovated showers until 10 months after the Union’s request

for this information, and almost two months after the Company

had already completed renovations in one of the towers. See

Board Decision, at *5. Yet, “the Union [had] made clear that it

was concerned about the impact on employee workload and

wanted more information from the [Company] in order to

assess that impact.” Id. As the Board reasonably explained,

“[i]t is unreasonable to expect that the Union could have

anticipated the impact on the housekeepers’ workload without

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knowing, at the very minimum, the number of rooms that were

going to be renovated.” Id. at *6. The record therefore supports

the Board’s determination that the Company failed to provide

the Union with sufficient notice about the changes to the

housekeepers’ workload.

The Board also reasonably found that the Union did not

waive its bargaining rights by waiting to respond to the

Company’s answers to its information requests. Because the

Company did not timely notify the Union of the change in

workload, the Union could not be expected to request

bargaining. As the Board points out, not only did the Company

largely refuse to provide the Union with requested information,

but the Company also consistently represented that the

renovations did not increase the workload. Id. at *6.

Given the record in this case, we have no reason to second-

guess the Board’s finding that the Company violated Sections

8(a)(1) and (5) of the Act. The Company had a duty to notify

the Union of any proposed material change to the

housekeepers’ workload, as well as a duty to bargain over the

proposed change should the Union request it. Instead, without

bargaining or giving the Union a meaningful opportunity to

request bargaining, the Company unilaterally required the

housekeepers to perform more work under the same

compensation scheme, in violation of the Company’s duties

under the Act. Because the Board permissibly found that the

Company’s refusal to bargain over the housekeepers’ duties

was unlawful regardless of whether this case involves decision

or effects bargaining, we need not decide the question of which

framing is more appropriate. Cf. First Nat’l Maint. Corp., 452

U.S. at 676-77.

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D. Threats of Discipline

Section 8(a)(1) prohibits an employer from “mak[ing]

statements with a ‘reasonable tendency’ to ‘interfere with,

restrain, or coerce’ an employee’s exercise of his statutory

rights.” Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 641

(D.C. Cir. 2017) (quoting Tasty Baking Co. v. NLRB, 254 F.3d

114, 124 (D.C. Cir. 2001); 29 U.S.C. § 158(a)(1)).

Accordingly, an employer violates Section 8(a)(1) if the

employer threatens an employee with discipline for not

complying with an unlawful, unilaterally implemented change

to his working conditions. See, e.g., Orchids Paper Prods. Co.,

367 N.L.R.B. No. 33, at *2 (Nov. 20, 2018) (finding employer

violated Section 8(a)(1) by “threatening an employee with

discipline for not complying with the unilaterally implemented

flame-resistant clothing policy”); U.S. Postal Serv., 341

N.L.R.B. 684, 696 (2004) (affirming ALJ’s finding that

employer violated Section 8(a)(1) “[b]y threatening discipline

for failure to comply with a unilaterally changed procedure”);

Advanced Installations, Inc., 257 N.L.R.B. 845, 850 (1981)

(affirming ALJ’s finding that employer violated Section

8(a)(1) by “threat[ing] to discharge employees who failed to

observe the unilaterally imposed” payment changes), enf’d.

698 F.2d 1231 (9th Cir. 1982).

Substantial evidence supports the Board’s determination

that the Company violated Section 8(a)(1) of the Act by

threatening housekeepers with discipline if they failed to meet

the original quota after the Company unilaterally increased

their work duties per room. The record reflects that the Union

had expressed concerns to the Company about the difficulty of

cleaning glass-walled showers, and the Union had asked to

confer with the Company before any housekeeper began

cleaning the new showers. The Company instead unilaterally

decided to maintain the same quota. Once cleaning resumed in

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the renovated rooms, several housekeepers then complained to

the Company about unequal workloads resulting from the

renovations. In response, the Company merely convened the

housekeepers and told them “that failure to comply with the

existing quotas would result in discipline, up to and including

termination.” Board Decision, at *8. In sum, the record

supports the Board’s finding that the Company’s response to

the housekeepers’ complaints “can reasonably be interpreted

by an employee as a threat.” PruittHealth-Virginia Park, LLC

v. NLRB, 888 F.3d 1285, 1295 (D.C. Cir. 2018) (quoting

Smithers Tire & Auto. Testing of Texas, Inc., 308 NLRB 72, 72

(1992)).

E. Remedy

Finally, the Company’s challenge to the Board’s remedy is

meritless. “[T]he Board’s remedial authority is ‘a broad

discretionary one, subject to limited judicial review,’ and a

remedy ‘will not be disturbed unless it can be shown that the

order is a patent attempt to achieve ends other than those which

can fairly be said to effectuate the policies of the Act.’” United

Food & Com. Workers Union Loc. 204 v. NLRB, 447 F.3d 821,

827 (D.C. Cir. 2006) (quoting Fibreboard Paper Prods. Corp.

v. NLRB, 379 U.S. 203, 216 (1964)). In this case, the Board

found recission of the unlawful changes to housekeepers’

duties to the full degree practicable and make-whole relief for

lost bonuses appropriate, on the grounds that the Company’s

bargaining violation adversely affected the housekeepers’

earnings. See Board Decision, at *7. The remedy ordered

clearly was within the Board’s discretion.

The Company has not cited any authority to support the

proposition that cases concerning so-called effects-bargaining

violations mandate a uniform remedy, such as the one the

Company cites from Transmarine Navigation Corp., 170

18

N.L.R.B. 389 (1968). See Br. of Petitioner 33. Indeed, the

Board decision in Transmarine makes it clear that, “[i]n

fashioning an appropriate remedy, . . . the remedy should ‘be

adapted to the situation [which] calls for redress.’”

Transmarine, 170 N.L.R.B. at 389 (quoting NLRB v. Mackay

Radio & Tel. Co., 304 U.S. 333, 348 (1938)). And there is no

doubt that, over the years, the Board has ordered rescission

and/or make-whole relief for effects-bargaining violations

when appropriate. See, e.g., McClatchy Newspapers, Inc. d/b/a

The Fresno Bee, 339 N.L.R.B. 1214, 1216 (2003) (ordering

rescission and make-whole relief and explicitly declining to

rely on the Transmarine remedy); KIRO, Inc., 317 N.L.R.B.

1325, 1329 (1995) (ordering make-whole relief); Natomi

Hospitals of California, Inc. d/b/a Good Samaritan Hospital,

335 N.L.R.B. 901, 904 (2001) (ordering rescission). In sum,

the Board here acted within its remedial discretion when it

ordered recission and make-whole relief to address the

Company’s unfair labor practices.

III. CONCLUSION

For the reasons set forth above, we deny the Company’s

petition for review and grant the Board’s cross-application for

enforcement of its order.

So ordered.