Petition for Writ of Certiorari — Kava Holdings, LLC, dba Hotel Bel-Air, Petitioner v. National Labor Relations Board

Supreme Court briefApr 3, 2024

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No. 23In the

Supreme Court of the United States

KAVA HOLDINGS, LLC, DBA Hotel Bel-Air,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

John R. Hunt

Counsel of Record

A rch Stokes

Stokes Wagner, ALC

One Atlantic Center

1201 W. Peachtree Street NW,

Suite 2615

Atlanta GA 30309

(404) 766-0076

jhunt@stokeswagner.com

Counsel for Petitioner

327980

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

This Court and the National Labor Relations Board

have established a test, in applying 29 U.S.C. § 158(a)

(3) 1 of the National Labor Relations Act (hereinafter

“8(a)(3)”) that allocates the burden of proof in cases in

which it is alleged that an employer has taken an adverse

employment action (failure to hire; discharge; etc.)

because of anti-union animus. The Board has vacillated,

however, as to whether so-called “generalized” evidence of

animus, in the absence of any nexus between such animus

and the adverse action, is sufficient to prove a violation of

Section 8(a)(3).

In some cases, the Board has required a motivational

link or nexus, or particularized motivating animus. In

other cases, including recently, it has expressly rejected

this element. These inconsistent holdings have led to a

split among the federal circuit courts on this issue. The

question presented in this case is:

In a case involving alleged refusals to hire based

on anti-union animus under Section 8(a)(3), may the Board

rely solely on “generalized” animus, when such evidence

is not causally connected to the specific hiring decisions

at issue?

1. “It shall be an unfair labor practice for an employer—…

(3) by discrimination in regard to hire or tenure of employment or

any term or condition of employment to encourage or discourage

membership in any labor organization…”

PARTIES TO THE PROCEEDING

Petitioner is Kava Holdings, LLC d/b/a Hotel BelAir. Respondent is National Labor Relations Board

(Respondent). UNITE-HERE, Local 11 was an Intervenor

below.

iii

CORPORATE DISCLOSURE STATEMENT

Kava Holdings, LLC, d/b/a Hotel Bel-Air, states there

is no parent corporation and there is no publicly held

corporation that owns ten percent or more of its stock.

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related to this

case within the meaning of Rule 14.1(b)(iii):

• Kava Holdings, LLC, No. 31-CA-074675 (N.L.R.B.

Div. of Judges). Opinion issued Dec. 19, 2019.

• Kava Holdings, LLC, d/b/aHotel Bel-Air, 31-CA074675 (NLRB). Decided January 25, 2021.

• Kava Holdings, LLC d/b/a Hotel Bel-Air v. NLRB,

Nos. 21-70225, 70638, 71334 (9 th Cir.). Judgment

entered October 18, 2023.

• Hotel Bel-Air, 358 NLRB 1527 (2012), vacated but

adopted, 361 NLRB 898 (2014).

• Hotel Bel-Air v. National Labor Relations Board,

No. 14-1241 (D.C. Cir.). Judgment issued March 8,

2016.

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . . iii

STATEMENT OF RELATED PROCEEDINGS . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . ix

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . x

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

A. Federal Jurisdiction: Court of Appeals . . . . . . . . 2

B. Introduction: Why This Court Should

Grant Certiorari . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

C. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Table of Contents

Page

D. The NLRB’s Theor y of Generalized

Animus, and the Ninth Circuit’s Approval

of this Standard, is Contrary to Other

Circuits and Earlier NLRB Decisions . . . . . . . . 7

E. The Generalized-Animus Case Presented

by the Board’s General Counsel Failed to

Include Proof of “Particularized Motivating

Animus” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Three Identified Items of Evidence, Relied

Upon by the Board and the Ninth Circuit,

Fail Also to Meet the “Particularized

Motivating Animus” Standard Required

by Other Circuit Courts . . . . . . . . . . . . . . . . . . . 11

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. The Importance of Granting Certiorari

in this Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

B. The Board’s Back-and-Forth Rulings

on Whether Particularized Motivating

Animus Is Required to Be Proven . . . . . . . . . . . 13

C. The Eighth, Seventh and D.C. Circuits, and

Possibly Others – Contrary to the Ninth

Circuit – Require Particularized Motivating

Animus, i.e., a Nexus Linking Animus to the

Adverse Employment Decision at Issue . . . . . . 18

vii

Table of Contents

Page

D. T his Cou r t Should Take This Case

and Adopt a Rule Consistent with the

Eighth, Seventh and D.C. Circuits . . . . . . . . . . . 22

E. The Three Items of Evidence Relied

upon by the Board, and Subsequently by

the Ninth Circuit, to Prove “Generalized

Animus” Do Not Even Rise to That Level,

and Plainly Have No Relationship to

the Hiring Decisions at Issue . . . . . . . . . . . . . . . 24

One Sentence of Testimony by “Human

Resources Generalist” Sandra Arbizu

Cannot Reasonably be Relied Upon

to Attr ibute A nti-Union A nimus

to the Actual Decisionmakers . . . . . . . . . . . 24

2. T h e E x c e p t i o n a l l y L i m i t e d

Examination by the Administrative

L a w Ju d g e o f t h e I n h e r e n t l y

Unreliable Interview Records, and

the Court’s Error in Failing to Review

this Examination, Detract from the

Evidence’s Already Dubious Weight . . . . . 27

3. There is Insufficient Continuity of

Animus Between the First Hotel Case

and the Present Case, and a Lack of

Independent Evidence of Animus in the

Present Case, to Support the Finding

of a Motivational Link or Nexus,

and the Court Below Misunderstood

Key Facts in the First Case . . . . . . . . . . . . 31

viii

Table of Contents

Page

F. The Court of Appeals’ Deference to the Board’s

Decision Was Extreme and Unwarranted . . . . 36

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N IO N O F T H E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT, DATED

OCTOBER 24, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A P P E N DI X B — O P I N ION O F T H E

NATIONAL LABOR RELATIONS BOARD,

FILED JANUARY 25, 2021 . . . . . . . . . . . . . . . . . . 27a

A PPENDI X C — J U DGMEN T OF THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLU MBI A

CIRCUIT, FILED MARCH 8, 2016 . . . . . . . . . . . 101a

APPENDIX D — OPINION AND APPENDIX

OF THE NATIONAL LABOR RELATIONS

BOARD (N.L.R.B.), DATED OCTOBER 31,

2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105a

APPENDIX E — OPINION OF THE NATIONAL

LABOR RELATIONS BOARD (N.L.R.B.),

DATED SEPTEMBER 27, 2012 . . . . . . . . . . . . . . 114a

APPENDIX F — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED JANUARY 4, 2024 . . . . . . . . . . . . . . . . . . 148a

APPENDIX G — STATUTORY PROVISIONS

INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150a

TABLE OF CITED AUTHORITIES

Page

Cases

Air Line Pilots Ass’n, Int’l v.

Guilford Transp. Indus., Inc.,

399 F.3d 89 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 21

Akron Novelty Mfg. Co.,

224 NLRB 998 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . 33

Allentown Mack Sales & Serv., Inc. v. N.L.R.B.,

522 U.S. 359 (1998) . . . . . . . . . . . . . . . . . . . . . 22, 26, 37

AutoNation d/b/a Libertyville Toyota,

360 NLRB 1298 (2014) . . . . . . . . . . . . 15, 16, 17, 18, 20

AutoNation v. NLRB,

801 F.3d 767 (7th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 20

Barnes & Noble,

237 NLRB 1246 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 33

Calhoun v. Bailar Postmaster General,

626 F.2d 145 (9th Cir. 1980) . . . . . . . . . . . . . . . . . . . . 29

Fed. Power Comm’n. v. Texaco,

417 U.S. 380 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

FES, Division of Thermo Power,

331 NLRB 9 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Cited Authorities

Page

Glenn’s Trucking Co. v. N.L.R.B.,

298 F.3d 502 (6th Cir. 2002) . . . . . . . . . . . . . . . . . . . . 21

Great Lakes Chemical v. NLRB,

967 F.2d 624 (D.C. Cir. 1992) . . . . . . . . . . . . . . 9, 23, 30

Henry v. Wyeth Pharmaceutical,

616 F.3d 134 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 26

Hotel Bel-Air,

3 5 8 N L R B 15 2 7 (2 01 2), v a c a t e d b u t

a d o pt ed, 3 61 NLRB 8 9 8 (2 014), af f ’d,

637 Fed. Appx. 4 (D.C. Cir. 2016) . . . . . . . . . . . . . . . . 1

I.N.S. v. Cardoza-Fonseca,

480 U.S. 421 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

In Re Am. Gardens Mgmt. Co.,

338 NLRB 644 (2002) . . . . . . . . . . . . . . . . . . . . . . 15, 17

In Re Mesker Door, Inc.,

357 NLRB 591 (2011) . . . . . . . . . . . . . . . . . . . . . . 15, 16

Intertape Polymer Corp.,

372 NLRB No. 133 (2023) . . . . . . . . . . . . . 8, 14, 17, 23

Kava Holdings, LLC d/b/a Hotel Bel-Air v.

National Labor Relations Board,

85 F.4th 479 (9th Cir. 2023) . . . . . . . . . . . . . . . . . . . . . 1

xii

Cited Authorities

Page

Kava Holdings, LLC d/b/a Hotel Bel-Air,

370 NLRB No. 73 (2021) . . . . . . . . . . . . . . . . . . . . . . . . 1

Kenworth Trucks,

236 NLRB 1299 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 33

Monongahela Power,

324 NLRB 214 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 33

Mt. Clemens,

344 NLRB 450 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . 33

N.L.R.B. v. Materials Transp. Co.,

412 F.2d 1074 (5th Cir. 1969) . . . . . . . . . . . . . . . . . . . 21

Nat’l Sec. Techs. & William F. Brown,

356 NLRB 1438 (2011) . . . . . . . . . . . . . . . . . . . . . . . . 33

Nichols Aluminum v. NLRB,

797 F.3d 548 (8th Cir. 2015) . . . . . . . . . . . . . . 18, 20, 22

NLRB v. CNN America,

361 NLRB 439 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . 30

NLRB v. CNN America,

865 F.3d 740 (D.C. 2017) . . . . . . . . . . . . . . . . . . . . . . . 27

NLRB v. Transportation Management,

462 U.S. 393 (1983) . . . . . . . . . . . . . . . . 13-14, 19, 23, 36

xiii

Cited Authorities

Page

Office of Workers Comp v. Greenwich Colliers,

512 U.S. 267 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 19, 22

Richardson v. Perales,

402 U.S. 389 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

S.E.C. v. Chenery Corp.,

332 U.S. 194 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Southeast Texas Television,

226 NLRB 1340 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 33

Stern Produce v. NLRB,

No. 23-2011 (D.C. Cir., March 26, 2024) . . . . 20, 26, 28

Taft Broadcasting Co.,

163 NLRB 475 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . 32

Tracker Marine, L.L.C.,

337 NLRB 644 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . 15

Tschiggfrie Properties,

365 NLRB No. 34 (2017) . . . . . . . . . . . . . . . . 16, 17, 19

Tschiggfrie Properties,

368 NLRB No. 120 (2019) . . . . . . . . . . . . 16, 17, 18, 20

Tschiggfrie Props. v. NLRB,

896 F.3d 880 (8th Cir. 2018) . . . . . . . . . . . . . . 19, 20, 22

xiv

Cited Authorities

Page

United Transp. Union v. Lewis,

711 F.2d 233 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . 36

Universal Camera Corp. v. NLRB,

340 U.S. 474 (1951) . . . . . . . . . . . . 4, 8, 18, 22, 30, 31, 37

Watt v. Alaska,

451 U.S. 259 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Wright Line,

251 N.L.R.B. 1083 (1980) . . . . . . . . . . . . . . 14, 16, 17, 18

Statutes & Other Authorities

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

29 U.S.C. § 157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

29 U.S.C. § 158(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

29 U.S.C. § 158(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

29 U.S.C. § 158(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

29 U.S.C. § 158(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

29 U.S.C. § 158(a)(3) . . . . . . . . 3, 7, 8, 12, 13, 14, 22, 33, 36

29 U.S.C. § 158(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Cited Authorities

Page

29 U.S.C. § 159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

29 U.S.C. § 160(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

29 U.S.C. § 160(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

29 C.F.R. § 101.10(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

OPINIONS BELOW

The Ninth Circuit’s opinion is reported at Kava

Holdings, LLC d/b/a Hotel Bel-Air v. National Labor

Relations Board, 85 F.4th 479 (9 th Cir. 2023). [App. A,

1a-26a]. Hotel’s motion for rehearing en banc was denied

January 4, 2024. [App. F, 148a-149a].

The NLRB’s opinion is reported at Kava Holdings,

LLC d/b/a Hotel Bel-Air, 370 NLRB No. 73 (2021). [App.

B, 27a-100a].

An earlier Board decision that was relied upon, in the

cases cited above, as providing support for the finding of

animus: Hotel Bel-Air, 358 NLRB 1527 (2012), [App. E,

114a-147a], vacated but adopted, 361 NLRB 898 (2014),

[App. D, 105a-113a], aff’d, 637 Fed.Appx. 4 (D.C. Cir. 2016)

[App. C, 101a-104a].

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1).

The Ninth Circuit issued its decision on October 24,

2023. Hotel’s petition for rehearing en banc was denied

on January 4, 2024. This Petition for Certiorari is timely

filed on April 3, 2024. Supreme Court Rule 13.1, .3.

PROVISIONS INVOLVED

Included in Appendix G, 150a-154a.

29 U.S.C. §157

29 U.S.C. §158(a)(1), (3) and (5)

29 U.S.C. §159

29 U.S.C. §160(f)

STATEMENT OF THE CASE

A. Federal Jurisdiction: Court of Appeals.

The Ninth Circuit Court of Appeals had jurisdiction

in this case under 29 U.S.C. § 160(f).

B. Introduction: Why This Court Should Grant

Certiorari.

This case involves a large-scale hiring upon the reopening of a luxury hotel, following a two-year closure

for renovation, along with changes made to its business

model. All former employees, represented pre-closure

by a union, were invited to apply, and were subject to the

same hiring criteria and process as all others who applied.

For reasons indicated below, the primary criterion for

selection was how well applicants presented themselves

during a three-stage interview process.

Upon re-opening, less than a majority of the former

employees had been hired. The Hotel, consequently,

was no longer able to recognize the Union. 29 U.S.C.

§ 159 (bargaining representatives must be “designated

or selected … by the majority of the employees”). This

singular circumstantial fact led the Union to file charges

with the Board, and undoubtedly swayed the Board and

the court below to hold that anti-union animus must have

caused this outcome.

Nevertheless, there is a remarkable absence of antiunion animus in the record of this case. Had the Board’s

decision been reviewed by the Eighth, Seventh or D.C.

Circuits, and possibly others, the Hotel would have

prevailed, for the Board and the court below relied on

only so-called “generalized animus.” The other circuits

require more; they require a nexus or causal connection

between the evidence of animus presented and the specific

adverse employment decision at issue – referred to also

as “particularized motivating animus”. Earlier Board

decisions have also adopted this requirement. As shown

below, though, the Board has flip-flopped considerably on

this issue, currently rejecting this requirement.

This is an important issue. The NLRB received close

to 20,000 Unfair Labor Practice charges in FY2023,

continuing an increase over recent years. 1 A large

proportion of these ULPs are of the type here, alleging

anti-union discrimination in employment under section

8(a)(3). This case also raises serious questions concerning

the degree of deference owed by the courts to this agency,

1. https://www.nlrb.gov/news-outreach/news-story/unfairlabor-practices-charge-filings-up-10-union-petitions-up-3-in-fiscal

particularly in the face of the Board’s notable flip-flopping

in recent years on key principles of Board law, and

particularly in view of this Court’s foundational decision

in Universal Camera Corp. v NLRB, 340 U.S. 474 (1951),

concerning the appropriate level of judicial review.

This case points to a compelling need for this Court

to step in and resolve the split among the Circuit Courts,

particularly in view of the above-mentioned lack of

consistent guidance by the Board. The evidence relied

upon in this case by the Board, and consequently by

the Ninth Circuit, would have been considered far from

adequate, by the other circuits noted above, to warrant a

bargaining order and instatement of approximately 150

former employees. Petitioner urges this Court to provide

much-needed guidance on whether a causal nexus between

evidence of alleged anti-union animus and the challenged

decision must be shown.

C. Background

The Hotel Bel-Air, an oasis-style luxury hotel located

in a wealthy residential area of west Los Angeles, opened

its doors in the late 1940s. Although it achieved iconic

status, undisputed testimony established that the Hotel,

by 2009, was losing significant market share and revenue

in the face of ever-increasing competition. 2-ER-31,9192,112. 2 Contributing to this decline was a shift in the

expectations and standards of the luxury-market segment.

2-ER-28-29,112. The Hotel found it could no longer rest

on the laurels of its past, which led to its decision in 2009

2. All record citations are to the Excerpts of Record filed in

the Ninth Circuit Court of Appeals.

to shut down for a down-to-the-studs renovation that took

two years to complete.

Critical changes also were developed for the Hotel’s

business model, in keeping with evolved expectations

and standards of the luxury segment. To this end, per

undisputed testimony, the Hotel deemed it critical to

substantially redirect how guest-services would be

delivered upon reopening. 2-ER-28-30,33-34,36-37,4546,50,112. The Hotel’s old way of providing these services,

described as service that was “unseen,” at a “rich uncle’s

house in the country,” was no longer working. 2-ER-28.

Service-standard expectations had become far more

“hands-on” – employees interact more directly and

intuitively with guests; their needs are anticipated; their

whims catered. Id.

Prior to the September 2009 closing, employees

were represented by UNITE HERE, Local 11. Upon the

announcement in July to close, the Hotel initiated effects

bargaining to address the impact of this decision. The

negotiations extended over nearly a year, with 17 faceto-face meetings, but with no agreement. The Hotel then

declared an impasse and implemented certain proposals,

including a generous severance payment. 3

In preparing to reopen two years later, all former

employees were directly invited to apply. 5-ER-970. To

further assist in filling the 306 identified positions, the

3. Facts stated here are set forth in opinions from earlier

litigation. See Appendices C, D and E. As discussed below, the

Board held, and the D.C. Circuit Court affirmed, that the Hotel’s

declaration of impasse was technically premature.

Hotel publicly advertised a three-day job fair. Over onethousand applicants showed up, including 176 former

employees. 2-ER-219, 5-ER-981-90,914-67.

The need for holding the job fair was obvious, given

the two-year closure, as some unknowable number of

former employees, having moved on, would have little

or no interest in returning. In addition, in keeping with

its business-model redirection, the Hotel was sharply

focused, as shown by undisputed testimony, on hiring

the right personality type – a “very specific type of

personality,” as one interviewer-witness stated. 2-ER-112.

Employee selection, as shown by undisputed testimony

from numerous interviewer-witnesses, was based solely

on how applicants presented themselves through three

stages of interviews. The traits of personality sought, as

the director of human resources testified, can be readily

identified in the interview process. “It’s not something that

you can fake.” 2-ER-227-29. Explaining further: “We like

certain people for some reason or the other. And we would

choose to go to a place or patronize a place because there’s

just this quality that you feel good about.” Id.

The specific personality type sought was “what guests

are now looking for” in a five-star property, and what

the Forbes-star inspectors “look for.” 2-ER-91 (emphasis

added). Forbes, which inspects all hotels nationwide and

assigns a “star” rating, had tightened its standards, and

was “whittling … away” the number of hotels awarded

the vaunted five-star designation. 2-ER-91-92.

After a thousand-plus sets of interviews, the end

result – based on the above criteria for selection and the

dynamics of holding a large job fair – was that less than a

majority of the new Hotel staff comprised former unionrepresented employees. (The number hired was slightly

less than thirty.)

However, even if as many as 85% of the 176 former

employees (150) had met the Hotel’s hiring criteria, and

had been hired, the contingent of former employees still

would not have comprised a majority of the 306 positions

filled. Equally important, the Board correctly rejected

the ALJ’s reliance, in her finding of anti-union animus,

“on the disparity between the number who applied [176]

and the number who were hired [~thirty].” App. B, 29a

(footnote 4).

D. The NLRB’s Theory of Generalized Animus, and

the Ninth Circuit’s Approval of this Standard, is

Contrary to Other Circuits and Earlier NLRB

Decisions.

The Union filed two Unfair Labor Practice charges

(“ULPs”) under 29 U.S.C. §§158(1), (3) and (5), alleging

discrimination in hiring and failure to bargain. No ULP

alleging discriminatory denial of employment was filed

by any former employee.

The Board’s General Counsel, in seeking to prove

“8(a)(3)” discriminatory refusals to hire, called very few

witnesses. Instead, she pursued a so-called generalized

theory of anti-union animus. As explained by counsel

for the General Counsel during the hearing (as well

as in her briefing), the “theory of [her] case” was that

“[Hotel] discriminated against these individuals because

they were represented by a union,” and further stated:

“[T]hat major factor … alone, that they were covered by

the unit of those employees, that was the discrimination.”

(4-ER-761-63,691-92 (emphasis added).

The Ninth Circuit accepted this standard of generalized

animus as appropriate, and found it sufficient. App. A, 21a

(“The showing here … [constituted] substantial evidence

of [Hotel’s] generalized animus”; emphasis added). But

most critically, the court erred in its endorsement of a

standard advanced by the current Board’s membership,

that there is no “requirement” to “show particularized

motivating animus towards an employee’s own protected

activity.” App. A, 20a, citing Intertape Polymer Corp., 372

NLRB No. 133 (2023), slip op. at 13.

In holding that “particularized motivating animus” is

not required, the court below mischaracterized the Hotel’s

position as limited to only an insistence on “evidence of

individualized animus, that is, animus toward certain

employees.” App. A, at 20a.

While a lack of evidence of animus toward specific

employees is one way of show ing the absence of

particularized motivating animus – in the present case,

there is no evidence of animus toward any identified

employees – the test, properly applied, turns on more. The

record as a whole must be considered, as this Court made

clear in its foundational decision in Universal Camera,

supra, 340 U.S. at 487-488. Built upon this foundation

are a series of recent and important decisions on 8(a)(3)

causation, discussed infra in Argument section C, by the

Eighth, Seventh and D.C. Circuits, holding that the Board

may not rely on mere “suspicion [or] surmise,” nor on

the presence in the record of nothing more than “simple

animus” or “general hostility toward a union.”

Notably, the only circuit court case cited by the Ninth

Circuit in support of rejecting the need for particularized

motivating animus was Great Lakes Chemical v. NLRB,

967 F.2d 624 (D.C. Cir. 1992), a case which involved, as

here, a large-scale rehiring. That case, however, included

overwhelming evidence of so-called generalized animus,

including a proverbial smoking-gun memo, as discussed

further infra. (Argument section D).

There is no smoking gun in the present case, nor

anything close. There was simply an assumption of antiunion animus inferred from the single fact that less than

a majority of former employees wound up being hired –

i.e., there was only an assumed “hostility,” which other

circuits have held does not itself supply the element of

unlawful motive.

E. The Generalized-Animus Case Presented by the

Board’s General Counsel Failed to Include Proof

of “Particularized Motivating Animus.”

As a consequence of pursuing mere generalized

animus, the General Counsel presented an exceedingly

thin case to the ALJ. A mere five former-employee

witnesses were called – out of the 176 who could have

been called – none of whom testified to any of the usual

indicia of anti-union animus by managers or agents of the

Hotel. Indeed, as the Board’s decision reflects in total, the

General Counsel failed to present any direct or indirect

evidence of anti-union hostility on the part of any manager

or agent of the Hotel – i.e., no evidence of unlawful threats,

promises or interrogations or other such conduct typically

accompanying a violation of section 8(a) of the Act.

Nor is there any evidence or mention in the Board’s

decision that any plan was discussed or implemented to

curtail the hiring of former employees – i.e., no evidence

of a quota, or even a running tally of former and nonformer employees being hired, nor evidence that former

employees were excluded from the hiring process.

In addition, a virtually all-new management team 4

conducted the interviews. 2-ER-232-38. These interviewers

had not had any past dealings with the union inside the

Hotel, and were accordingly free from potential anti-union

taint. They were likewise unaware which candidates may

have been known union supporters. Finally, formeremployee personnel files were stored offsite and never

reviewed during the hiring process. 2-ER-257-59.

O f c r it ic a l i mp or t a nce , t he se new-ma na ger

interviewers exercised complete, unfettered and individual

discretion in deciding whether to advance applicants for

further-or-final consideration, as acknowledged by the

ALJ in her decision. App. B, 56a and 60a, and 3-ER-29899,445-46,463-64,490-91.

There is no evidence that the final three decisionmakers (primarily Hotel manager Christophe Moje, the

new second-in-command 5 ) exercised animus in their

hiring decisions. Moje, hired in the summer of 2011,

testified without contradiction that he had little personal

knowledge of past or ongoing disputes with the Union,

4. The lone exception was manager Maria Rangel, to whom

the Board ascribed no animus.

5. The other two decision-makers were employed by a thirdparty restaurant company.

and that he never inquired as to union status during his

interviews. He was further unaware of “any bias against

hiring former [employees],” and denied the use of any

“quota” as a function of his hiring decisions. 2-ER-110-18.

Additional record facts point to an absence of

particularized motivating animus: (1) at least two former

employees who had picketed in front of the Hotel were

hired, 4-ER-690-92; (2) shortly after the 2011 re-opening,

the Hotel offered to submit to an election administered

by the Board, an offer which the Union declined, 4-ER646-47, 5-ER-991-94; and (3) approximately one-hundred

of the former employees, after the effects bargaining

got underway, signed and filed a decertification petition,

4-ER-668, 5-ER-995-1008. These facts undermine any

notion of Local 11 as a formidable union that an employer

might theoretically fear, and contradict the supposition of

an employer with animus doing all it can to avoid hiring a

majority of the former employees.

Indeed, in view of the decertification petition, it could

be said that such an employer, seeking to avoid a union,

might wish to rehire the former employees. But in fact,

as Moje testified: “We were just simply hiring the best

fit, talent, and personality for the right job.” 2-ER-110-18.

F. Three Identified Items of Evidence, Relied Upon by

the Board and the Ninth Circuit, Fail Also to Meet

the “Particularized Motivating Animus” Standard

Required by Other Circuit Courts.

The Board and the Ninth Circuit were undoubtedly

swayed, as stated, by a single circumstantial fact – the

hiring outcome. It was thereby “suspected” and “surmised”

that the Hotel had to have intended this outcome, knowing

this would eliminate the duty to bargain. In short, there

was merely an assumption of “general hostility.”

The Board and the Ninth Circuit did point, however,

to three remarkably strained and attenuated evidentiary

items upon which it was asserted that sufficient animus

was found. All three items were held by the court, however,

as support for “generalized” animus only: “The showing

here [listing the three items] … is more than substantial

evidence of [Hotel’s] generalized animus.” App. A, 21a

(emphasis added).

As discussed in the Argument, these innocuous pieces

of information – a “stray remark” made years after the

fact by a low-level employee, a “cherry-picked” critique

of 10% of the interview forms created during the hiring

process, and the fact that Petitioner had previously been

found to have declared a premature impasse during preand post-closure Union negotiations – do not bear any

relationship to the hiring decisions at issue, and would not

have met the standard required by the Seventh, Eighth,

and D.C. Circuits to demonstrate a violation of 8(a)(3).

ARGUMENT

A. The Importance of Granting Certiorari in this Case.

Guidance on statutory interpretation, particularly

when circuit courts are split, is a key responsibility of

this Court. The first identified ground in Supreme Court

Rule 10, for assessing whether to grant certiorari, is the

existence of “a decision in conflict” with “another … court

of appeals on the same important matter.”

The matter at issue here – the standard necessary to

prove an unfair labor practice (“ULP”) under section 8(a)

(3) – is an important one. As shown in the Introduction

above, nearly 20,000 ULPs charges were filed in FY2023,

continuing an increase over recent years. Many of these

charges revolve around whether anti-union animus caused

various forms of discrimination in employment, thus

triggering application of 8(a)(3). Depending on the outcome

of such cases, the nature of how an employer operates

its business can be significantly altered, bargaining

orders may be entered, and orders to offer instatement

of employment may be made (the Board has imposed

both of these enforcement measures in this case 6). Of

course, Board orders under 8(a)(3) are also significant for

employees and unions, as they directly impact job security

and interactions with employers.

The need for consistency among the circuits in

the application of 8(a)(3) is apparent. Unfortunately,

the NLRB, charged with front-line responsibility for

administering the National Labor Relations Act, has been

woefully inconsistent in its interpretation of 8(a)(3).

B. The Board’s Back-and-Forth Rulings on Whether

Particularized Motivating Animus Is Required to

Be Proven.

The seminal authority setting forth burdens of

proof under 8(a)(3) is this Court’s decision in NLRB

6. The order to offer instatement to 152 former employees

– who were in place when the business model called for “unseen

service” – puts the Hotel’s changed business model, described in

Section C of the Statement of the Case, genuinely at risk.

v. Transportation Management, 462 U.S. 393 (1983),

which approved the Board’s decision in Wright Line, 251

N.L.R.B. 1083 (1980).

Although the Board often pays lip service to the

premise that “Wright Line … ‘is inherently a causation

test’,” it recently rejected the “requirement that the

General Counsel must show particularized motivating

animus.” Intertape Polymer, supra, 372 NLRB No. 133, at

slip op. at 10 and 13, respectively. Thus, the Board declared

that proof of generalized animus alone is sufficient in a

case under section 8(a)(3). This holding, from Intertape,

was cited and quoted by the Ninth Circuit in the present

case. App. A, 20a.

The Board’s position on whether particularized

motivating animus is required – also called “causal nexus”,

linking evidence of motivating animus to a specific adverse

employment decision – has flip-flopped on numerous

occasions, particularly over the past 20-some years.

This back-and-forth has focused at times on whether a

motivational nexus should be recognized as a “fourth

element,” to what is otherwise expressed quite often as a

three-element test.

For example, in FES, Division of Thermo Power,

331 NLRB 9 (2000), quoted and cited by the court below,

the Board identified the first two elements in a refusalto-hire case as (1) an employer engaged in hiring, and (2)

an applicant that was qualified (or the reasons given for

rejection were pretextual). Id. at 12. The third element

under this formulation, also approved by the court

below, is the following minimalist statement: “(3) that

antiunion animus contributed to the decision not to hire

the applicants,” with no mention of causation, motivation,

or a nexus. Id. (emphasis added).

Nonetheless, two years after FES, in 2002, the Board

announced a four-element rule which included a more

robustly-stated animus element, establishing the need

to show a “motivational link, or nexus.” The first three

elements stated were noncontroversial (protected activity;

knowledge thereof by employer; an adverse employment

action). To these was added the following:

Fourth, the General Counsel must establish

a motivational link, or nexus, between the

employee’s protected activity and the adverse

employment action.

In Re Am. Gardens Mgmt. Co., 338 NLRB 644, 645 (2002),

citing Tracker Marine, L.L.C., 337 NLRB 644, 646 (2002).

Subsequently, however, the Board reversed course

and rejected this “fourth element.” In overturning the

decision of an ALJ who had ruled for an employer, the

Board declared the ALJ had “incorrectly described the

General Counsel’s initial burden as including a fourth

‘nexus’ element.” In Re Mesker Door, Inc., 357 NLRB 591,

601, n. 5 (to text at 592) (2011) (emphasis added).

Similarly, in 2014, in AutoNation d/b/a Libertyville

Toyota, 360 NLRB 1298, 1301 (2014), the Board identified

only three elements: “a showing [of] union or protected

concerted activity, [plus] employer knowledge of that

activity,” followed by – as expressed in FES, supra –

merely a minimalist showing of “union animus on the part

of the employer,” with no mention of need for a motivational

link or nexus.

But then, in 2019, in Tschiggfrie Properties, 368

NLRB No. 120 (2019), slip op. at 10 (hereinafter,

Tschiggfrie-II 7), the Board reversed course yet again, by

expressly “overrul[ing] Mesker Door, Libertyville Toyota

and their progeny to the extent …

… that they suggest that the General Counsel

necessarily satisfies his burden of proof under

Wright Line by simply producing any evidence

of the employer’s animus or hostility toward

union or other protected activity.” (Emphasis

in original).

As the decision in Tschiggfrie-II explained, slip op.

at 9, the issue is not, per se, whether there should be a

“fourth element.” Rather, it is whether the appropriate

test includes a clear requirement of a causal nexus

between evidence of animus and the adverse employment

action. “[W]hether summarized as a three-part or fourpart test, the General Counsel was obligated to do more

than introduce some evidence of animus.” Id. (emphasis in

original). Tschiggfrie-II went on to describe the criticisms

of the minimalist, non-causal animus standard – as set

forth in “Mesker Door, Libertyville Toyota and their

progeny” – by the Eighth and Seventh Circuits, discussed

infra.

The Board was not done changing its mind, for the

2023 Intertape decision, as noted above, expressly rejected

the need to prove “particularized motivating animus.”

7. This decision followed a remand by the Eighth Circuit –

discussed in the next section – of an earlier decision by the Board

in Tschiggfrie.

Interestingly, the Board’s General Counsel – obviously

concerned by the enhanced burden Tschiggfrie-II had

imposed – “urge[d] the Board to overrule” it. Intertape,

slip op. at 6. The Board feigned that there was no need to

do so, by declaring Tschiggfrie-II had merely “clarified”

Wright Line, and that it had been “unnecessary” for

Tschiggfrie-II to “overrule … Libertyville” and the other

cases. Slip op. at 12. This was disingenuous, however, for it

is impossible to square Tschiggfrie-II’s clear denunciation

of the minimalist, non-causal animus standard announced

in Libertyville, et. al, with the assertion that the former

(Tschiggfrie-II) did not overrule the latter (Libertyville).

Intertape’s ultimate holding – rejecting the need for a

“separate nexus element” or for “particularized motivating

animus” – establishes beyond doubt that Libertyville and

Mesker Door, expressly overruled in 2019, have once again

become “good” Board law.

Intertape declared that the decision by the Eighth

Circuit (remanding Tschiggfrie-I), and the decision

by the Board’s membership in Tschiggfrie-II, had

“misinterpreted” Libertyville. Id., slip op. n.76 (text at

slip op 12). The Board effectively argued, in circular

fashion, that because “Wright Line … ‘is inherently a

causation test’,” slip op. 10, there is no need for proof of the

“motivational link, or nexus” which the Board previously

had held was necessary – as for example in In Re Am.

Gardens Mgmt., supra.

Board member Kaplan, however, while concurring in

Intertape’s result, was correctly critical of the majority

opinion, stating that the Board had “fail[ed] to expressly

acknowledge any analytical outer limit to the generality

of animus evidence.” Id., slip op. 18 (emphasis added).

C. The Eighth, Seventh and D.C. Circuits, and Possibly

Others – Contrary to the Ninth Circuit – Require

Particularized Motivating Animus, i.e., a Nexus

Linking Animus to the Adverse Employment

Decision at Issue.

As noted by the Board in Tschiggfrie-II, supra, slip

op. at 9, “appellate courts have questioned the Libertyville

Toyota formulation,” but the “Eighth Circuit has been

most critical,” noting its refusal to “even consider the

merits of the Board’s finding of a violation under Wright

Line if the Board has applied that formulation.”

In Nichols Aluminum v. NLRB, 797 F.3d 548 (8th Cir.

2015), that court largely adopted the dissenting opinion

of Board member Johnson, who espoused the view of the

earlier decision of In Re Am Gardens, supra, subsequently

adopted in Tschiggfrie-II. The court noted that the

dissent had “admonished the Board” for its approval of

the General Counsel’s “fail[ure] to prove the ‘requisite

nexus between [the employee’s] strike participation and

the motivation for his discharge’.” 797 F.3d at 552-553

(emphasis added). The dissent had further “sharply

criticized the majority for ‘rely[ing] on scant evidence and

inference to put themselves in position to substitute their

judgment for [Nichols] as to what … [the employee] did

and whether it warranted discharge’.” 797 F.3d at 552-553.

Citing to this Court’s decision in Universal Camera

Corp. v. NLRB, supra, the Eighth Circuit stated the court

“must take into account ‘whatever in the record fairly

detracts from [the Board decision’s] weight’ and ‘must view

the inherent strengths and weaknesses of the inferences

drawn’.” 797 F.3d at 553 (other cit. omitted). Further, the

Board “cannot rely on suspicion, surmise, implications,

or plainly incredible evidence.” Id. (internal cit. omitted).

The court held:

To prove discriminatory discharge [or failure to

hire], the General Counsel must establish “that

the employee was discharged [or not hired]

for his union activities or membership — [i.e.]

that but for his union activities or membership,

he would not have been discharged.” Simple

animus toward the union “is not enough.”

797 F.3d at 554 (internal cit. omitted; emphasis added).

The Eighth Circuit, in Tschiggfrie Props. v. NLRB,

896 F.3d 880 (8th Cir. 2018), applied this standard again

when it reviewed the Board’s first “Tschiggfrie” decision,

in Tschiggfrie Properties, 365 NLRB No. 34 (2017)

(Tschiggfrie-I). The court rejected the Board’s assertion

that the “General Counsel does not have to prove a

connection between the antiunion animus and the specific

adverse employment action,” and rejected the proposition

that the “General Counsel’s initial burden has no ‘nexus’

element.” 896 F.3d at 885.

Citing to Transportation Mgmt., 462 U.S. at 401, as

well as to 29 U.S.C. §160(c) (Board findings), and to 29

C.F.R. §101.10(b) (“Board’s attorney has the burden of

proof 8 of violations of section 8 …” ), the Eighth Circuit

held:

8. Which includes the burden of persuasion, as held by this

Court in its partial abrogation of Transportation Management

in Office of Workers Comp v Greenwich Colliers, 512 U.S. 267,

276-278 (1994).

In order to meet this burden, proving simple

animus toward the union is not enough.

Contrary to the standard the Board applied

here, the General Counsel must prove a

connection or nexus between the animus and

the firing – i.e., that the discriminatory animus

toward the employee’s protected conduct

was a substantial or motivating factor in the

employer’s decision to discharge him.

Tschiggfrie Props., 896 F.3d at 885 (internal cit. omitted).

The Seventh Circuit stated its agreement with the

Eighth Circuit in AutoNation v. NLRB, 801 F.3d 767

(7th Cir. 2015), on its review of the Board’s decision in

Libertyville Toyota, supra. Citing to Nichols Aluminum,

the Seventh Circuit held: “[T]here must be a showing of

a causal connection between the employer’s anti-union

animus and the specific adverse employment action on

the part of a decisionmaker.” 801 F.3d at 775. 9

Other Circuits have agreed, including most notably

– within just the last few days – the D.C. Circuit in Stern

Produce v. NLRB, No. 23-2011 (D.C. Cir., March 26, 2024),

slip op. at 16-17, which cites to and relies directly on the

Eighth and Seventh Circuit cases cited above, Nichols,

Tschiggfrie and AutoNation:

9. The Seventh Circuit upheld the outcome in Libertyville.

However, as noted in the Board’s remand decision in Tschiggfrie-II,

slip op. at 10, while the Seventh Circuit “has not refused to enforce

Board orders simply because the Board applied the Libertyville

Toyota formulation” – as has the Eighth Circuit – the Seventh

Circuit “has criticized that formulation,” as shown above.

[The NLRA] prohibits an employer’s adverse

action only if it was connected to union activities

… This means that the General Counsel must

present evidence of animus … [showing] a

‘causal relationship’ – or, put otherwise, a ‘link,’

or a ‘nexus’ – existed between the employee’s

union activity and the employer’s adverse

action.

Id. (emphasis added). See also:

• Fifth Circuit: N.L.R.B. v. Materials Transp. Co.,

412 F.2d 1074, 1078 (5th Cir. 1969) (“An employer’s

general hostility to unions, without more, does not

supply an unlawful motive as to discharges. …

Business judgment cannot be condemned merely

because it coincides with anti-union sentiment”).

• Sixth Circuit: Glenn’s Trucking Co. v. N.L.R.B.,

298 F.3d 502, 506 (6th Cir. 2002) (“generalized antiunion animus is thus insufficient to prove an unfair

labor practice claim”).

• First Circuit: Air Line Pilots Ass’n, Int’l v.

Guilford Transp. Indus., Inc., 399 F.3d 89, 102

n.9 (1st Cir. 2005) (“evidence of generalized union

animus, though perhaps relevant, is insufficient

to establish an unlawful scheme; emphasis added).

D. This Court Should Take This Case and Adopt a

Rule Consistent with the Eighth, Seventh and D.C.

Circuits.

While reasonable inferences may be drawn by the

Board from circumstantial evidence, or from so-called

generalized evidence – provided General Counsel has

met her burdens of both production and persuasion,

Greenwich Colliers, 512 U.S. at 276-278 – more than a

scintilla (more than mere “suspicion” and “surmisal,” as

stated in Nichols Aluminum, supra) is required. Further,

the record as a whole must be considered, as this Court

established in Universal Camera, 340 U.S. at 487-88

(1951) (“The substantiality of evidence,” upon a petition

for review, “must take into account whatever in the record

fairly detracts from its weight”). See also Allentown Mack

Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 389 (1998)

(“[A] reviewing court must identify the conclusion and

then examine and weigh the evidence”) (emphasis added).

In the context of an 8(a)(3) Board case, consistent

with these foundational decisions, the Eighth, Seventh

and D.C. Circuit decisions outlined above have established

the sound rule that the Board’s General Counsel “must

prove a connection or nexus between the animus and the

[adverse action at issue],” and that “proving simple animus

toward the union is not enough,” Tschiggfrie Props., 896

F.3d at 885, nor is “general hostility.” Nichols Aluminum,

797 F.3d at 554-555.

In a hiring case involving a single individual, for

example, there must be a causal nexus between the animus

identified and the decision not to hire that individual. It

must be shown, stated differently, that “particularized

animus” was the “motivating” cause 10 , consistent with

Transportation Management, 462 U.S. at 401 (animus

must be the “substantial or motivating cause” of the

adverse action).

The rule can be no different in a large-scale hiring

case, as here, which is not to say that General Counsel

must prove specific animus aimed at each particular

individual. But there must be more than, as is the case

here, simply the outcome that less than a majority was

hired. Such evidence is the equivalent of mere simple

animus or general hostility. This is particularly so here,

given the remarkable absence of animus evidence, and

given Hotel’s clear evidence, without any direct rebuttal,

of a legitimate hiring process and hiring criteria.

Notably, the only circuit court case cited by the

Ninth Circuit in support of its rejection of the need

for particularized motivating animus was Great Lakes

Chemical v. NLRB, 967 F.2d 624 (D.C. Cir. 1992), a

case involving a large-scale rehiring. In support of the

proposition that generalized animus alone is sufficient,

the Ninth Circuit quoted the following from that decision:

“’Retail proof regarding each individual [employee

not hired] would be surplusage’.” App. A, 20a; Great

Lakes, 967 F2d at 628. That case included overwhelming

evidence, however, of an employer specifically motivated

– in a very “particularized” manner – to hire less than a

majority, including a proverbial smoking-gun memo with

a plan to hire only a “core of 16-20 experienced [former]

10. This formulation – “particularized motivating animus” –

was expressly and recently rejected by the Board, as shown above,

in Intertape, 372 NLRB No. 133, slip op. at 13, cited by the Ninth

Circuit in the decision below. App. A, 20a.

employees,” and to then “hire only trainee type individuals

who have not worked for [the former employer].” The memo

concluded: “Let it be known (with our new employees) ...

We wish to operate on a non-union basis.” 967 F.2d at 626.

E. The Three Items of Evidence Relied upon by the

Board, and Subsequently by the Ninth Circuit, to

Prove “Generalized Animus” Do Not Even Rise to

That Level, and Plainly Have No Relationship to

the Hiring Decisions at Issue.

One Sentence of Testimony by “Human

Resources Generalist” Sandra Arbizu Cannot

Reasonably be Relied Upon to Attribute AntiUnion Animus to the Actual Decisionmakers.

Ms. Arbizu was a low-level human resources employee.

Newly hired prior to the re-opening, she referred to

herself as an “HR manager, like a generalist.” 3-ER331. Among her duties was training frontline managers,

3-ER-378, although she was not in charge of that function

and reported up to a “training manager.” 3-ER-333-34.

While she assisted with the job-fair, her only “big piece”

was to “figure out a location.” 3-ER-332. Even as to this,

she testified, the location was not “ultimately up to [her].”

3-ER-333. Her role in the hiring process was guided by

“direction from [her] boss … learning what your bosses

really want.” 3-ER-333,335-36.

The Board’s decision relies on a single sentence from

Ms. Arbizu’s testimony, in response to the question of

“whether any preparations were made to deal with the

union upon re-opening.” App. B, 54a-55a. This question

was asked notwithstanding her immediately preceding

testimony of having had only limited discussions

concerning union matters with her supervising director.

3-ER-376-77. She responded from her limited perspective

only, as a leadership trainer:

I guess – when you say ‘preparation,’ is – what

I mean by that is that we do training on being

good managers, following good practices. We

do training on getting people engaged.

She then provided examples: holding department

meetings; clean break rooms; ensuring employees have

uniforms. Id.

Following this, Arbizu uttered the sentence relied

upon by the ALJ, in her strained finding at App. B, 71a,

that the Hotel had formed an “intent” to re-open nonunion, and which the Board and the court below endorsed:

… for is [sic] preventative kind of work that we

do to educate managers so that your employees

do not need a third party to speak for them,

that they can come and talk to you. We have an

open-door policy. So, things like that.

Id. (emphasis added). The ALJ disingenuously omitted

from her decision Arbizu’s immediately subsequent

testimony. When asked if it was “fair to say the hotel was

preparing to open as a non-Union hotel,” Arbizu responded

directly and clearly, “No,” and added: “it’s not about a

Union or non-Union. It’s part of preparing your staff so

that they’re ready to deal with things that are going to

come along … with the new [recently hired] managers.”

3-ER-378-79.

The court below acknowledged this testimony was

“capable of noncoercive interpretation,” App. A, 16a,

which is a vast understatement in view of (a) Arbizu’s

non-decision-making role – a fact ignored by the court

throughout its discussion of Arbizu’s testimony, id.,

14a-16a – and, most critically, (b) the complete absence of

corroborative evidence of any actual coercion by Arbizu,

or indeed by any other manager (see section D, supra).

The court thus failed to effectively review the highlyattenuated inference by the ALJ, relying solely on this

brief snippet of testimony to find that the Hotel had formed

the “intent not to have a unionized workforce when the

Hotel reopened.” App. B, 71a.

This cherry-picked snippet amounts ultimately

to nothing more than a classic “stray remark,” which

courts traditionally have held do not constitute direct

evidence of discrimination under Title VII and other

federal employment statutes. This remark by Arbizu

did not come from a decision-maker; it was made during

the hearing, years after the events in issue; and any

inferences which might be drawn, insofar as they might

relate to the decision-making from five years earlier,

are extraordinarily tenuous. See, e.g., Henry v. Wyeth

Pharmaceutical, 616 F.3d 134, 149 (2d Cir. 2010) (Title

VII case). Compare, in the context of the N.L.R.A.,

Stern Produce v. NLRB, supra, slip op. 11 (“[A] ‘single

[disciplinary] remark made to an employee who was known

to the management as a union supporter’,” but which was

not directly related to union activity, is insufficient to

establish animus [internal cit. omitted; emphasis added]).

Moreover, a proper “exam[ination] and weigh[ing]”

of this item of evidence, Allentown, supra, 522 U.S. at

389, fails to support the Ninth Circuit’s approval of the

attenuated leap by the ALJ, based solely on this one

sentence, that the Hotel had formed the “intent not to

have a unionized workforce.” App. B, 71a. Arbizu was far

removed from the decision-making ranks of the Hotel, and

there is no evidence linking her stray remark, five years

later in the hearing, to any such intent.

The Exceptionally Limited Examination by the

Administrative Law Judge of the Inherently

Unreliable Interview Records, and the Court’s

Error in Failing to Review this Examination,

Detract from the Evidence’s Already Dubious

Weight.

A mere five former employees who were denied job

offers, out of 139 identified in total (listed at App. B,

42a-48a), were called as witnesses by General Counsel.

The ALJ refers to only three of these witnesses by name,

but includes no description of their testimony in her

decision. This is unsurprising, as none of the testimony

from these five provided any support for the necessary

proof of animus. Cf. NLRB v CNN America, 865 F.3d 740

(D.C. 2017) (similar large-scale refusal-to-hire case tried

over 82 days, with testimony providing animus evidence

from a large number of witnesses denied employment).

Consequently, the ALJ’s ability to analyze the

consistency and fairness of the hiring process was limited

to her review of the thousands of pages generated by that

process. Compiled as GC Exhibit 2, these pages consisted

of – for each applicant – a two-page interview form (for

all three interviews) and a two-page application form.11

11. SER-207-680, constituting a portion of this exhibit.

The handwritten entries and checkmarks in boxes

on these four-page sets of documents, per applicant,

constituted the entirety of the evidence before the ALJ for

assessing how interviews were conducted and decisions

made. The inferences drawn by the ALJ from these mere

pieces of paper were neither corroborated by testimony

nor by any other evidence found in or cited to the record.

The bulk of these scriven entries, moreover, were

made mostly during the fast pace of a job fair over a

three-day period. No doubt some interviewers exercised

diligence and completeness in filling out their small

portion of the interview form, while others were simply

less inclined toward such effort.

The court below failed altogether to assess the

inherent unreliability of this portion of the record, by

waving away any need for such, asserting unjustly that

Hotel “argues for the first time on appeal that the Board

could not consider the [ALJ’s inferences based on the]

job fair records,” given the Hotel’s purportedly untimely

assertion that those records “are ‘hearsay’ and ‘inherently

unreliable’.” App. A, 17a.

The court was first incorrect in asserting that Hotel

did not object to the “inherent unreliability” of these

records as support for finding animus – the Hotel did

so quite vigorously in its exceptions brief submitted to

the Board, at SER-1219-1222. Under nearly identical

circumstances, the D.C. Circuit Court recently found

that a briefed argument to the Board of similar scope

“adequately preserved the issue.” Stern Produce v. NLRB,

supra, slip op. at 17, n. 4.

Second, while the court accurately stated that no

evidentiary objection on hearsay was asserted, the

court erred by ignoring its own precedent – despite

citation and argument by Hotel – in Calhoun v. Bailar,

Postmaster General, 626 F.2d 145 (9 th Cir. 1980), which

relied substantially on this Court’s decision in Richardson

v Perales, 402 U.S. 389, 402-407 (1971). As explained by

Calhoun, the “strict rules of evidence do not apply in

the administrative context,” and there is no “automatic”

exclusion for hearsay.” 626 F.2d at 148. Nonetheless,

when hearsay is admitted – as it was in Calhoun, 626

F.2d at 149, without objection, as here – it “may constitute

substantial evidence,” but the reviewing court must still

assess its “probative value, reliability and the fairness of

its use.” 626 F.2d at 148. The court below failed to make

this determinative assessment.12

The evidence relied upon by the Board was insufficient

for yet an additional, and quite critical, reason – also

unreviewed by the court below. Despite the availability

in GC Exhibit 2 of 139 four-page sets of interview forms

and applications for 139 former employees denied offers,

the ALJ examined and discussed only fourteen – or

approximately 10%. App. B, 57a-59a, 61a-64a.

12. Calhoun, supported by Richardson, directs an assessment

of a number of factors in determining such “value, reliability … and

fairness” – including whether declarants are available to testify

(in this case, yes); whether hearsay is corroborated (in this case,

no); whether statements are sworn (no); and whether documents

in question are routinely submitted and relied upon (no). As will be

shown in its merits brief, had the court below not ignored Calhoun

and Richardson, Petitioner’s assertion of “inherent unreliability”

would have been vindicated, and this ground for showing animus

eliminated.

The record as a whole must be examined, including

“whatever in the record fairly detracts from [the] weight”

of the Board’s findings, Universal Camera, supra, 340

U.S. at 487-488, which includes, here, (i) the complete

absence of even allegations of other unlawful conduct

under section 8(a) of the Act; (ii) the absence of animus

attributed to even a single member of management; (iii)

independent, unfettered hiring decisions by an all-new

management team without any history with the union;

(iv) the hiring of known picketers; (v) the Hotel’s offer to

submit to an election; (vi) the decertification petition filed

by approximately 100 former employees; and (vii) the clear

articulation, without any direct rebuttal, of legitimate

business reasons for changing the guest-service aspects

of the Hotel’s business model; which in turn (viii) drove

the Hotel’s legitimately formed hiring criteria.

Other cases demonstrate the General Counsel’s ability

to prove motivating animus without evidence of animus

aimed at every individual employees. Such evidence was

available, for example, with the smoking-gun memo (and

other facts) in the large-scale hiring case, Great Lakes

Chemical, supra (section D, above). Such evidence was

available also via the numerous witnesses called in NLRB

v CNN America, supra, discussed in the beginning just

above; see also underlying Board decision, CNN America,

361 NLRB 439 (2014).

But the Board’s adoption of the ALJ’s uncorroborated

inferences, set forth in her brief descriptions of 14

cherry-picked examples out of 139 available, from a set of

inherently unreliable job-interview forms, did not provide

a motivational link or nexus, nor did the court below even

claim such. Having rejected the need for “particularized

motivating animus,” the court simply declared that the 14

examples supported a finding of “generalized animus,” and

performed no further review of the evidence relied upon.

This fundamentally failed to meet the standard of review

imposed by this Court in Universal Camera, supra.

There is Insufficient Continuity of Animus

Between the First Hotel Case and the Present

Case, and a Lack of Independent Evidence of

Animus in the Present Case, to Support the

Finding of a Motivational Link or Nexus, and

the Court Below Misunderstood Key Facts in

the First Case.

In upholding the Board’s reliance on an earlier

case involving the Hotel, and the question of when it is

permissible to infer animus from the facts and holding

of an earlier case, the court below ignored essential

differences between the two Hotel cases. The earlier

case dealt solely with the effects bargaining initiated

upon its closure in the summer of 2009. (See, collectively,

App. C, D and E; hereinafter, “HBA-I”). As shown in

the detailed description of this bargaining by the ALJ in

the 2012 Board decision, App. E, 126a-137a, negotiations

were complex and difficult, though concessions by both

parties were given and taken. Bargaining extended over

almost a year and included approximately 17 face-to-face

bargaining sessions.

The sole issue was whether the Hotel’s negotiators

prematurely declared impasse. Following that declaration,

the Hotel implemented certain parts of its last proposal,

as is permitted when impasse is lawfully declared.

The Board held, and the D.C. Circuit affirmed, that this

declaration of impasse was premature. It is unnecessary

to review the extensive details of how the Board reached

this result in order to understand the more fundamental

point that the Hotel’s error was highly technical in nature,

and that the calling of this impasse error by the Board was

deemed a close one (as reflected by its acknowledgment

that impasse may have been reached in April 2010, App.

E, 117a, and as reflected by the repeatedly frustrated

attempts at agreement. App. E, 126a-137a).

Determining whether impasse has been reached,

given the thicket of details, motives and mindsets inherent

with any complex, lengthy negotiation, is a challenging

task:

T he e x i st ence of i mpa s se i s a fa c t u a l

determination that depends on a variety

of factors, including the contemporaneous

understanding of the parties as to the state of

negotiations, the good faith of the parties, the

importance of the disputed issues, the parties’

bargaining history, and the length of their

negotiations.

Taft Broadcasting Co., 163 NLRB 475, 478 (1967). To the

extent there is merit in the belief that the Board holds a

special expertise in labor relations, justifying deference

by the courts, such belief resides most credibly in the

excruciatingly detailed analyses undertaken over the

question of when impasse is reached.

While it can be said that an employer’s premature

declaration of an impasse constitutes a form of “animus,”

the nature of such animus is distinctly different from that

required in an 8(a)(3) case. The latter requires proof of an

intent to discriminate resulting in adverse employment

actions, while the former is more anodyne and more

technical in nature.

Board case law on inferences of animus from prior

same-party cases yields no bright-line rule, but the

Board’s practice is clear. While facts from an earlier case

“may be used to shed light on a respondent’s motivation”

in a pending case, the inquiry does not end there. Such

facts, commonly referred to as “background,” are not

given “independent and controlling weight.” Nat’l Sec.

Techs. & William F. Brown, 356 NLRB 1438, 1443-1444

(2011) (emphasis added), citing, inter alia, Monongahela

Power, 324 NLRB 214 (1997).

Instead, as stated in Mt. Clemens, 344 NLRB 450, 455

(2005), a showing of “independent evidence of animus in

the pending case” must almost always be made, and such

evidence must be related. See e.g., the following, each of

which relied upon substantial animus in the case under

examination in addition to inferences from an earlier

decision: Monongahela Power, 324 NLRB at 214; Barnes

& Noble, 237 NLRB 1246, 1246, n.1 (1978); Kenworth

Trucks, 236 NLRB 1299, 1299, n.2 (1978); Southeast Texas

Television, 226 NLRB 1340, 1341-1342 (1976); and Akron

Novelty Mfg. Co., 224 NLRB 998, 1004, n. 4 (1976).

*****

In addition, the Board failed to adequately explain

its rationale in inferring animus from HBA-I, devoting

little more than a single, bare-bones sentence, quoted

below. In consequence, the court failed to understand key

undisputed facts at issue during the effects bargaining.

There is a “simple but fundamental rule of administrative

law,” as this Court stated many years ago, requiring an

agency to explain how it reaches its results:

[A] rev iew i ng cou r t , i n dea l i ng w ith a

det e r m i n at ion or jud g m e nt w h i c h a n

administrative agency alone is authorized to

make, must judge the propriety of such action

solely by the grounds invoked by the agency.

If those grounds are inadequate or improper,

the court is powerless to affirm … [and may

not] substitute[e] what it considers to be a more

adequate or proper basis.

S.E.C. v. Chenery Corp., 332 U.S. 194, 196 (1947). See also

Fed. Power Comm’n. v. Texaco, 417 U.S. 380, 396-397

(1974) (“agency’s order must be upheld, if at all, on the

same basis articulated in the order by the agency itself”).

The entire explanation in the Board decision in this

case, supporting an inference of animus from the earlier

case, is contained in a single sentence and accompanying

single-sentence footnote by the ALJ:

[A]nimus ... is clearly evidenced by ... [The

Hotel’s] prior unlawful efforts to obtain waivers

of reinstatement rights from former employees

when the Hotel shutdown in September 2009

in violations of §8(a)(5) of the Act, see [Hotel

Bel-Air-I];”

App. B, 73a-74a. The footnote, id. at n. 11, merely repeats

the reference to “waivers,” and makes a passing reference

to “unlawful direct dealing.”

These two sentences failed to address the passage

of time, or how the events in the first case are connected

to the present case, which is particularly fatal given the

completely different decision-makers involved. Nor is there

any explanation as to how animus that would be needed

in a case of this type – alleged unlawful refusals-to-hire

– can reasonably be either inferred or characterized as

“continuing” from the highly technical form of animus in

the earlier case.

As a consequence of the Board’s failure to articulate

its reasoning, the court below completely misunderstood

the facts at issue in the effects bargaining. The court fixed

on the afore-mentioned passing reference in the footnote

to the Hotel’s supposed “unlawful direct dealing,” related

to its “asking the laid-off employees to sign waivers of

their recall rights in exchange for severance.” App. A, 15a.

The court ignored, however (despite sufficient briefing

by Hotel), the 2012 ALJ’s finding that among the key

“principles for an agreement,” to which the Union acceded,

was the following: “Employees will be offered severance.

If accepted they would have no right to recall when the

hotel reopens.” App. E, 128a (emphasis in original).

*****

In short, the three items of evidence relied upon by

the court below, as proof merely of “generalized animus,”

would not approach the proof of causation required by

Circuit Courts in the Seventh, Eighth and D.C. Circuits.

F. The Court of Appeals’ Deference to the Board’s

Decision Was Extreme and Unwarranted.

As shown above, Argument section B, the Board has

manifested extraordinary inconsistency in its application

of 8(a)(3) to cases involving discharges and failures to

hire. This Court decades ago instructed that decisions of

an administrative agency deserve only such deference as

the agency’s own process justifies, and that “[a]n agency

interpretation of a relevant provision which conflicts

with the agency’s earlier interpretation is ‘entitled to

considerably less deference’ than a consistently held

agency view.” I.N.S. v. Cardoza-Fonseca, 480 U.S. 421,

447 n.30 (1987), citing Watt v. Alaska, 451 U.S. 259, 273

(1981). This instruction is even more prudent where an

agency, like the Board, is subject to frequent changes

in membership according to political ebbs and flows.

See United Transp. Union v. Lewis, 711 F.2d 233, 242

(D.C. Cir. 1983) (“the agency reversed itself … after the

designation of a new Chief Counsel and Administrator.

… A statutory construction to which an agency has not

consistently adhered is owed no deference.”).

Moreover, unlike a substantial number of agencies

which use technical knowledge beyond the understanding

of most laypersons in crafting their rules, the NLRB

has indecisively toyed for decades with an evidentiary

standard that arose from a judicial standard issued by this

Court in the first place. Transportation Management,

supra.

In view of the foregoing, this Court should reject the

extreme and unwarranted standard of review followed

in this case by the Ninth Circuit: “We defer to any

‘reasonably defensible’ interpretation of the NLRA by

the Board.” App. A, 10a-11a.

*****

The Hotel urges this Court to take this case, as it

demonstrates the extremes to which the Board may go

in the ignoring of sound rules of causation, and by doing

so misguiding some of the circuits.

This Court should rule, consistent with the circuits

at odds with the Ninth, that a reviewing court in an 8(a)

(3) Board case must “examine and weigh the evidence,”

Allentown, 522 U.S. at 389, by “tak[ing] into account

whatever in the record fairly detracts from [the] weight”

of a Board’s decision, Universal Camera, 340 U.S. at 487488, and thereby establish a rule for all circuits to follow

requiring a causal nexus – i.e., by requiring, in the case

here, a showing of particularized motivating animus as

the cause of an alleged intent to hire less than a majority

of former employees as a mechanism to (allegedly) avoid

union recognition.

CONCLUSION

For the foregoing reasons, a Writ of Certiorari should

be granted.

Respectfully submitted

John R. Hunt

Counsel of Record

A rch Stokes

Stokes Wagner, ALC

One Atlantic Center

1201 W. Peachtree Street NW,

Suite 2615

Atlanta GA 30309

(404) 766-0076

jhunt@stokeswagner.com

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT, DATED

OCTOBER 24, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A P P E N DI X B — O P I N ION O F T H E

NATIONAL LABOR RELATIONS BOARD,

FILED JANUARY 25, 2021 . . . . . . . . . . . . . . . . . . 27a

A PPENDI X C — J U DGMENT OF THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLU M BI A

CIRCUIT, FILED MARCH 8, 2016 . . . . . . . . . . . 101a

APPENDIX D — OPINION AND APPENDIX

OF THE NATIONAL LABOR RELATIONS

BOARD (N.L.R.B.), DATED OCTOBER 31,

2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105a

APPENDIX E — OPINION OF THE NATIONAL

LABOR RELATIONS BOARD (N.L.R.B.),

DATED SEPTEMBER 27, 2012 . . . . . . . . . . . . . . 114a

APPENDIX F — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED JANUARY 4, 2024 . . . . . . . . . . . . . . . . . . 148a

APPENDIX G — STATUTORY PROVISIONS

INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT, DATED OCTOBER 24, 2023

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 21-70225

NLRB No. 31-CA-074675

KAVA HOLDINGS, LLC, DBA Hotel Bel-Air,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent,

UNITE HERE LOCAL 11,

Respondent-Intervenor.

No. 21-70638,

21-71334

NLRB No. 31-CA-074675

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

KAVA HOLDINGS, LLC, DBA Hotel Bel-Air,

Respondent.

Appendix A

On Petition for Review of an Order of

the National Labor Relations Board

Argued and Submitted October 20, 2022

Seattle, Washington

October 18, 2023

Before: Ryan D. Nelson, Danielle J. Forrest, and

Jennifer Sung, Circuit Judges

Opinion by Judge Sung

SUMMARY*

Labor Law

The panel denied in part and dismissed in part

Kava Holdings, LLC’s petition for review and granted

the National Labor Relations Board’s cross-petition for

enforcement of its order, which found that Kava committed

unfair labor practices in violation of Sections 8(a)(1), 8(a)(3),

and 8(a)(5) of the National Labor Relations Act.

Intervenor UNITE HERE Local (the Union) was the

exclusive collective bargaining representative for a unit

of employees whom Kava employed at the Hotel Bel-Air.

When the Hotel reopened after extensive renovations,

Kava refused to rehire 152 employees even though they

* This summary constitutes no part of the opinion of the court.

It has been prepared by court staff for the convenience of the reader.

Appendix A

were qualified for the open positions and refused to

recognize the Union as the unit employees’ bargaining

representative.

The panel held that substantial evidence supported

the Board’s finding that Kava committed an unfair labor

practice by refusing to rehire union-affiliated former

employees so that Kava could avoid its statutory duty to

bargain with the Union. Substantial evidence supported

the Board’s finding of anti-union animus where the Board

properly drew an inference of animus from Kava’s prior

unlawful conduct, the Board reasonably inferred animus

from the testimony of a Kava human resources manager,

and there was more than substantial evidence of Kava’s

generalized animus against former employees based on

their union affiliation. The panel rejected Kava’s argument

that it affirmatively proved that it refused to rehire the

former employees for legitimate business reasons.

The panel held that substantial evidence supported

the Board’s finding that Kava committed an unfair labor

practice by refusing to recognize and bargain with the

Union as it reopened the Hotel, and by unilaterally

changing the bargaining unit’s established, pre-closure

terms and conditions of employment.

OPINION

SUNG, Circuit Judge:

For some years, intervenor UNITE HERE Local

11 (Union) was the exclusive collective bargaining

Appendix A

representative for a unit of employees whom Kava

Holdings LLC employed at the Hotel Bel-Air. The

bargaining unit included kitchen workers, dining and

room service employees, housekeepers, garage and front

desk employees, gardeners, maintenance employees, and

more. In September 2009, Kava temporarily closed the

Hotel for extensive renovations and laid off all the unit

employees. In July 2011, as Kava prepared to reopen the

Hotel, Kava conducted a job fair to fill about 306 unit

positions. Approximately 176 union-affiliated former

employees applied for those positions. Kava refused to

rehire 152 of them.

The National Labor Relations Board found that Kava

committed unfair labor practices by refusing to rehire

former employees because of their union affiliation,

refusing to recognize and bargain with the Union,

and unilaterally changing unit employees’ terms and

conditions of employment, in violation of Sections 8(a)(1),

8(a)(3), and 8(a)(5) of the National Labor Relations Act,

29 U.S.C. § 158(a)(1), (3), (5). The Board ordered various

remedies, including reinstatement of the former employee

applicants who were affected by Kava’s discriminatory

conduct. Kava petitions for review of the Board’s order

and a supplemental remedial order, and the Board crossapplies for enforcement. Because the Board’s findings

are supported by substantial evidence, we deny Kava’s

petition for review and grant the Board’s application for

enforcement.

Appendix A

BACKGROUND

Kava’s conduct surrounding the temporary closure of

the Hotel Bel-Air gave rise to two separate but related

Board orders finding that Kava committed multiple unfair

labor practices. The first order, Hotel Bel-Air I, addressed

Kava’s conduct at the start of the temporary closure. See

Hotel Bel-Air, 358 NLRB 1527 (2012), adopted by 361

NLRB 898 (2014), enforced, 637 F. App’x 4 (D.C. Cir. 2016).

The second order, Hotel Bel-Air II, addressed Kava’s

conduct upon reopening and is the subject of this appeal.

See Hotel Bel-Air, 370 NLRB No. 73 (2021).1

When Kava temporarily closed the Hotel in September

2009, Kava and the Union initially bargained over the

closure’s effects on the laid-off employees. But after some

months, Kava ended those negotiations. In Hotel Bel-Air

I, the Board found that Kava violated its duty to bargain

in good faith in two ways: by unilaterally implementing

its “last, best, and final offer” on severance, waiver, and

release terms without having first reached a valid impasse

in negotiations with the Union, and by bypassing the

Union and dealing directly with the laid-off employees.

358 NLRB at 1527-28. As to the second violation—

unlawful engagement in direct dealing—Kava asked the

laid-off employees to sign waivers of their recall rights in

exchange for severance payments. Id. The Board ordered

Kava to rescind the waivers and bargain in good faith with

the Union. Id. at 1528-29.

1. The Board also issued a third, supplemental order, Hotel BelAir III, regarding a remedial issue. See Hotel Bel-Air, 371 NLRB

No. 27 (2021).

Appendix A

While the unfair labor practice charges underlying

Hotel Bel-Air I were pending, Kava prepared to reopen

the Hotel. Both before and after the renovation, the Hotel

Bel-Air was a five-star luxury hotel. Although Kava

planned significant updates to the Hotel’s service model

upon reopening, the job descriptions and duties for most

unit positions remained essentially the same.

In July 2011, a few months before the Hotel’s

reopening, Kava conducted a three-day job fair. The job

fair advertisements stated that Kava sought candidates

with “exceptional talent,” “a passion for excellence, a

warm friendly, and positive attitude, and strong verbal

communication skills.” Kava also noted that “[p]revious

luxury hospitality experience” was “desirable.”

Kava invited its union-affiliated former employees to

apply during the first morning of the job fair and reserved

the remaining two-and-a-half days for members of the

public. This schedule allowed Kava to easily “distinguish

[union-affiliated former employees] from other applicants.”

Hotel Bel-Air II, 370 NLRB No. 73, slip op. at 12.

At the job fair, applicants completed an initial written

application that included an employment history section. 2

Then, they proceeded through a three-step interview

process. First, all applicants lined up for an initial

interview, during which they stated the position they were

applying for, their evening and weekend availability, and

2. As discussed further below, Kava deviated from this

approach with respect to some of the former employees.

Appendix A

their reasons for wanting to work at the Hotel. Second,

some applicants advanced to a same-day departmental

interview, during which they were asked specified

questions about their work experience. Third, applicants

who passed the departmental interview were scheduled

for final interviews after the job fair. After the three

interviews, management made hiring decisions.

At the time of the job fair, Kava was hiring for about

306 unit positions. Approximately 176 union-affiliated

former employees applied for those positions at the job

fair. Kava did not hire 152 of them. The Board found,

and Kava does not dispute, that the former-employee

applicants “were qualified for the open positions, and many

had several prior years of positive evaluations while they

worked for [the Hotel Bel-Air].”

When Kava reopened the Hotel in October 2011, Kava

refused to recognize the Union as the unit employees’

collective bargaining representative. Kava also made

various unilateral changes to the bargaining unit’s terms

and conditions of employment, including wages, benefits,

breaks, and paid time off.

The Union filed an unfair labor practice charge

regarding Kava’s reopening conduct, which NLRB Region

31 placed in abeyance pending the outcome of Bel-Air I.

Eventually, the D.C. Circuit enforced Hotel Bel-Air I. 637

F. App’x at 5. Then, NLRB Region 31 took the present case

out of abeyance and issued a complaint, which was heard

by an administrative law judge (ALJ). After a 21-day

trial, the ALJ issued a thorough decision with extensive

findings of fact.

Appendix A

At trial, Kava contended that it did not hire the

union-affiliated former employees because they lacked

the demeanor or skills needed for the type of luxury hotel

service that Kava intended to provide upon reopening.

After a detailed analysis of Kava’s job fair records,

however, the ALJ found that Kava’s proffered reasons

for not rehiring the employees were pretextual. The ALJ

found that the union-affiliated former employees who

participated in the July 2011 job fair had the requisite

experience and training for the positions they had applied

for, and that many of them had received positive work

evaluations while working for the Hotel. Yet, at the job

fair, Kava excluded most of the former employees at the

initial interview stage for “unexplained” or “obviously

insufficiently explained reasons” or because of a “bogus

explanation.” Id. Additionally, for many of the former

employees, Kava did not follow its established three-step

hiring process and gave no explanation for treating those

former employees differently.

Based on Kava’s job fair records, the testimony of a

Human Resources manager, and Kava’s prior unlawful

conduct, the ALJ found that Kava’s anti-union animus—

that is, Kava’s desire to reopen the Hotel Bel-Air as a

non-union hotel—contributed to Kava’s decision not to

rehire the former employees. Specifically, the ALJ found

that Kava intended “to prevent a majority of former

employees from being rehired when the Hotel reopened”

so that Kava could avoid its statutory duty to recognize

and bargain with the Union. Hotel Bel-Air II, 370 NLRB

No. 73, slip op.at 12.

Appendix A

Ultimately, the ALJ found that Kava discriminatorily

refused to rehire its union-affiliated former employees,

in violation of Sections 8(a)(3) and (1) of the NLRA. Hotel

Bel-Air II, 370 NLRB No. 73, slip op. at 11. The ALJ also

found that Kava refused to recognize and bargain with the

Union upon reopening, and that Kava unilaterally changed

unit employees’ terms and conditions of employment,

in violation of Sections 8(a)(5) and (1) of the NLRA. Id.

at 13. 3 The ALJ ordered Kava to reinstate its unionaffiliated former employees and to make them whole for

any lost earnings or benefits, and interim search-forwork and employment expenses. The ALJ also ordered

Kava to bargain with the Union and cease and desist

from unilaterally changing the terms and conditions of

employment. Id. at 14.

Kava filed exceptions to the ALJ’s decision with the

Board. The Board affirmed the ALJ’s rulings, findings,

and conclusions, and adopted the ALJ’s recommended

order.4 Id. at 1.

3. Violations of Sections 8(a)(3) and (5) produce derivative

violations of Section 8(a)(1). Metro. Edison Co. v. NLRB, 460 U.S.

693, 698 n.4, 103 S. Ct. 1467, 75 L. Ed. 2d 387 (1983); see also 29

U.S.C. § 158(a)(1).

4. The Board adopted the ALJ’s recommended order with a few

modifications. In relevant part, when affirming the ALJ’s finding that

anti-union animus contributed to Kava’s decision not to rehire the

former employees, the Board did not rely on the disparity between

the number who applied and the number who were hired, nor did

it rely on Glenn’s Trucking Co., 332 NLRB 880 (2000), enforced,

298 F.3d 502 (6th Cir. 2002). Hotel Bel-Air II, 370 NLRB No. 73,

slip op. at 1 n.4. The Board also severed and remanded a remedial

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STANDARD OF REVIEW

“A court must uphold a Board decision when substantial

evidence supports its findings of fact and when the agency

applies the law correctly.” United Nurses Ass’ns of Cal.

v. NLRB, 871 F.3d 767, 777 (9th Cir. 2017) (citation and

quotation marks omitted).

The Board’s factual findings are “conclusive”

“if supported by substantial evidence on the record

considered as a whole.” 29 U.S.C. § 160(e). When reviewing

factual findings, “a court may not ‘displace the Board’s

choice between two fairly conflicting views, even though

the court would justifiably have made a different choice

had the matter been before it de novo.’” United Nurses, 871

F.3d at 777 (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488, 71 S. Ct. 456, 95 L. Ed. 456 (1951)).

The Board has “special expertise in drawing”

inferences of credibility and unlawful motive, and “its

determinations are entitled to judicial deference.”

Kallmann v. NLRB, 640 F.2d 1094, 1099 (9th Cir. 1981);

see also Pay’n Save Corp. v. NLRB, 641 F.2d 697, 702 (9th

Cir. 1981) (“The determination of motive . . . is particularly

within the purview of the NLRB.”). “We defer to any

‘reasonably defensible’ interpretation of the NLRA by the

issue regarding 13 unit employees who were left out of the ALJ’s

reinstatement order. Later, the Board issued a supplemental order

that required Kava to offer reinstatement to those 13 employees,

provided that the General Counsel identified them during subsequent

compliance proceedings. Hotel Bel-Air III, 371 NLRB No. 27, slip

op. at 2.

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Board.” United Nurses, 871 F.3d at 777 (quoting Retlaw

Broad. Co. v. NLRB, 53 F.3d 1002, 1005 (9th Cir. 1995)).

DISCUSSION

Discriminatory Refusal to Rehire

Substantial evidence supports the finding that Kava

committed an unfair labor practice in violation of Sections

8(a)(1) and (3) of the NLRA, 29 U.S.C. § 158(a)(1) and (3),

by refusing to rehire union-affiliated former employees

so that Kava could avoid its statutory duty to bargain

with the Union.

Section 8(a)(3) of the Act prohibits an employer

from “discriminating in regard to hire . . . [in order to]

discourage membership in any labor organization.” 29

U.S.C. § 158(a)(3). An employer violates Section 8(a)(3)

by refusing to hire job applicants because of their union

affiliation. Phelps Dodge Corp. v. NLRB, 313 U.S. 177,

181-89, 61 S. Ct. 845, 85 L. Ed. 1271 (1941).

In cases alleging a discriminatory refusal to hire,

the General Counsel typically must show “(1) that the

respondent was hiring, or had concrete plans to hire,

at the time of the alleged unlawful conduct; (2) that

the applicants had experience or training relevant to

the announced or generally known requirements of the

positions for hire, or in the alternative, that the employer

has not adhered uniformly to such requirements, or

that the requirements were themselves pretextual or

were applied as a pretext for discrimination; and (3) that

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antiunion animus contributed to the decision not to hire

the applicants.” FES, A Div. of Thermo Power, 331 NLRB

9, 12 (2000), aff’d, 301 F.3d 83 (3d Cir. 2002). Here, it is

undisputed that Kava was hiring for over 300 positions

at the time of the alleged discrimination and that the

union-affiliated former-employee applicants had relevant

training and experience for the open positions. Kava

disputes only the Board’s finding that anti-union animus

was a motivating factor in Kava’s decision not to hire the

union-affiliated former employees.

To determine whether anti-union animus was a

motivating factor in Kava’s hiring decisions, the Board

applied the causation test established in Wright Line,

251 NLRB 1083 (1980). “Under Wright Line, the General

Counsel must make a showing sufficient to support the

inference that protected conduct was a motivating factor

in the employer’s decision.” United Nurses, 871 F.3d at 778

(citations and quotation marks omitted). An employer’s

unlawful motivation can be inferred from direct or

circumstantial evidence. New Breed Leasing Corp. v.

NLRB, 111 F.3d 1460, 1464-66 (9th Cir. 1997). Direct

evidence of actual motive “that is not also self-serving”

rarely exists. Shattuck Denn Mining Corp. v. NLRB, 362

F.2d 466, 470 (9th Cir. 1966). Further, we give “special

deference” to the Board where, as here, it draws derivative

inferences from the evidence. NLRB v. Tischler, 615 F.2d

509, 511 (9th Cir. 1980).

Once the General Counsel has made this initial

show ing, the burden of persuasion shifts “to the

employer to demonstrate that the same action would have

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taken place even in the absence of protected conduct.”

Healthcare Emps. Union, Loc. 399 v. NLRB, 463 F.3d 909,

919 (9th Cir. 2006) (quoting Wright Line, 251 NLRB at

1089). “An employer cannot prove this affirmative defense

where its asserted reasons for [its action] are found to be

pretextual.” United Nurses, 871 F.3d at 779 (citations and

quotation marks omitted).

Here, Kava contends that the Board erred by finding

that the General Counsel made a sufficient showing under

Wright Line. For the General Counsel’s initial burden

under Wright Line, a sufficient showing generally consists

of three elements: “(1) union or other protected activity

by the employee, (2) employer knowledge of that activity,

and (3) animus against union or other protected activity

on the part of the employer.” Intertape Polymer Corp.,

372 NLRB No. 133, slip op. at 7 (2023). Kava does not

dispute (1) that the former employees’ Union affiliation

is protected activity, or (2) that Kava had knowledge

of that activity. Kava disputes only the third element,

contending that there is insufficient evidence of animus.

Kava also contends that it affirmatively proved that it

had legitimate business reasons for refusing to rehire the

former employees.

Anti-union Animus

Here, substantial evidence supports the Board’s

finding of anti-union animus. That evidence includes: (1)

Kava’s prior unlawful conduct; (2) the testimony of Kava

Human Resources Manager Sandra Abrizu; and (3)

Kava’s hiring conduct, including job fair records revealing

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that Kava disfavored former-employee applicants and

that Kava’s proffered reasons for rejecting them were

pretextual. Hotel Bel-Air II, 370 NLRB No. 73, slip op. at

7-10. We address Kava’s arguments about each category

of evidence, and the evidence as a whole, in turn.

Kava argues that the Board erred by drawing an

inference of animus in this case from Kava’s prior unfair

labor practice conduct in Bel-Air I. We disagree. An

employer’s prior unfair labor practices may support a

finding of unlawful motive. See, e.g., Kallmann, 640 F.2d

at 1097-1100.

Kava’s argument hinges on its misreading of Mt.

Clemens General Hospital, 344 NLRB 450 (2005), which

Kava asserts broadly prohibits inferring animus from

an employer’s prior unlawful conduct. But Mt. Clemens

recognizes that prior unfair labor practice violations

are relevant in determining whether animus exists in a

subsequent case. Id. at 455-56 (collecting examples). Mt.

Clemens did not overrule that longstanding precedent.

Rather, Mt. Clemens found that the circumstances

presented there were materially different from the prior

cases it discussed. As the Board explained in Mt Clemens,

animus could not be inferred from Mt. Clemens’s prior

unfair labor practice case because the events underlying

the prior case had occurred four years earlier and had

no factual connection to the events at issue in the present

case. Id. at 456.

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Unlike in Mt. Clemens, the events at issue in Hotel BelAir I are connected and close in time to the events at issue

here. The unfair labor practice charges in Hotel Bel-Air I

concern Kava’s conduct towards the same union-affiliated

employees during the same renovation closure. Hotel BelAir I, 358 NLRB at 1527. In Hotel Bel-Air I, the Board

found that Kava violated its duty to bargain during the

renovation closure by unilaterally implementing its “last,

best, and final offer” on severance, waiver, and release

terms without first reaching a valid impasse with the

Union, and by bypassing the Union and dealing directly

with laid-off employees. Id. Kava engaged in unlawful

direct dealing by asking the laidoff employees to sign

waivers of their recall rights in exchange for severance

payments. Id. at 1527-28. Kava engaged in this unlawful

conduct during the initial eight months of Kava’s closure

of the Hotel Bel-Air for renovation, and Kava conducted

the job fair and hiring process at issue in the present case

only a year later. The Board could reasonably infer from

Kava’s conduct in both cases—asking union-affiliated

employees to waive their recall rights in exchange for

severance pay and refusing to rehire union-affiliated

employees upon reopening the Hotel—that Kava intended

to prevent union-affiliated employees from comprising a

majority of the Hotel Bel-Air workforce upon reopening.

Thus, Kava’s unlawful conduct in Bel-Air I is substantial

evidence supporting the finding of animus in the present

case.

Kava argues that the Board erred by inferring

animus from the testimony of a Kava human resources

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manager, Sandra Arbizu. The Board drew an inference

of animus from the following exchange: Counsel asked

Arbizu whether Kava had made “any preparations” to

“deal with the Union” upon reopening. Arbizu answered

“yes,” and then explained that Kava was conducting

training on “being good managers,” which “is preventative

kind of work that we do to educate our managers so

that your employees do not need a third party to speak

for them.” Counsel then asked Arbizu if she meant that

Kava was taking “preventative measures to make sure

that a union doesn’t need to come, or [the employees]

don’t need to be represented by a union, because those

things are being taken care of,” and Arbizu answered

affirmatively. Because Arbizu testified that Kava was

taking “preventative” measures aimed at persuading

employees that they would not need a union to come

and represent them, the Board inferred that Kava was

intending to reopen as a non-union hotel.

Kava argues that we should interpret Arbizu’s

testimony differently from the Board because when

counsel asked Arbizu point blank whether Kava was

“preparing to open as a non-union hotel without the prior

union,” she responded, “No . . . it’s not about a union or

non-union. It’s part of preparing your staff so that they’re

ready to deal with things that are going to come along.”

Although Arbizu’s statements are “capable of noncoercive

interpretation,” “[i]t is not for us . . . to weigh differing

interpretations.” NLRB v. Fort Vancouver Plywood, 604

F.2d 596, 599 n.1 (9th Cir. 1979). We ask only whether the

factfinder’s interpretation was “reasonable.” Id. (citing

Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1080-

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82 (9th Cir. 1977)). Here, the inference drawn by the ALJ

and sustained by the Board was reasonable.

Kava takes issue with the Board’s findings, based

on Kava’s job fair records, that Kava treated its

union-affiliated former employees differently than

other applicants and that its proffered reasons for not

rehiring those employees were pretextual. Kava does

not meaningfully dispute the Board’s analysis of Kava’s

job fair records. Instead, Kava argues for the first time

on appeal that the Board could not consider the job fair

records because they are “hearsay” and “inherently

unreliable.” Because Kava did not urge this evidentiary

objection before the Board, Kava waived it, and we are

jurisdictionally barred from considering it. See 29 U.S.C.

§ 160(e) (“[N]o objection that has not been urged before

the Board . . . shall be considered by the court, unless the

failure or neglect to urge such objection shall be excused

because of extraordinary circumstances.”); NLRB v.

Friendly Cab Co., 512 F.3d 1090, 1103 n.10 (9th Cir. 2008)

(“Section 10(e) of the Act constitutes a jurisdictional bar

to this court considering claims not raised before the

NLRB.”).

We conclude that the Board reasonably inferred

animus from this evidence. Intertape, 372 NLRB No. 133,

slip op. at 13 (“[T]he Board “has routinely inferred animus

and a causal connection from, among other factors, . . .

disparate treatment of the employee; and reliance on

pretextual reasons for the action.”).

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Kava also contends that holistically there is insufficient

evidence to demonstrate a causal connection between

any animus and Kava’s decision not to rehire its unionaffiliated former employees. We disagree. As noted above,

we review for substantial evidence the Board’s factual

finding that the record supports an inference of causation,

and we defer to the Board’s “special expertise” in making

such inferences. Kallmann, 640 F.2d at 1099; Pay’n Save

Corp., 641 F.2d at 702; Universal Camera Corp., 340 U.S.

at 488. Kava’s prior unlawful conduct in Hotel Bel-Air I,

Arbizu’s testimony, and the job fair records that show

disparate treatment of former employees and pretext are

more than enough to support an inference that anti-union

animus was a motivating factor in Kava’s refusal to rehire

its union-affiliated former employees. See New Breed, 111

F.3d at 1465 (finding that employer’s “clandestine hiring

practices” and false promises to retain union-affiliated

employees were substantial evidence to support inference

that employer’s hiring practices were motivated by antiunion animus).

Kava asserts that Tschiggfrie Properties, Ltd., 368

NLRB No. 120, slip op. at 1 (2019), heightened the General

Counsel’s evidentiary burden under Wright Line, and

that the Board failed to apply that heightened standard

in this case. Kava’s reading of Tschiggfrie is incorrect.

Indeed, the Board recently confirmed that Tschiggfrie

did not heighten or otherwise modify the General

Counsel’s burden. See Intertape, 372 NLRB No. 133, slip

op. at 7-11 (acknowledging that “the Board’s decision in

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Tschiggfrie . . . was susceptible to misinterpretation” and

“mak[ing] clear that Tschiggfrie did not alter the General

Counsel’s burden under the longstanding Wright Line

framework”).

In support of the argument that stronger or more

direct evidence of animus is required, Kava argues that,

under Tschiggfrie, “more than ‘circumstantial evidence

of any animus or hostility’ is needed” and “a clear causal

nexus must be proven at the prima facie stage.” The Board

in that case, however, merely clarified that the General

Counsel does not “necessarily” satisfy their burden to

show that protected conduct was a motivating factor in the

employer’s decision “through evidence of general animus

or hostility toward union or other protected activity

alone.” Tschiggfrie, 368 NLRB No. 120, slip op. at 7-8 n.25

(emphasis added). The Board then took pains to explain

that it was not requiring the General Counsel to present

direct evidence of motive, and that it was not adding an

undefined “nexus” element to the Wright Line test. Id. at

8. Further, the Board emphasized that it was adhering to

its “longstanding principle that ‘[p]roof of discriminatory

motivation can be based on direct evidence or can be

inferred from circumstantial evidence based on the record

as a whole.’” Id. at 11 (quoting Embassy Vacation Resorts,

340 NLRB 846, 848 (2003)).

Finally, Kava argues that the Board erred in finding

that Kava was motivated by “generalized” animus against

its former employees as a group, because of their union

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Appendix A

affiliation. Relying again on Tschiggfrie, Kava asserts that

the Board has held that the General Counsel cannot rely

on evidence of generalized animus to prove a violation of

Section 8(a)(3), and must instead introduce evidence of

individualized animus, that is, animus towards certain

employees because of their particular union activities or

sentiments. Again, Kava misreads Tschiggfrie.

In Tschiggfrie, the Board clarified that the General

Counsel’s animus evidence “must be sufficient to establish

that a causal relationship exists between the employee’s

protected activity and the employer’s adverse action

against the employee.” 368 NLRB No. 120, slip op. at 8.

The Board further explained that “evidence of animus that

is ‘general’ in that it is not tied to any particular employee,

may nevertheless be sufficient, under the circumstances

of a particular case, to give rise to a reasonable inference

that a causal relationship exists between the employee’s

protected activity and the employer’s adverse action.”

Id.; see also Great Lakes Chem. Corp. v. NLRB, 967

F.2d 624, 628, 296 U.S. App. D.C. 257 (D.C. Cir. 1992)

(“[W]holesale rejection of former [] employees because

they were Union members is, by its nature, equally

applicable to each employee. Retail proof regarding each

individual would be surplusage.”). The Board recently reemphasized “that the Board in Tschiggfrie did not revise

the Wright Line framework by adding a requirement that

the General Counsel must show particularized motivating

animus towards an employee’s own protected activity.”

Intertape, 372 NLRB No. 133, slip op. at 13.

Kava also contends that there is not enough evidence

to establish it harbored any generalized animus against

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Appendix A

its former employees because of their union affiliation. We

reject this contention. The showing here (e.g., Kava’s prior

unfair labor practices, HR manager Arbizu’s testimony,

job fair records showing disparate treatment, and the

Board’s finding of pretext) is more than substantial

evidence of Kava’s generalized animus against former

employees based on their union affiliation.

B. Affirmative Defense

In addition to challenging whether sufficient evidence

establishes that Kava engaged in discriminatory

hiring, Kava argues that it affirmatively proved that it

refused to rehire the former employees for legitimate

business reasons. Kava does not offer employee-specific

explanations for its decisions. Rather, Kava broadly

asserts that it refused to rehire its former employees

because it intended to adopt a new luxury service model

upon reopening and it wanted employees who were wellsuited to that model.

The Board found that Kava’s proffered reasons for

refusing to hire former employees were pretextual, based

on the ALJ’s detailed analysis of Kava’s own records,

which the Board fully adopted. Hotel Bel-Air II, 370 NLRB

No. 73, slip op. at 1, 11-13. 5 Kava does not meaningfully

challenge that analysis. Nor does Kava argue that the

Board’s descriptions of the record or examples given

are inaccurate. Although Kava asserts that the Board

5. Because the Board adopted the ALJ’s analysis, we treat the

Board’s order and the adopted ALJ analysis as one order. See Hotel

Bel-Air II, 370 NLRB No. 73, slip op. at 1.

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“cherry-picked” examples, Kava does not point to any

evidence that the examples the Board provided are

not representative of the former employees as a whole.

Because the Board found that Kava’s asserted reasons for

not hiring the former employees were pretextual, Kava

cannot prove this affirmative defense. See United Nurses,

871 F.3d at 779 (citing In re Stevens Creek Chrysler Jeep

Dodge, Inc., 357 NLRB 633, 637 (2011)).

To the extent Kava is asking this Court to “reweigh

the evidence, try the case de novo, or substitute [its]

judgment for that of the Board,” El Paso Elec. Co. v.

NLRB, 681 F.3d 651, 656 (5th Cir. 2012), we may not do

so, United Nurses, 871 F.3d at 777.

II. Unlawful Refusal to Bargain

Under Section 8(a)(5) of the NLRA, it is an unfair labor

practice for an employer to “refuse to bargain collectively

with the representatives of [its] employees.” 29 U.S.C.

§ 158(a)(5). An employer has a duty to negotiate with its

represented employees’ union over potential changes

in their terms and conditions of employment. 29 U.S.C.

§ 158(d); see also NLRB v. Wilder Constr. Co., 804 F.2d

1122, 1124-25 (9th Cir. 1986) (discussing an employer’s

“continuing duty . . . to recognize and to bargain with

the union”).

Substantial evidence supports the Board’s finding that

Kava committed an unfair labor practice in violation of

Sections 8(a)(1) and (5) of the NLRA, 29 U.S.C. § 158(a)(1)

and (5), by refusing to recognize and bargain with the

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Union as it reopened the Hotel, and by unilaterally

changing the bargaining unit’s established, pre-closure

terms and conditions of employment.

The Board found that the “evidence clearly supports

the fact that the shutdown of the Hotel was planned as

a temporary renovation” and that Kava’s bargaining

relationship with the Union “survived the hiatus” in

Hotel operations, even after the collective bargaining

agreement expired on September 30, 2009. Hotel BelAir II, 370 NLRB No. 73, slip op. at 13. Accordingly, the

Board held that Kava was obligated to recognize and

bargain with the Union over the effects of the temporary

shutdown and rehiring, and that Kava was prohibited from

unilaterally changing the terms and conditions of unit

members’ employment. Id. at 13-14. Kava does not dispute

that it failed to recognize or bargain with the Union, nor

that it unilaterally changed the terms and conditions of

unit employees’ employment. Kava properly raises only

one issue: Whether Kava’s duty to bargain survived the

temporary shutdown of the Hotel.6

To determine whether a collective bargaining

relationship and the parties’ related duties survive a

shutdown in employer operations, the Board primarily

considers the “critical distinction between a temporary

shutdown and an indefinite, apparently permanent,

shutdown.” Golden State Warriors, 334 NLRB 651, 654 n.8

(2001) (collecting cases), enforced, 50 F. App’x 3 (D.C. Cir.

6. Kava’s remaining arguments are jurisdictionally barred

because Kava failed to raise them before the Board. See 29 U.S.C.

§ 160(e); Friendly Cab Co., 512 F.3d at 1103 n.10.

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Appendix A

2002). The Board also considers whether the employees

who were laid off or discharged because of the shutdown

had a “reasonable expectation of reemployment.” El

Torito-La Fiesta Rests., Inc. v. NLRB, 929 F.2d 490, 49596 (9th Cir. 1991).7

Importantly, Kava does not dispute that the Hotel

closure was temporary and that it “planned from the

outset” to reopen the Hotel after renovations were

complete. Kava challenges only the Board’s finding

that the bargaining unit employees had a reasonable

expectation of rehire.

In Hotel Bel-Air I, 358 NLRB at 1528, the Board

determined that the bargaining unit employees “retained

a reasonable expectation of recall from layoff” when

Kava closed the Hotel for renovations. The Board further

concluded that the employees’ reasonable expectation

of recall continued after the collective bargaining

agreement expired on September 30, 2009, and beyond

Kava’s unlawful direct dealing with the bargaining unit

employees on July 7, 2010. Id. In fact, the Board found that

Kava’s July 7, 2010, offer to provide severance payments

to the bargaining unit employees in exchange for their

waiver of their recall rights “took it for granted that unit

employees had some expectation of recall.” Id. The Board

relied on that finding in this case. Hotel Bel-Air II, 370

NLRB No. 73, slip op. at 12-13.

7. The Board considers “a reasonable expectation of recall to

be synonymous with a reasonable expectation of reemployment” or

rehire. El Torito, 929 F.2d at 495 n.4.

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Kava cannot collaterally attack the finding in BelAir I that the former employees enjoyed a reasonable

expectation of rehire when the Hotel closed for renovations

on September 30, 2009. Instead, Kava asserts that things

changed after July 2010, so that the employees no longer

enjoyed a reasonable expectation of rehire by July 2011,

when Kava conducted the job fair, or by October 2011,

when Kava reopened the Hotel.

Kava asserts that the employees could no longer have

a reasonable expectation of rehire in July 2011 because

their contractual right to recall had expired by then.

That argument, however, fails for two reasons. First,

as a factual matter, the expiration of the employees’

contractual right to recall is not a change in circumstance

that occurred between July 7, 2010, and July 2011,

because the contractual right to recall expired before

July 7, 2010 (when Kava made its unlawful direct offer of

severance payments in exchange for employees’ waiver

of their recall rights). 8 Second, employees do not need a

contractual or other legal right to reemployment to have

a “reasonable” expectation of reemployment. See, e.g., El

Torito, 929 F.2d at 496 (finding that employees retained

reasonable reemployment expectation after contractual

right expired).

Kava argues that this case is comparable to two cases

where the Board found that the employees did not have

a reasonable expectation of rehire: Sterling Processing

8. Under the parties’ collective bargaining agreement, the

employees’ contractual right to recall expired after they had been

in continual layoff status for 9 months, which was on June 30, 2010.

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Appendix A

Corp., 291 NLRB 208 (1988), and Cen-Vi-Ro Pipe, 180

NLRB 344 (1969), enforced, 457 F.2d 775 (9th Cir. 1972).

Those cases, however, are materially distinguishable. In

both, the employer closed its facility for economic reasons,

the shutdown was “indefinite,” and the possibility of

reopening was contingent on business deals or changes

that might not occur. See Sterling, 291 NLRB at 20810; Cen-Vi-Ro Pipe, 180 NLRB at 345-47. But here,

as Kava acknowledges, the Hotel’s “re-opening was

planned from the outset.” As noted above, the distinction

between a temporary shutdown and an indefinite one

is “critical” to the Board’s determination of whether a

collective bargaining relationship survives the hiatus in

operations. Therefore, Kava has not identified any change

in circumstance that occurred after July 2010 that could

negate the employees’ reasonable expectation of rehire,

and the Board’s finding that the Kava employees retained

a reasonable expectation of reemployment is consistent

with precedent and supported by substantial evidence.

CONCLUSION

We DENY Kava’s petition for review, except for the

arguments that we DISMISS for lack of jurisdiction

because Kava failed to raise them below. We GRANT

the Board’s cross-petition, and we enforce the Board’s

orders in full.

PETITION DENIED IN PART, DISMISSED IN

PART; CROSS-PETITION GRANTED.

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Appendix

APPENDIX B

— OPINION

OF THE

NATIONAL LABOR RELATIONS BOARD,

FILED JANUARY 25, 2021

Kava Holdings, LLC, et al. d/b/a Hotel Bel-Air and

UNITE HERE Local 11. Case 31–CA–074675

January 25, 2021

DECISION, ORDER, AND ORDER REMANDING

By Members K aplan, Emanuel, and Ring

On December 19, 2019, Administrative Law Judge Lisa

D. Ross issued the attached decision. The General Counsel

filed exceptions and a supporting brief, the Respondent

filed an answering brief, and the General Counsel filed

a reply brief. The Respondent filed exceptions and a

supporting brief, the General Counsel and the Charging

Party filed answering briefs, and the Respondent filed a

reply brief.1

1. Subsequent to these filings, the Respondent filed a

Motion to Include in the Record the Findings and Decision of

the Associate to the General Counsel (Division of OperationsManagement in Case AD-85). This motion asks the Board to

add to the record a letter from the General Counsel’s Division of

Operations Management stating that “no further action would

be taken regarding the attorney misconduct allegation” that had

been referred to the General Counsel by Judge Ross. The General

Counsel filed a response to the motion, indicating that he did not

take a position on whether or not the letter should be added to the

record. On January 7, 2021, the Office of the Executive Secretary

informed the parties that the Respondent’s motion would be

treated as a motion to take administrative notice of agency

proceedings. In light of the foregoing, we grant the Respondent’s

motion and take administrative notice of this disposition of the

judge’s attorney misconduct allegation.

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Appendix B

The National Labor Relations Board has delegated

its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record

in light of the exceptions and briefs and has decided to

affirm the judge’s rulings, findings, 2 and conclusions, to

adopt the judge’s recommended Order as modified and set

forth in full below, 3 and to sever and remand one issue to

the judge as explained below.

Even assuming, however, that the Respondent’s motion could

be interpreted as supplemental briefing regarding its assertion

that the judge demonstrated bias in these proceedings, we do not

consider the General Counsel’s administrative decision not to take

further action with regard to the attorney misconduct allegation

to be evidence of judicial bias.

2. The Respondent has implicitly excepted to some of the

judge’s credibility findings. The Board’s established policy is not

to overrule an administrative law judge’s credibility resolutions

unless the clear preponderance of all the relevant evidence

convinces us that they are incorrect. Standard Dry Wall Products,

91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have

carefully examined the record and find no basis for reversing the

findings.

Some of the Respondent’s exceptions allege that the judge’s

rulings, findings, and conclusions demonstrate bias and prejudice.

On careful examination of the judge’s decision and the entire

record, we are satisfied that the Respondent’s contentions are

without merit.

3. We shall modify the judge’s recommended Order to conform

to the violations found, the amended remedy, the Board’s standard

remedial language, and in accordance with our decision in Danbury

Ambulance Service, Inc., 369 NLRB No. 68 (2020). We shall

substitute a new notice to conform to the Order as modified.

29a

Appendix B

For the reasons stated by the judge, we affirm her

findings that when the Hotel Bel-Air reopened on October

14, 2011, following a 2-year closure for renovations, the

Respondent violated Section 8(a)(5) and (1) of the National

Labor Relations Act (the Act) by refusing to recognize and

bargain with the Union and by unilaterally changing unit

employees’ terms and conditions of employment.

We also affirm, for the reasons she states, the judge’s

finding that the Respondent violated Section 8(a)(3) and (1)

of the Act by refusing to rehire unit employees who were

laid off in September 2009 when the Hotel was closed for

renovations and who reapplied for their positions beginning

July 26, 2011.4 The judge found that these unit employees

numbered 152. However, she ordered reinstatement and

make-whole remedies for 139 unit employees, who were

identified by the General Counsel by the close of the

hearing and whose names are listed in Appendix A of her

decision. The General Counsel excepts, arguing that the 13

unit employees who were not identified by the close of the

hearing are also entitled to remedial relief. The General

Counsel argued likewise to the judge, but the judge did

not explain why she excluded those 13 from the scope of

her recommended Order. Accordingly, we shall sever this

issue and remand it to the judge to address the General

Counsel’s argument. At her discretion, the judge may also

reopen the record for further proceedings regarding the

4. In affirming the judge’s finding that antiunion animus

contributed to the decision not to rehire the laid-off applicants, we

do not rely on the disparity between the number who applied and

the number who were hired or on Glenn’s Trucking Co., 332 NLRB

880 (2000), enfd. 298 F.3d 502 (6th Cir. 2002), cited by the judge.

30a

Appendix B

as-yet-unidentified 13 and/or permit the parties to file

supplemental briefs. 5

A mended Remedy

Having found that the Respondent engaged in certain

unfair labor practices, we shall order it to cease and

desist and to take certain affirmative action designed

to effectuate the policies of the Act. Specifically, having

found that the Respondent violated Section 8(a)(5) and

(1) by refusing to recognize and bargain with the Union

as the exclusive collective-bargaining representative of

the unit employees, we shall order the Respondent to

recognize and bargain in good faith with the Union as

its unit employees’ exclusive bargaining representative

concerning their wages, hours, benefits, and other terms

and conditions of employment, and, if an understanding

is reached, to embody the understanding in a signed

agreement.6

5. That we are severing and remanding the issue of the 13 asyet-unidentified unit employees has no effect on the Respondent’s

obligation to immediately comply with the remedies provided below

for the 139 discriminatees whose names are listed in Appendix A of

the judge’s decision.

6. The Respondent excepts to the judge’s finding that it

unlawfully refused to recognize and bargain with the Union in

violation of Sec. 8(a)(5) and (1), but it does not argue that the judge’s

recommended affirmative bargaining order is improper if the Board

affirms the judge’s Sec. 8(a)(5) violation finding. Accordingly, we find

it unnecessary to provide a specific justification for that remedy. See

Arbah Hotel Corp. d/b/a Meadowlands View Hotel, 368 NLRB No.

119, slip op. at 1 fn. 2 (2019) (collecting cases).

31a

Appendix B

Further, having found that the Respondent violated

Section 8(a)(5) and (1) by making unilateral changes to the

terms and conditions of employment of unit employees, we

shall order the Respondent to rescind those changes at

the Union’s request and make the unit employees whole

for any loss of earnings and other benefits attributable

to its unlawful conduct. The make-whole remedy shall be

computed in accordance with Ogle Protection Service,

183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),

with interest as prescribed in New Horizons, 283 NLRB

1173 (1987), compounded daily as prescribed in Kentucky

River Medical Center, 356 NLRB 6 (2010). This makewhole remedy also requires the Respondent to make any

applicable contributions to Union benefit funds that have

not been made since the date of the unlawful changes in

accordance with Merryweather Optical Co., 240 NLRB

1213, 1216 fn. 7 (1979), and to make the unit employees

whole for any expenses they may have incurred as a result

of the Respondent’s failure to make such payments as set

forth in Kraft Plumbing & Heating, 252 NLRB 891, 891

fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). Such

amounts shall be computed in the manner set forth in Ogle

Protection Service, supra, with interest as prescribed in

New Horizons, supra, compounded daily as prescribed in

Kentucky River Medical Center, supra.7

7. To the extent that an employee has made personal

contributions to a fund that were accepted by the fund in lieu of

the Respondent’s delinquent contributions during the period of the

delinquency, the Respondent will reimburse the employee, but the

amount of such reimbursement will constitute a setoff to the amount

that the Respondent otherwise owes the fund.

32a

Appendix B

Additionally, having found that the Respondent

violated Section 8(a)(3) and (1) by unlawfully refusing to

rehire unit employees, we shall order the Respondent to

offer affected employees instatement and to make them

whole for any loss of earnings and other benefits suffered

as a result of the discrimination against them. 8 Backpay

shall be computed in accordance with F. W. Woolworth

Co., 90 NLRB 289 (1950), with interest as prescribed in

New Horizons, supra, compounded daily as prescribed in

Kentucky River Medical Center, supra. We shall also order

the Respondent to compensate affected employees for

their search-for-work and interim employment expenses

regardless of whether those expenses exceed interim

earnings. King Soopers, Inc., 364 NLRB No. 93, slip op. at

1 fn. 2 (2016), enfd. in pertinent part 859 F.3d 23 (D.C. Cir.

2017). Search-for-work and interim employment expenses

shall be calculated separately from taxable net backpay,

with interest at the rate prescribed in New Horizons,

supra, compounded daily as prescribed in Kentucky River

Medical Center, supra.

Finally, we shall require the Respondent to compensate

unit employees for the adverse tax consequences, if any,

of receiving a lump-sum backpay award, and to file with

the Regional Director for Region 31, within 21 days of the

date the amount of backpay is fixed, either by agreement

or Board order, a report allocating the backpay award to

the appropriate calendar year. Don Chavas, LLC d/b/a

Tortillas Don Chavas, 361 NLRB 101 (2014); AdvoServ

of New Jersey, Inc., 363 NLRB No. 143 (2016).

8. The “affected employees” are the 139 employees listed in

Appendix A of the judge’s decision.

33a

Appendix B

ORDER

The National Labor Relations Board orders that the

Respondent, Kava Holdings, LLC, d/b/a Hotel Bel-Air,

Los Angeles, California, its officers, agents, successors,

and assigns, shall

1. Cease and desist from

(a) Failing and refusing to recognize and

bargain with Unite Here Local 11 (the

Union) as the exclusive collective- bargaining

representative of the employees in the

bargaining unit.

(b) Chang ing ter ms and conditions of

employment of its unit employees without

first notifying the Union and giving it an

opportunity to bargain.

of their union affiliation.

(d) In any like or related manner interfering

with, restraining, or coercing employees in

the exercise of the rights guaranteed them

by Section 7 of the Act.

2. Take the follow ing affirmative action

necessary to effectuate the policies of the Act.

(a) On request by the Union, bargain with the

Union as the exclusive collective-bargaining

representative of its unit employees as

34a

Appendix B

described in section 3.A of the August 16, 2006

to September 30, 2009 collective-bargaining

ag reement between the Union and the

Respondent concerning the unit employees’

terms and conditions of employment and, if

an understanding is reached, embody the

understanding in a signed agreement.

(b) On request by the Union, rescind the

changes in unit employees’ ter ms and

c ond it ion s of employ ment t h at we r e

unilaterally implemented.

of earnings and other benefits suffered as a

result of the unlawful unilateral changes, in

the manner set forth in the amended remedy

section of this decision.

(d) Make all delinquent contributions to the

applicable benefit funds on behalf of unit

employees that have not been made as a result

of the unlawful unilateral changes, including

any additional amounts due the funds, in the

manner set forth in the amended remedy

section of this decision.

(e) Make unit employees whole for any

expenses ensuing from the failure to make

the required contributions to the applicable

benefit funds, in the manner set forth in the

amended remedy section of this decision.

35a

Appendix B

(f) Within 14 days from the date of this Order,

offer affected employees—as that term is

defined in the amended remedy section of

this decision—instatement to the positions

for which they applied or, if those positions

no longer exist, to substantially equivalent

positions, without prejudice to their seniority

or any other rights or privileges to which they

would have been entitled.

(g) Make affected employees whole for any

loss of earnings and other benefits suffered as

a result of the discrimination against them, in

the manner set forth in the amended remedy

section of this decision.

(h) Compensate unit employees for the

adverse tax consequences, if any, of receiving

lump-sum backpay awards, and file with the

Regional Director for Region 31, within 21

days of the date the amount of backpay is

fixed, either by agreement or Board order,

a report allocating the backpay awards to

the appropriate calendar years for each unit

employee.

(i) Preserve and, within 14 days of a request,

or such additional time as the Regional

Director may allow for good cause shown,

provide at a reasonable place designated by

the Board or its agents, all payroll records,

social security payment records, timecards,

36a

Appendix B

personnel records and reports, and all other

records, including an electronic copy of such

records if stored in electronic form, necessary

to analyze the amount of backpay due under

the terms of this Order.

(j) Post at its Los Angeles, California facility

(the Hotel Bel-Air) copies of the attached

notice marked “Appendix” in both English

and Spanish. 9 Copies of the notice, on

forms provided by the Regional Director

for Region 31, after being signed by the

Respondent’s authorized representative, shall

be posted by the Respondent and maintained

for 60 consecutive days in conspicuous

places, including all places where notices to

9. If the facility involved in these proceedings is open and

staffed by a substantial complement of employees, the notices

must be posted within 14 days after service by the Region. If

the facility involved in these proceedings is closed due to the

Coronavirus Disease 2019 (COVID-19) pandemic, the notices

must be posted within 14 days after the facility reopens and a

substantial complement of employees have returned to work, and

the notices may not be posted until a substantial complement

of employees have returned to work. Any delay in the physical

posting of paper notices also applies to the electronic distribution

of the notice if the Respondent customarily communicates with

its employees by electronic means. If this Order is enforced by

a judgment of a United States court of appeals, the words in the

notice reading “Posted by Order of the National Labor Relations

Board” shall read “Posted Pursuant to a Judgment of the United

States Court of Appeals Enforcing an Order of the National Labor

Relations Board.”

37a

Appendix B

employees are customarily posted. In addition

to physical posting of paper notices, notices

shall be distributed electronically, such as by

email, posting on an intranet or an internet

site, and/or other electronic means, if the

Respondent customarily communicates with

its employees by such means. Reasonable

steps shall be taken by the Respondent

to ensure that the notices are not altered,

defaced, or covered by any other material. In

the event that, during the pendency of these

proceedings, the Respondent has gone out of

business or closed the facility involved in these

proceedings, the Respondent shall duplicate

and mail, at its own expense, copies of the

notice in English and Spanish to all current

employees and former employees employed

by the Respondent at any time since July 26,

2011.

(k) Within 21 days after service by the Region,

file with the Regional Director for Region 31

a sworn certification of a responsible official

on a form provided by the Region attesting

to the steps that the Respondent has taken

to comply.

IT IS FURTHER ORDERED THAT the

issue of whether the 13 as-yet-unidentified

unit employees who applied for positions but

were not hired are entitled to remedial relief

is severed and remanded to Administrative

38a

Appendix B

Law Judge Lisa D. Ross. On remand, Judge

Ross is to address the General Counsel’s

contentions regarding the remanded issue. At

her discretion, she may also reopen the record

for further proceedings regarding the 13 asyet-unidentified unit employees and/or permit

the parties to file supplemental briefs.10 The

judge shall prepare a supplemental decision,

copies of which shall be served on all parties,

after which the provisions of Section 102.46

of the Board’s Rules and Regulations shall

be applicable.

Dated, Washington, D.C. January 25, 2021

Marvin E. Kaplan, Member

William J. Emanuel, Member

John F. Ring, Member

10. If Judge Ross chooses to reopen the record, and if the 13

are then identified, the issue of whether unidentified individuals are

entitled to remedial relief will be mooted, and the judge need not

address it.

39a

Appendix B

(Seal) National Labor Relations Board

APPENDIX

Notice to Employees

Posted by Order of the

National Labor Relations Board

A n Agency Of The United States Government

The National Labor Relations Board has found that we

violated Federal labor law and has ordered us to post and

obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join or assist a union

Choose representatives to bargain with us on

your behalf

Act together with other employees for your

benefit and protection

Choose not to engage in any of these protected

activities.

We will not fail and refuse to recognize and bargain

with Unite Here Local 11 (the Union) as the exclusive

collective-bargaining representative of our employees in

the bargaining unit.

We will not change your terms and conditions of

employment without first notifying the Union and giving

it an opportunity to bargain.

40a

Appendix B

We will not refuse to rehire you because of your

union affiliation.

We will not in any like or related manner interfere

with, restrain, or coerce you in the exercise of the rights

listed above.

We will, on request by the Union, bargain with the

Union as the exclusive collective-bargaining representative

of our employees in the bargaining unit described in

section 3.A of the August 16, 2006 to September 30, 2009

collective-bargaining agreement between the Union and

us concerning our unit employees’ terms and conditions

of employment and, if an understanding is reached, We

will embody the understanding in a signed agreement.

We will, on request by the Union, rescind the changes

in your terms and conditions of employment that we

unilaterally implemented on October 14, 2011.

We will make you whole, with interest, for any loss

of earnings and other benefits suffered as a result of our

unlawful unilateral changes to wages and benefits.

We w ill make all delinquent contributions to

applicable benefit funds that have not been made since

October 14, 2011, including any additional amounts due

the funds as provided for in the Board’s Order.

We w ill reimburse you, with interest, for any

out-of-pocket expenses you incurred because of our

discontinuation of contributions to applicable benefit

funds.

41a

Appendix B

We will , within 14 days from the date of the Board’s

Order, offer the employees listed in Attachment A

instatement to the positions for which they applied or, if

those positions no longer exist, to substantially equivalent

positions, without prejudice to their seniority or any other

rights or privileges to which they would have been entitled.

We will make the employees listed in Attachment A

whole for any loss of earnings and other benefits resulting

from our unlawful refusal to rehire them, less any net

interim earnings, plus interest, and We will also make

them whole for reasonable search-for-work and interim

employment expenses, plus interest.

W e w ill compensate you for the adverse ta x

consequences, if any, of receiving lump-sum backpay

awards, and We will file with the Regional Director

for Region 31, within 21 days of the date the amount of

backpay is fixed, either by agreement or Board order, a

report allocating the backpay awards to the appropriate

calendar years for each employee.

KAVA HOLDINGS, LLC, ET AL. D/B/A HOTEL

BEL-AIR

The Board’s decision can be found at www.nlrb.

gov/case/31-CA-074675 or by using the QR code below.

Alternatively, you can obtain a copy of the decision from

the Executive Secretary, National Labor Relations Board,

1015 Half Street, S.E., Washington, D.C. 20570, or by

calling (202) 273-1940.

42a

Appendix B

ATTACHMENT A

1. Adam Gardner

2. Alberto Duran

3. Alex Barrios

4. Allyson Tison/Tizon

5. Amanda Escobar

6. Ana Arrozola

7. Angel Loeches

8. Anthony Hop Pham

9. Antonio Diaz

10. Antonio Escobedo

11. Antonio Romero

12. Armando Alvarenga

13. Armida Huezo

14. Arturo Leon

15. Beatriz Lemis

16. Boris Shaetz

43a

Appendix B

17. Borislav Kostadinov

18. Bradley Anderson

19. Carlos Burgos

20. Carlos Gutierrez

21. Carlos Perez

22. Carmen Casiano

23. Chad Biagini

24. Corina Ivanna Ganame

25. Cristian Vargas

26. Danielle Rodriguez

27. Davis Komarek

28. David Leger

29. Delmy Alas

30. Domingo Antonio

31. Edgar Cano

32. Edith Calderon

33. Elizabeth Bono

34. Emilio Molina

35. Eric Flores

36. Erick Orozco

37. Esteban Pacheco

44a

Appendix B

38. Evaristo Vasconcelos

39. Feliciano Viscarra

40. Felipe Vasquez

41. Felix Gonzales

42. Fortino Luis Martinez

43. Francisco Alas

44. Gilberto A. Moran

45. Gilberto Diaz

46. Giovanni Rodriguez

47. Guadalupe Soto

48. Hector Jimenez

49. Hermina Urbana

50. Hignio Castellon

51. Howie Witz

52. Ignacio Escobedo

53. Inigo De La Hidalga

54. Inna Zavala

55. Ismael Casanova

56. Ismael Witz

57. Ivan Stankov

58. Jacques Felix

45a

Appendix B

59. Jaime Bravo

60. Jehane Delwar

61. Jennifer Contreras

62. Jennifer Jimenez

63. Jeremias Del Cid

64. Yixiong “Jimmy” Dong

65. Joaquin Fuentes

66. Jorge Duarte

67. Jose Bojorquez

68. Jose de Jesus Garcia

69. Jose Luis Gaeta

70. Jose Madrid

71. Jose Manzo

72. Jose Mojarro

73. Jose Polio

74. Jose Pavon

75. Jose Pinedo

76. Joseph Nava

77. Juan Carlos Pavon

78. Juan Contreras

79. Julio Cruz

46a

Appendix B

80. Julio Pedro Perez

81. Justino Castellon

82. Karoly Zsiga

83. Kenny McCabe

84. Khenk Lee

85. Laura Fergusson

86. Leslie Miller

87. Manuel Giron

88. Maria Del Cid

89. Maria Gomez

90. Maria Lourdes Nolasco

91. Maria Antoinette Albano Gonzales

92. Mario Rodriguez

93. Martin Orozco

94. Matthew Biedel

95. Miriam Martirosyan

96. Mishele Tapia

97. Mohammed Masum

98. Narciso Lopez

99. Ngoc Mihn Hoang

100. Nora Melendez

47a

Appendix B

101. Oscar Flores

102. Oscar Galdamez

103. Oscar Ingles

104. Oscar Martinez

105. Oscar Vasquez

106. Pablo Del Real

107. Patricia Miranda

108. Pedro Hernandez

109. Pedro Morales Sanchez

110. Rafael Guevarra

111. Rafael Martinez

112. Raul Salazar

113. Raymundo Avina

114. Refugio Lopez

115. Rejo Jastoreja

116. Rigoberto Carrillo

117. Rigoberto Contreras

118. Robert “Charlie” Hargitay

119. Roberto Dominguez

120. Roel Andres

121. Roger Jackson

48a

Appendix B

122. Ronald Hartling

123. Rosa Perez

124. Rudy Castellanes

125. Salvador Gonzales

126. Salvador Maldonado

127. Sapardjo Diporedjo

128. Sergio Manzo

129. Sonia Mancias

130. Sonia Reyes

131. Steve Rasmussen

132. Tomas Alvarado

133. Tomas Ramirez

134. Ulises Trejo

135. Victor Pacheco

136. Victor Venegas

137. Virginia Cruz

138. William Carranza

139. Wilson Alvaro

49a

Appendix B

Yaneth Pal encia , Sim o ne Gancayco and Sarah

Ingebritsen, Esqs., for the General Counsel.

Arch Stokes, Karl M. Terrell and Diana Dowell, Esqs.

(Stokes Wagner ALC), for the Respondent.

Kirill Penteshin and Charles Du, Esqs. (UNITE HERE

Local 11),of Los Angeles, California, for the Charging

Party.

DECISION

Statement of the Case

L is a D. R os s , Administrative Law Judge. 1 On

February 15, 2012, UNITE HERE Local 11 (the Charging

Party, Local 11 or the Union) filed an unfair labor practice

(ULP) charge against Kava Holdings, LLC, et al. d/b/a

Hotel Bel Air (Respondent). In January 2013, Region 31

held this matter in abeyance until July 29, 2016, pending

the outcome of a related case Hotel Bel Air v. NLRB, 637

F.3dAppx. 4 (D.C. Cir. 2016). In that case, the U.S. Court of

Appeals for the District of Columbia enforced the National

Labor Relations Board’s (NLRB or the Board) Order in

Hotel Bel Air, 361 NLRB 898 (2014) which adopted a prior

Board decision at 358 NLRB 1527 (2012). Region 31 issued

the instant complaint on July 29, 2016, then amended it

on December 26, 2016.

1. At the time of the trial, my name was Lisa D. Thompson.

However, since the hearing I got married and have legally changed

my name to Lisa D. Ross.

50a

Appendix B

The amended complaint (complaint) alleges that

Respondent violated Section 8(a)(3) and (1) of the National

Labor Relations Act (NLRA or the Act) when, after a

temporary closure of the Hotel, Respondent refused to

rehire or recall approximately 152 former bargaining unit

employees in order to avoid recognizing and bargaining

with the Union.

The complaint further avers that Respondent violated

Sections 8(a)(5) and (1) when, after the Hotel reopened,

Respondent refused to recognize and bargain with

the Union and made unilateral changes to terms and

conditions of employment of bargaining unit employees

without giving prior notice to and bargaining to impasse

with the Union. 2

Respondent filed its answer and amended answer,

denying all material allegations and setting forth multiple

affirmative defenses to the complaint.

This case was tried in Los Angeles, California, over 21

dates between March 13, 2017 and June 28, 2018. Counsel

for the General Counsel, Charging Party and Respondent

presented witness testimony along with a mountain of

documentary evidence. 3

2. The General Counsel withdrew the allegation in par. 9(b)

of the amended complaint based on a refusal to consider for hire.

3. The delay in issuing this decision was due, in part, to my

being on extended leave under the Family and Medical Leave Act

(FMLA).

51a

Appendix B

After the trial, counsel timely filed extensive posthearing briefs, which I have read and carefully considered.

Based upon the entire record, including the testimony of

the witnesses, my observation of their demeanor, and the

parties’ briefs, I conclude that Respondent violated the

Act as alleged.4

Findings of Fact

i. jurisdiction and labor organization status

Respondent operates a 5-star luxury hotel, the Hotel

Bel Air, in Los Angeles, California. It is undisputed

that, at all material times, Respondent’s gross revenue

exceeded $500,000 annually, and it annually purchased

and received goods valued in excess of $5000 from points

outside the State of California. Accordingly, I find that

Respondent is an employer engaged in commerce within

the meaning of Section 2(2), (6), and (7) of the Act. 5

4. Abbreviations used in this decision are as follows: “Tr.” for

the Transcript, “GC Exh. #” for the General Counsel’s exhibits, “CP

Exh. #” for Charging Party’s exhibits, “R. Exh. #” for Respondent’s

exhibits, “ALJ Exh. #” for the Administrative Law Judge’s exhibits,

“GC Br.” for the General Counsel’s brief, “CP Br.” for Charging

Party’s brief, and “R. Br.” for Respondent’s brief. Specific citations

to the transcript and exhibits are included where appropriate to aid

review and are not necessarily exclusive or exhaustive.

5. See Hotel Bel-Air, 358 NLRB 1527, 1529–1530 (where

Respondent admitted it was an employer engaged in commerce

within the meaning of Sec. 2(2), (6), and (7) the Act).

52a

Appendix B

It is also undisputed, and I find that, at all material

times, UNITE HERE Local 11 has been a labor

organization within the meaning of Section 2(5) of the Act.

ii. alleged unfair labor practices

A. Background Facts

Respondent operates the Hotel Bel Air (the Hotel)

in Los Angeles. The Hotel has been a luxury hotel

for decades. It is currently owned by the Dorchester

Collection, which also owns the Beverly Hills Hotel in Los

Angeles and other luxury hotels. Prior to September 30,

2009, the Hotel was a five-star luxury hotel.

Also prior to September 30, 2009, UNITE HERE

Local 11 was the exclusive collective-bargaining

representative for many of Hotel’s employees, including,

but not limited to, kitchen workers, dining and room

service employees, housekeepers, garage and front desk

employees, restaurant employees, guest and banquet

services employees, gardeners, painters, maintenance

employees, stewarding, and purchasing and receiving

employees. (GC Exh. 3.) Respondent and the Union were

party to a series of collective bargaining agreements

(CBA), the most recent of which was in effect from August

16, 2006 to September 30, 2009, the date the hotel closed

for renovation.

On September 30, 2009, the Hotel temporarily closed

for extensive renovation and remodeling. It laid off all

bargaining unit employees. Respondent and the Union

53a

Appendix B

engaged in effects bargaining. Key issues for negotiations

included the right of bargaining unit employees to return

to their positions upon the Hotel’s reopening and the

terms of any severance package offered to employees.

The parties bargained throughout the end of 2009 and

into the middle of 2010.

By June 7, 2010, however, Respondent unilaterally, and

without notice to the Union, implemented its “last, best and

final offer” from April 2010, and sent severance packages

and waiver and release forms to the unit employees.

Approximately 179 employees signed the waiver and

release forms, thus forfeiting their recall rights.

The Union filed an ULP charge regarding Respondent’s

actions in this regard. The Board held that Respondent

violated Section 8(a)(5) and (1), finding that a valid impasse

did not exist, and that Respondent had therefore illegally

dealt directly with unit employees, Hotel Bel Air, 358

NLRB 1527 (2012), adopted 361 NLRB 898 (2014), enfd. 637

Fed.Appx. 4 (D.C. Cir. 2016)(finding that a valid impasse

did not exist when Respondent unilaterally implemented

its last, best and final offer, and that Respondent illegally

dealt directly with unit employees regarding severance).6

The Board ordered that Respondent rescind the waiver

and release agreements signed by 179 unit members if

the Union requested and for Respondent to bargain with

the Union over the effects of the temporary shutdown.

6. The initial decision was rendered by a Board that was not

legally constituted. In 2014, a legally constituted Board affirmed

the judge’s rulings, finding and conclusions, and adopted the

recommended order to the extent set forth in the 2012 decision.

54a

Appendix B

B. Respondent’s Reopening and Job Fair

Turning back to this case, Respondent prepared

the Hotel for its reopening. (Tr. 1825, 2388.) Despite

Respondent’s arguments that the Hotel was entirely

different from the pre-closure Hotel, the Hotel remained

essentially the same five-star luxury hotel it was prior

to the renovation. More importantly, the record reveals

that the Hotel’s job descriptions and duties for most

bargaining unit positions before and after its temporary

closure remained essentially the same. (Tr. 1717–1726,

GC Exh. 9–10).

Prior to its reopening, Respondent conducted a job

fair, planned by Beverly Hills Hotel’s Director of Human

Resources Eva White (White). Respondent hired Sandra

Arbizu (Arbizu) as Respondent’s human resources

manager to prepare for the reopening. (Tr. 1860.)

Maria “Milet” Lukey (Lukey) served as Area Director

of Human Resources for both the Beverly Hills Hotel

and the Hotel Bel-Air. Lukey was the top staff member

in charge of organizing the job fair. Arbizu, under the

direction of White, Lukey and Respondent’s General

Manager Tim Lee (Lee) determined how the job fair would

run. (Tr. 1862–1863.)

Interestingly, when Union counsel asked Arbizu

whether any preparations were made to deal with the

Union upon reopening, Arbizu testified:

I guess when you –when you say “preparation”,

is –what I mean by that is that we do training on

55a

Appendix B

being good managers, following good practices.

We do training on getting people engaged. We

want to have meeting—department meetings.

We want to make sure that we provide a clean

and healthy break room, cafeteria. That we

work at making sure they have uniforms, all of

this, for is preventative kind of work that we do

to educate our managers so that your employees

do not need a third party to speak for them,

that they can come and talk to you. We have an

open-door policy. So, things like that.

Q. So in other words, taking, as you put it

preventative measures to make sure a union

doesn’t need to come, or that they don’t need

to be represented by a Union, because those

things are being taken care of?

A. Well, yeah. To be good managers, to be

good people to their staff.

(Tr. 1906–1907.)

It is undisputed that Respondent held its job fair

on July 26, 27 and 28, 2011. In advertising the job fair,

Respondent sought candidates with “exceptional talent,”

who had “a passion for excellence, a warm, friendly and

positive attitude, and strong verbal communication skills.”

(Tr. Vol. 4 at 16–17, GC Exhs. 6 and 7.) “Previous luxury

hospitality experience and the ability to thrive in a fastpace (sic) environment” was “desirable.” (GC Exh. 6–7).

56a

Appendix B

The first day of the job fair was reserved for former

Hotel employee applicants. Respondent accepted

applications from and/or interviewed the general public

on July 27 and 28. Interview forms indicated the day and

time—AM or PM—applicants were interviewed, making

it clear which applicants were former employees. (GC Exh.

2.) It is undisputed that approximately 306 hourly positions

were available at the time of the Hotel’s job fair. (Tr. 536.)

1. Initial interviews

The interviewing process had three rounds: the

initial interview, the departmental interview, and the

final interview. The initial interview lasted from a few

seconds to a few minutes, and the interviewers asked the

same three questions:

What position are you applying for?

Are you available to work weekends/holidays?

Why do you want to work at Hotel Bel Air?

The initial interviewers were instructed to rate

the applicants on Appearance, Self Confidence and

their Communication Skills. Initial interviewers were

responsible for completely filling out the initial interview

section of the candidate’s interview form then determining

whether the applicant advanced to the next level.

Respondent’s first round interviewers had discretion

to recommend advancing the applicant to the next round

of interviews. The interviewers were instructed to put the

applications for those advancing to the second round in a

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Appendix B

blue “yes” box and to put those not advancing in a pink

“no” box. (Tr. 1776–1777, 1867, 2054–2055, 2097, 2107.)7

Record evidence demonstrates that, out of 176 former

employee applicants 67 of them did not advance after their

initial interview, thus assuring Respondent that a majority

of the bargaining unit would not consist of former unit

employees (176 applicants minus 67=109, less than 50%

of the unit upon reopening). 8

Moreover, any applicant whose application went into

a blue “yes” box should have received a second interview

with a departmental head or the equivalent. However, the

record is replete with examples of former unit employee

applicants who, based on the documentary evidence,

should have received a departmental interview but did

not. For example:

Irma Zavala (Zavala) worked for the Hotel for

20 years as a room attendant (aka housekeeper),

then as a uniform attendant. On the morning of

July 26, Khoi Evans (now Khoi Luevano), the

7. There is no evidence who took the applications put in the

blue box to the departmental reviewers.

8. This fact is actually irrelevant since there is a rebuttable

presumption that the Union enjoyed majority support after the

expiration of its collective bargaining agreement with Respondent,

Golden State Warriors, 334 NLRB 651, 653–54 (2001). However, this

statistical information is included herein as evidence of antiunion

animus which is discussed later in this decision. See Greenbrier Rail

Services, 364 NLRB No. 30, at 40–41, citing Golden Day Schools v.

NLRB, 644 F.2d 834, 838 (9th Cir. 1981).

58a

Appendix B

Assistant Director at the Beverly Hills Hotel,

interviewed Zavala in the first round. Evans

gave Zavala a positive review, yet Zavala did

not receive a second interview. (Tr. 385–387,

2078–2079, see also GC Exh. 2 at 481.) Zavala’s

interview form gives absolutely no reason why

she did not have a departmental interview.

Respondent has not offered any explanation

why Zavala was not hired.

Carmen Casino (Casino) worked for the Hotel

as a room attendant for 22 years—from 1987

until September 30, 2009. Evans/Luevano

interviewed Casino and gave her a positive

rating. Yet, there are no markings on the

interview form that Casino was advanced to

a departmental interview, and Respondent

did not hire her. (GC Exh. 2 at 254–257, Tr.

2072–2076.)

Ana Arrazola (Arrazola) worked as a room

attendant for the Hotel for 13 years – from

1996 until September 30. 2009. She reapplied

for her position. Evans/Luevano interviewed

A rrazola and gave her a positive rating.

However, Arrazola did not get a departmental

interview and was not hired. (Tr. 2079– 81, GC

Exh. 2 at 489–492.) Respondent has not offered

a reason why Arrazola was excluded from the

hiring process.

Carlos Burgos (Burgos) worked for the Hotel

as a night cleaner for 16 years—from 1993 to

59a

Appendix B

September 30, 2009. (GC Exh. 2 at 109–112.)

He reapplied for his former position. Evans/

Luevano gave Burgos a positive rating, but he

did not receive a departmental interview and

was not hired. (Tr. 2081– 2084). Respondent

again offered no explanation as to why Burgos

was not rehired.

Pablo Del Real (“Del Real”) worked for

Respondent for approximately 21 years.

(Tr. 1126.) Del Real initially worked as a

housekeeper then as a painter in the engineering

department. In fact, for approximately 15 years,

Del Real intermittently worked as a substitute

supervisor whenever his supervisor was absent.

Del Real reapplied for his job as a painter but

was excluded from consideration after his initial

interview because he did not “possess minimum

experience/skills requirement.”(GC Exh. 2 at

14). Yet, Respondent offered a painter/engineer

position to non-former employee applicant

Fernando Diaz (Diaz), who had no experience

working in a hotel and had previously been

working as a cable installer for the past two

years. (GC Exh. 2 at 1077–1081). Incredibly,

Respondent noted on Diaz’s interview notes

that he had “good experience.” (Id. at 1077.)

2. Departmental interviews

It is undisputed that, if an applicant advanced to

the second round, the candidate next interviewed with

a department manager. These second interviews often

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Appendix B

occurred behind a barrier from where the initial interviews

took place. During the departmental interviews, the

department head asked pre-prepared but more detailed

questions and recorded the applicant’s answers further

down on the candidate’s interview form.

Like the initial interviewers, the departmental

managers had discretion to choose which applicants, out

of those passed on to them, they would interview. (Tr.

1912, 2304, 2398–2399.)

However, even at the second stage of the interview

process, unusual anomalies occurred. Specifically, in many

cases in which Respondent’s documents indicate that the

applicant may have received a departmental interview,

I conclude the applicant did not, because the manner in

which these forms were completed (or not completed)

indicates that there was no interview. For example, I turn

to the interview forms completed (or not completed) by

Andrey Godzhik (Godzhik).

I infer from the record that the initials AG on many

of the interview forms are those of Andrey Godzhik, a

manager for Wolfgang Puck’s restaurant at the Hotel. (Tr.

555.) While all departmental managers were instructed

to complete the section of the interview form under

departmental interview (Tr. 533), the record demonstrates

that Godzhik did not do so with regard to many of the

applicants he excluded from the hiring process.9

9. The Union in its brief states that Godzhik rejected 31 former

employee applicants. CP Br. at 10.

61a

Appendix B

Specifically, the record reveals that when Godzhik

interviewed applicants, he filled out the departmental

form in full. (See e.g., GC Exh. 2 at 359–360). However,

when he did not fill out the form, but merely initialed it,

I infer he did not interview the applicant, but summarily

excluded the applicant from the hiring process. I draw

this inference from several factors.

First, Respondent did not call Godzhik as a witness

and has not indicated that he was unavailable to testify.

Second, Respondent’s brief at p. 31 states that the

departmental interviews were largely conducted by

departmental managers. However, Godzhik was not

a departmental manager. Thus, it is unlikely that he

interviewed the many applicants on whose forms his

initials appear.

Finally, I find that the reasons given for excluding

these former employee applicants are, in many cases,

preposterous. Specifically, below are examples of

former employee applicants who I infer did not have a

departmental interview despite the presence of Godzhik’s

initials on their interview forms:

Salvador Maldonado (Maldonado) worked

as a server in the Hotel’s restaurant for

approx i mat ely 2 5 yea rs —f rom 19 8 4 t o

September 30, 2009. (GC Exh. 2 at 298–301).

He reapplied for his former position. Evans/

Luevano gave him a positive rating in the

initial interview. (Tr. 2084–2087). However, the

interview form indicates that Godzhik excluded

62a

Appendix B

Maldonado from consideration because he did

not “possess the minimum experience/skills for

the server position for which he was applying.”

Lukey, the job fair coordinator, interviewed

Thomas Alvarado (A lvarado) on July 26.

Alvarado worked at the Hotel for approximately

25 years—rom 1984 through 2009. Although

A lva r a do supp o se d ly a d va nc e d t o t he

departmental interview, Godzhik excluded

Alvarado from the hiring process due to his

“unacceptable job stability.” (GC Exh. 2 at

145–148.)

Oscar Martinez (Martinez) worked for the

Hotel for approximately 10 years – from 1999

through 2009. (GC Exh. 2 at 113– 116). He

was previously a busboy and reapplied for his

former position. He received a positive initial

evaluation from Jonathan Mattis (Mattis),

then the Hotel’s Director of Marketing. Yet

Godzhik summarily excluded Martinez from

further consideration as a busboy due to his

“unacceptable job stability.”

Elizabeth Bono (Bono) worked as a bartender

at the Hotel for approximately 12 years—

from 1997 to 2009. She reapplied for her

former position. Lukey gave Bono a positive

rating. However, Godzhik again summarily

excluded Bono from further consideration due

to “unacceptable job stability.” (GC Exh. 2 at

373–376.)

63a

Appendix B

Antonio Diaz (Diaz) worked for Respondent

for approximately 23 years – from 1986 until

September 30, 2009—as a mini-bar attendant.

He reapplied for his former position. Mattis gave

Diaz a positive rating on his initial interview.

(GC Exh. 2 at 453 – 456, Tr. 2111–2112.)

Nevertheless, Godzhik summarily excluded

him from consideration on the grounds that

he did not “possess the minimum experience/

skills to be a bartender.” However, Respondent

offered non-former employee applicant Divania

Minc a position as a mini bar attendant where

she had only three years of hotel experience.

Respondent rated her as having “[s]trong

experience for this position.” (GC Exh. 2 at

1465–1468.)

Oscar Galdemez (Galdemez) was a houseman at

the Hotel for 10 years prior to 2009. He reapplied

for his former position. Evans/Luevano gave

Galdemez a favorable assessment at his initial

interview. (GC Exh. 2 at 19–20). Despite this,

Galdemez did not get a departmental interview

and there is no explanation why he was not

advanced in the record.

Similarly, there was no explanation why

Jeremias Del Cid (Del Cid), who was a

housekeeping supervisor at the Hotel from

1986 to 2000 (GC Exh. 2 at 50–53), and Minh

Ngoc Hoang (Hoang), a seamstress/uniform

attendant, who worked for the Hotel from

1990-2009, both of whom reapplied for their

64a

Appendix B

former positions and received a favorable initial

assessment, did not receive a departmental

interview. (GC Exh. 2 at 125–128.)

Juan Contreras Torres (Torres) was a busboy

for the Hotel for approximately five years

– from 2004 to 2009. He reapplied for his

former position. Torres received a favorable

rating on the initial interview but did not get

a departmental interview. (GC Exh. 2 at 65356). An unknown person opined that Torres

lacked “hospitality/communication skills” and

“did not possess the minimum experience/

skill requirements for the position”. There is

no showing in this record as to how hospitality/

communication skills are relevant to the job of

a busboy.

In contrast, Respondent offered Kevin Gilly

a busser position where he listed no busser

experience on his application (GC Exh. 2 at

1176–1179.) Respondent also hired Hong Moon

(Moon) as a busser, despite rating Moon as

having “basic experience, training needed”

(Id. at 1488-1492). Lastly, Respondent offered

a busser position to Paris Ramirez who had no

luxury or hotel experience and had not worked

in a restaurant in the past four years (Id. at

636–640).

65a

Appendix B

3. Final interviews

It is further undisputed that, if the applicant was

advanced passed the departmental interview, the last

stage was the final interview, which were mostly conducted

by Hotel Manager Christoph Moje (Moje), a different

position from Respondent’s General Manager. These

interviews were mostly conducted in a set of trailers

across the street from the Hotel. (Tr. 2563). Moje asked

each applicant the questions listed in, and then completed,

the final interview section of the interview form. (GC

Exh. 2; Tr. 533.) He interviewed every applicant that

was presented to him, and he made his decisions to hire

or reject the applicant immediately after the interview.

(Tr. 2564–2565).

It is undisputed that, for approximately 306 job

openings available, and out of the approximately 176

former Hotel employee applicants who applied for the 306

jobs available, only 24–25 former unit employees were

hired during the job fair. (Tr. 536–538.)10 This means that

Respondent rejected 152 out of 176 former unit employees

who applied/reapplied for their former positions. (GC Exh.

52, see also Appendix A attached to this decision, see

10. Several former Hotel employees were hired late in the

process. Lucinda Landers, a former Hotel waitress, received a very

unfavorable assessment from Godzhik at the departmental interview.

(GC Exh. 2 at 359–360, Tr. 2224–2229, 2234.) Yet, she was hired in

August 2011. The General Counsel identified 139 former employees

who were subsequently rehired after the job fair concluded. Their

names appear in GC Exh. 51 (Tr. 1603–1609). However, Lucinda

Landers does not appear on this list. (Id.).

66a

Appendix B

GC Br. at Exh. 1). The former unit employee applicants

who were rejected were qualified for the open positions,

and many had several prior years of positive evaluations

while they worked for Respondent. (GC Exh. 29.) These

included, but are not limited to, former employees Irma

Zavala, Juan Pablo Contreras Torres, Amanda Escobar,

and Pablo del Real, all of whom had positive work histories

while employed by Respondent.

In addition, the record demonstrates that some of

the rejected former employee applicants worked for

Respondent for 20 years or longer. (See, e.g., GC Exh.

2 at 141–148, 254–257, 441–444, 481–484.) Out of the 176

former employee applicants, at least 64 (36%) were not

given a departmental interview. (GC Exh. 2.) Out of the

64 former employee applicants dismissed at this stage,

around 42 (65%) had worked at the Hotel for five years or

more, and around 29 (45%) had at least 10 years tenure

with Respondent.

C. Refusal to Recognize/Bargain with the Union

As stated above, on or about September 30, 2009,

when the CBA expired, Respondent temporarily closed for

renovations. All bargaining unit employees were laid off.

Record evidence reveals that Respondent clearly intended

to reopen the Hotel as it continued to employ managers,

directors, accounting employees, engineering employees

and security. It also planned, coordinated and conducted

its job fair, announced the job fair to the public as well

as the Union and intended to hire employees and re-staff

itself in advance of its reopening in October 2011.

67a

Appendix B

On or about October 14, 2011, Respondent reopened

the Hotel. That same day, the Union and unit employees

picketed across the street from the Hotel. (Tr. 629.)

Since the Hotel reopened in October 2011, it is

undisputed that Respondent has not recognized the

Union as the exclusive bargaining representative for

unit employees. (Tr. 621, see also GC Exh. 1(r) at 6.) It is

further undisputed that Respondent did not provide the

Union with notice that it was withdrawing recognition

of the Union (Tr. 621, 626). To date, Respondent has

yet to recognize the Union since its reopening. To date,

Respondent has yet to bargain with the Union over any

terms and conditions of employment for the bargaining

unit prior to and after the Hotel’s September 30, 2009

shutdown, the events leading up to, during or after the

job fair, or any terms and conditions of employment for

the bargaining unit after the Hotel reopened.

D. Unilateral Changes to the Terms/Conditions of

Employment of Bargaining Unit Employees

Since the Hotel reopened in October 2011, Respondent

unilaterally made th

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