Opposition Brief — Kava Holdings, LLC, dba Hotel Bel-Air, Petitioner v. National Labor Relations Board

Supreme Court briefMay 6, 2024

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No. 23-1085

In The

Supreme Court of the United States

Kava Holdings LLC, dba Hotel Bel-Air,

Petitioner,

National Labor Relations Board and

UNITE HERE Local 11,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF RESPONDENT UNITE HERE

LOCAL 11 IN OPPOSITION TO

PETITION FOR CERTIORARI

Henry M. Willis

Counsel of Record

Kirill Penteshin

Schwartz, Steinsapir,

Dohrmann & Sommers LLP

6300 Wilshire Blvd.

Suite 2000

Los Angeles, CA 90048

(323) 655-4700

hmw@ssdslaw.com

Counsel for Respondent

UNITE HERE Local 11

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

6/11/08

12:44:0

QUESTION PRESENTED

Petitioner Kava Holdings LLC dba Hotel Bel-Air

withdrew recognition from UNITE HERE Local 11 in

2011, when it reopened following a temporary shutdown for remodeling. The Hotel claimed it had the

right to do so because it had replaced a majority of its

former unionized workforce with new employees hired

off the street.

The National Labor Relations Board held, however,

that the Hotel had violated Section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3), by

discriminatorily denying reemployment to its unionized employees. It based this conclusion on its review

of the Agency Record in this case, consisting of the

testimony of 36 witnesses and nearly 200 exhibits, including the extensive notes and other records created

during the Hotel’s interview process.

The Board also held that the Hotel had violated Section 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5), by withdrawing recognition from Local 11 following this temporary closure because the Hotel’s unionized employees

had a reasonable expectancy of recall when the Hotel

reopened.

The Ninth Circuit upheld both aspects of the Board’s

decision. The Hotel has petitioned for review, however, only concerning the first issue, identifying the following question presented:

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?

iii

LIST OF PARTIES

The Petitioner is Kava Holdings LLC dba Hotel BelAir. The Respondents are the National Labor Relations Board and UNITE HERE Local 11, which intervened in both the Board proceedings and on review of

the Board’s decision by the Ninth Circuit.

TABLE OF CONTENTS

Page

QUESTION PRESENTED..................................

LIST OF PARTIES..............................................

iii

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

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

vii

INTRODUCTION ...............................................

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

REASONS FOR DENYING THE PETITION....

A. The Hotel’s Petition Rests on a

Mischaracterization of the Board’s

Decision.......................................................

B. No Actual Circuit Split Exists...................

CONCLUSION ....................................................

vii

TABLE OF AUTHORITIES

Page

Cases

AutoNation, Inc. v. NLRB,

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

Fall River Dyeing & Finishing Corp. v. NLRB,

482 U.S. 27 (1987)............................................

Great Lakes Chem. Corp. v. NLRB,

967 F.2d 624 (D.C. Cir. 1992)..........................

5-6

Howard Johnson Co. v. Detroit Local Joint

Executive Board,

417 U.S. 249 (1974)..........................................

The Monrosa v. Carbon Black Export, Inc.,

359 U.S. 180 (1959)..........................................

2-3

NLRB v. Pittsburgh S.S. Co.,

340 U.S. 498 (1951)..........................................

2, 5

Nichols Aluminum, LLC v. NLRB,

797 F.3d 548 (8th Cir. 2015)............................

Phelps Dodge Corp. v. NLRB,

313 U.S. 177 (1941)..........................................

Stern Produce Co. v. NLRB,

97 F.4th 1 (D.C. Cir. 2024)..............................

U.S. Marine Corp. v. NLRB,

944 F.2d 1305 (7th Cir. 1991)..........................

6-7

STATUTES

National Labor Relations Act

Section 8(a)(3)...........................................

i, 2, 5-7

Section 8(a)(5)..................................................

INTRODUCTION

Petitioner claims that this Court needs to grant

certiorari to resolve a purported split between the circuits as to whether the National Labor Relations

Board may find an 8(a)(3) violation based on merely

“generalized” anti-union animus without a showing

that this animus played a role in the specific employment decisions found to be discriminatory. The problem with the Hotel’s framing of this question is that it

rests on a plainly false premise, because the Board

never took the extreme position that the Petitioner

claims it did.

On the contrary, the Administrative Law Judge and

the Board both held that the Hotel’s anti-union animus was a motivating factor in its failure to hire the

majority of bargaining unit employees it interviewed

before reopening. They based this conclusion on a

wealth of evidence: the “inconsistent, nonsensical and

patently false justifications” offered by the Hotel for

rejecting 152 out of 176 job applications by bargaining

unit employees while hiring facially less qualified—

and sometimes unqualified—applicants off the street,

along with the Hotel’s history of trying to oust the

Union by eliminating its unionized workforce and its

admission that it planned on preventing its new workforce from unionizing. The Hotel’s claim that the

Board did not find any nexus between the Hotel’s antiunion animus and its discriminatory refusal to hire its

former staff is simply false: its own words and actions

supplied that nexus.

The Hotel goes on to devote the major part of its Petition to attempting to minimize the evidence on which

the Board relied and arguing how it could be interpreted differently. Those arguments only show, however,

why certiorari should not be granted in this case.

As the Court stated in NLRB v. Pittsburgh S.S. Co.,

340 U.S. 498 (1951), this Court “is not the place to review a conflict of evidence nor to reverse a Court of

Appeals because were we in its place we would find the

record tilting one way rather than the other.” Id. at

503. That policy makes even more sense today, with

the explosion of litigation in every Circuit. There is no

compelling reason to give the Petitioner a forum to resurrect claims that the Administrative Law Judge, the

Board and the Ninth Circuit each found unpersuasive.

There is, moreover, no split between the circuits

that could justify a grant of certiorari in this case. The

decisions from other circuits cited by the Hotel to establish this supposed split all involved claims of discrimination against individual workers based on their

individual union activities—not discrimination

against an entire of group of workers based on their

association with the Union. What was relevant in

those individual cases is entirely beside the point in

this case involving “wholesale discrimination” against

all of the Hotel’s employees represented by the Union

who sought to return to work.

And even if there were an actual circuit split on this

issue, this case would still not be an appropriate vehicle for resolving it, for the simple reason that the Board

has established the sort of nexus between animus and

illegal acts that the Hotel says is necessary in every

Section 8(a)(3) case. Furthermore, as the Ninth Circuit

noted, the Hotel had the opportunity to try to prove

that it had lawful reasons for not hiring any of these

individual bargaining unit employees, but failed to do

so. There is no reason to grant certiorari only to end up

in the same place where we started.

This Court has historically limited its discretionary

jurisdiction to “meaningful litigation,” The Monrosa v.

Carbon Black Export, Inc., 359 U.S. 180, 184 (1959),

and avoided deciding questions of law, even important

ones, in cases where that decision would have no practical impact. In this case there are no important issues meriting review, but, even if there were, the Petitioner would still lose on remand. The Court should

deny the Hotel’s Petition.

STATEMENT OF THE CASE

Local 11 relies on and incorporates by reference the

NLRB’s Statement of the Case.

REASONS FOR DENYING THE PETITION

A. The Hotel’s Petition Rests on a

Mischaracterization of the Board’s

Decision

The Hotel argues that the NLRB relied on evidence

of merely generalized anti-union animus on its part,

with no effort to establish a nexus between that animus and its refusal to recall the vast majority of its

bargaining unit employees. The Administrative Law

Judge’s, NLRB’s and Ninth Circuit’s decisions show

that the Hotel’s claim is simply false.

The Administrative Law Judge dealt with this issue

in depth. She found that the Hotel repeatedly rejected

bargaining unit employees’ applications for no discernible reason (370 NLRB No. 73, slip opinion at 11, 13),

or for reasons that were preposterous on their face (Id.,

slip opinion at 13), or for reasons that were patently

false. (Id., slip opinion at 12). She contrasted that evidence with the Hotel’s hiring of applicants with minimal qualifications, rejecting, to take one example, an

employee with five years job experience as a busboy at

the Hotel because he “did not possess the minimum

experience/skill requirements for the position,” while

hiring other applicants for that position who had little

or no experience and who, in the words of the interviewer, “needed training.” (Id., slip opinion at 13)

As the ALJ pointed out, this combination of the Hotel’s “baseless, unreasonable, [and] contrived” justifications, rejections of dozens of applicants for no discernible reason whatsoever, and plainly inconsistent

reasons for rejecting bargaining unit applicants while

hiring inexperienced applicants off the street provided

all the evidence necessary to find that anti-union animus drove the Hotel’s refusal to hire these employees.

(Id., slip opinion at 12) The ALJ found further support

for that finding in the Hotel’s earlier efforts to rid itself of its unionized workforce (Id., slip opinion at 12,

n.11), the Hotel’s separate scheduling of interviews of

bargaining unit members in order to make it possible

to identify them throughout the interview process (Id.,

slip opinion at 8), and the admission by an HR manager that the Hotel planned on preventing its new

workforce from unionizing. (Id., slip opinion at 8) Finally, the ALJ considered the sheer number of bargaining unit employees whom the Hotel rejected—152

out of 176—as further evidence.

The Board affirmed the ALJ’s findings and adopted

her analysis—with one exception, electing not to rely

on that disparity between the number of bargaining

unit employees who applied for their old jobs (176)

and the number hired (24). (Id., slip opinion at 1, n.4)

The Board found, in agreement with the ALJ, that the

Hotel’s actions and statements during the hiring process itself established the nexus between its antiunion animus and its refusal to hire these employees.

The Ninth Circuit likewise held that this evidence—

Kava’s prior unfair labor practices, HR manager Arbizu’s testimony, job fair records showing disparate

treatment, and the Board’s finding of pretext—was

“more than substantial evidence of Kava’s generalized

animus against former employees based on their

union affiliation” and that this animus was a motivating factor in Kava’s decision not to hire the union-affiliated former employees. Kava Holdings, LLC v.

NLRB, 85 F.4th 479, 490-91 (9th Cir. 2023). The Ninth

Circuit correctly approached this question as it would

in any other case in which anti-union motivation was

at issue, by reviewing the factual underpinnings of

the Board’s holdings under the substantial evidence

standard. There is nothing in its decision, or the

Board’s, that requires review by this Court.

Congress did not, in any event, intend this Court to

undertake review of every such run-of-the-mill dispute

over application of the law to the facts of a particular

case; that work is reserved for the Courts of Appeals.

Pittsburgh S.S. Co., 340 U.S. at 502. Granting certiorari would be both unnecessary and a mistake.

B. No Actual Circuit Split Exists

Kava insists, however, that the National Labor Relations Act requires more than what the Board held:

according to the Hotel, in order to find that an employer has violated Section 8(a)(3) of the Act the Board

must find that the employer was driven by anti-union

animus directed at each particular employee because

of that employee’s individual actions. That is not and

never has been the law.

On the contrary, the Hotel’s distinction between

“generalized” and “individualized” animus is completely specious. The Act has from its beginnings prohibited both discrimination against a group of employees based on their mere association with a union—what

the D.C. Circuit in Great Lakes Chem. Corp. v. NLRB,

967 F.2d 624, 628 (D.C. Cir. 1992) labeled “wholesale

discrimination”—as well as “retail discrimination”

that singles out particular employees based on their

individual union activities.1

This Court has, in fact, held that the sort of wholesale discrimination that the Hotel practiced in this

case violates the Act. Howard Johnson Co. v. Detroit

Local Joint Executive Board, 417 U.S. 249, 261 n.8

(1974) (successor employer violates the Act if it

“refuse[s] to hire the employees of his predecessor . . .

to avoid having to recognize the union”); accord, Fall

River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27,

40-41 (1987). The Hotel’s insistence that all Section

8(a)(3) cases must be treated as individual discrimination cases is simply wrong as a matter of law.

The courts have recognized, moreover, that these

wholesale discrimination cases call for different evidentiary and substantive approaches. As the Seventh

Circuit held, in another refusal to hire/union avoidance case:

U.S. Marine argues that, because the ALJ heard

testimony from only twelve of the thirty-four former Chrysler employees involved in this case, it

would be unfair to uphold the Board’s determination that all of the former Chrysler employees would

have been hired. However, U.S. Marine’s unlawful

conduct created any uncertainty concerning whether substantially all of the former Chrysler employees would have been hired. Because the company

1 This form of discrimination, in fact, long predated the passage of the Act. As Justice Frankfurter noted in Phelps Dodge

Corp. v. NLRB, 313 U.S. 177, 183 (1941), "The denial of jobs to

men because of union affiliations is an old and familiar aspect of

American industrial relations."

may not be permitted to benefit from its discriminatory activities, such uncertainty must be resolved

against U.S. Marine.

U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1321 (7th

Cir. 1991). Similarly, the Board in this case did not

need to examine the records for each of the 152 bargaining unit employees whom the Hotel rejected in order to conclude that it had discriminated against them.

None of the other Circuits’ decisions cited by the

Hotel have applied the Hotel’s extreme and ahistorical argument to a “wholesale discrimination” case. On

the contrary, each of those cases concerned the firing,

suspension or other discipline of an individual worker,2

not the sort of wholesale discrimination that the Hotel

committed in this case against a group of employees

because they had been part of the bargaining unit before the shutdown.

Those courts’ concern with establishment of a nexus

between the employer’s general anti-union animus

and its treatment of an individual worker made sense

in those cases, which were pure “retail discrimination” cases. That same requirement for proof of individualized nexus in a “wholesale discrimination” case,

on the other hand, not only makes no logical sense,

but would effectively immunize the most harmful

forms of group discrimination by requiring evidence

on an issue—the employer’s individualized animus to2 Nichols Aluminum, LLC v. NLRB, 797 F.3d 548 (8th Cir.

2015) (one striker out of more than 100 fired for subsequent

workplace incident with strikebreaking coworker); AutoNation,

Inc. v. NLRB, 801 F.3d 767 (7th Cir. 2015) (upholding Board's

finding of 8(a)(3) violation in case of suspension of individual

worker suspected of promoting the union); Stern Produce Co. v.

NLRB, 97 F.4th 1 (D.C. Cir. 2024) (written warning given to individual accused of harassing coworker).

ward particular discriminatees—that is simply irrelevant in a “wholesale discrimination” case.

Once we account for the difference between those

types of cases it becomes clear that there is simply no

split between the Circuits that could support certiorari in this case. The question in both “wholesale” and

“retail discrimination” cases is the same: is there substantial evidence to support the General Counsel’s

claims and the Board’s findings? The fact that different courts have proposed different approaches in cases involving different claims and types of evidence

hardly creates a split between the circuits, much less

one calling for review by this Court. The Hotel’s Petition should be denied.

CONCLUSION

For the foregoing reasons, the Court should deny

the Petition for certiorari filed by Kava Holdings LLC

dba Hotel Bel-Air.

Respectfully submitted,

henry M. WIllIs

Counsel of Record

KIrIll PenTeshIn

SChwarTz, STeInsapIr,

dohrmann & Sommers LLP