The panel said "substantial evidence supports the board's finding of anti-union animus," including the company's prior linked labor violations, a human resources representative's testimony about the reopening plans and the records from its job fair, the panel said. Wednesday's ruling ends a legal dispute that dates back to 2009, when Hotel Bel-Air closed for extensive remodeling and laid off its workers, who were represented by UNITE HERE Local 11. The hotel held a job fair ahead of its 2011 reopening and only rehired a sliver of the more than 170 former employees who applied. The company rebuked the union and tore up their contract on the grounds that it did not represent the reconstituted workforce, and the union filed an unfair labor practice charge with the NLRB.
The suit languished from January 2013 to July 2016 while a related dispute worked its way through the federal courts, and the NLRB finally sided with the union in January 2021. The board backed a judge's finding that the company engaged in "blatant discriminatory treatment" by rejecting so many qualified ex-employees, ordering the company to rehire the denied applicants with back pay. The hotel argued on appeal that it rejected the bulk of the former workers not because hiring them would maintain the tie to Local 11 but because it sought "a different type of employee" than it employed before the remodel. Specifically, the company argued that its past iteration sought to provide a "quiet refuge" with "unseen" staff, while its new incarnation emphasized service.
The board leaned on the hiring record in its response, arguing that the company "demonstrated extensive pretext and bias" in rejecting the ex-employees by departing from hiring protocols, disregarding interviewers' recommendations and offering flimsy reasons for the rejections. Wednesday's panel said several pieces of evidence support the board's finding. The board inferred that Hotel Bel-Air was opposed to the union based on the prior case, in which it found the company violated its duty to bargain with Local 11 by cutting short negotiations over the renovation plan and offering workers deals to waive their recall rights. That violation was close in time and directly linked to the reopening plan, so it was fair for the board to infer ill intent, the panel said. The board likewise reasonably interpreted an HR official's testimony that the company took "preventative measures" to keep the union out during the rehire plan to betray its bias, the panel added. And the company's business-model argument doesn't stand up to the judge's "detailed analysis of Kava's own records," the panel said, shooting down the hotel's argument that the board "cherry-picked" examples of unfair rejections.
"Kava does not point to any evidence that the examples the board provided are not representative of the former employees as a whole," the panel said. "Because the board found that Kava's asserted reasons for not hiring the former employees were pretextual, Kava cannot prove this affirmative defense." The panel also upheld the board's finding that the hotel violated the National Labor Relations Act by refusing to bargain with Local 11 after the reopening and unilaterally setting new job terms and conditions.
UNITE HERE Local 11 co-president Kurt Petersen called Wednesday's decision "an incredible, long-overdue victory for the former workers of the Hotel Bel-Air, who were kicked out of the hotel for no other reason than the hotel's desire to bust the union." "These illegal and immoral practices have no place in our city," he said. "The decade-long delay demonstrates the critical need for labor law reform." The union's attorney, Kirill Penteshin of Schwartz Steinsapir Dohrmann & Sommers LLP, echoed Peterson. "The Hotel Bel-Air has managed to delay accountability for more than a decade by filing one fruitless appeal after another," Penteshin said. "That ends today. We look forward to seeing the workers finally get the justice they deserve." An NLRB representative declined to comment. Representatives of the hotel did not immediately respond to a request for comment.
U.S. Circuit Judges Ryan Nelson, Danielle Forrest and Jennifer Sung sat on the panel for the Ninth Circuit. The NLRB is represented in-house by Ruth Burdick, Usha Dheenan and Michael Hickson. The hotel is represented by Arch Stokes, Diana Lerma and Karl Terrell of Stokes Wagner ALC. The union is represented by Kirill Penteshin of Schwartz Steinsapir Dohrmann & Sommers LLP. The case is Kava Holdings LLC v. NLRB, case number 21-70225, in the U.S. Court of Appeals for the Ninth Circuit.
--Editing by Emma Brauer.
Update: This article has been updated to include comment from the union and its counsel.
Read more at: https://www.law360.com/employment/articles/1734373/hotel-illegally-shed-union-amid-renovation-9th-circ-says?copied=1.