Hooks et al v. Remington Lodging and Hospitality, LLC
Filing
30
DECISION AND ORDER: on Petition for Injunctive Relief 1 and Motion to Dismiss 18 . Signed by Judge Sharon L. Gleason on 03/18/2014. (AEM, CHAMBERS STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
RONALD K. HOOKS, REGIONAL
DIRECTOR NATIONAL LABOR
RELATIONS BOARD REGION 19,
Petitioner,
v.
REMINGTON LODGING &
HOSPITALITY, LLC, d/b/a THE
SHERATON ANCHORAGE,
Respondent.
Case No. 3:13-cv-00213-SLG
DECISION AND ORDER ON PETITION FOR
INJUNCTIVE RELIEF AND MOTION TO DISMISS
Ronald K. Hooks is Regional Director of the Nineteenth Region of the National
Labor Relations Board (the “Board” or “NLRB”). Before the Court at Docket 1 is the
Petition for Injunctive Relief Pursuant to § 10(j) 1 of the National Labor Relations Act (the
“NLRA,”), 2 filed by Petitioner Regional Director Hooks for and on behalf of the Board.
Respondent Remington Lodging & Hospitality, LLC d/b/a The Sheraton Anchorage
(“Remington”), which manages the Sheraton Hotel in Anchorage, Alaska (the “Hotel”),
opposed the petition, and Petitioner replied. 3
1
29 U.S.C. § 160(j).
2
29 U.S.C. § 151 et seq.
3
Docket 17 (Pet. Opp’n); Docket 21 (Pet. Reply).
Also before the Court at Docket 18 is Remington’s motion to dismiss. Petitioner
opposed the motion and Remington replied. 4 Upon the Court’s request, the parties filed
supplemental briefing on limited issues. 5
The Court heard oral argument on both the petition and the motion on January
10, 2014. 6 For the following reasons, the Court will deny the motion to dismiss and will
grant the petition for injunctive relief.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of allegations by UNITE-HERE, Local 878, AFL-CIO (the
“Union”), the collective bargaining representative of most unionized employees at the
Hotel, that Remington committed numerous unfair labor practices (“ULPs”) in violation
of the NLRA. 7
This is the second time in which the Regional Director, on behalf of the Board,
has requested injunctive relief from the District Court for the District of Alaska related to
alleged ULPs by Remington. The Court summarizes the recent history of the dispute:
•
Leading up to May 28, 2010: Remington was engaged in labor disputes with
the Union in anticipation of the expiration of their collective bargaining
agreement, which was set to expire in early 2009. 8 The Union filed multiple
charges alleging ULPs, which were consolidated on May 28, 2010 into a
complaint to initiate the administrative proceedings that the parties refer to as
4
Docket 22 (MTD Opp’n); Docket 23 (MTD Reply).
5
Docket 25 (Pet’r Supp. Br.); Docket 29 (Resp’t Supp. Br.).
6
Docket 24 (Minute Entry).
7
See Docket 1 at 2, 4 ¶¶ 4, 22(c) (Pet.).
8
See Ahearn ex rel. NLRB v. Remington Lodging & Hospitality, 842 F.Supp.2d 1186, 1192 (D.
Alaska 2012).
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Remington I. 9 The Union filed additional charges of ULPs, which were later
consolidated into amended complaints. 10
(The ULPs and complaints
underlying Remington I are not at issue in this litigation.)
•
June 18, 2010: President Obama designated Lafe Solomon as Acting
General Counsel for the NLRB, effective June 21, 2010. The President
nominated Solomon to permanently fill the position in January 2011 and May
2012, but Solomon was never confirmed. Solomon served as Acting General
Counsel until November 2013. 11
•
August 25, 2011: After an evidentiary hearing, Administrative Law Judge
(ALJ) Gregory Meyerson issued a decision in Remington I (the “ALJ
Meyerson Decision”), concluding that Remington had committed various
ULPs. 12
•
October 11, 2011: Throughout the administrative proceedings in Remington I,
the labor disputes between Remington and the Union continued, resulting in
the Union filing additional charges of ULPs. 13 On October 11, 2011, Acting
General Counsel Solomon, on behalf of the Board, by former Regional
Director Richard L. Ahearn, issued an Order Consolidating Cases and
Consolidated Complaint consolidating the ULP charges filed in September
2010 and January 2011, which constitutes the original complaint in the
administrative proceedings that the parties refer to as Remington II, the
proceedings at issue here 14 This complaint would later be revised on January
6, 2012 (the first amended complaint), 15 February 15, 2012 (the second
9
See Ahearn ex rel. NLRB v. Remington Lodging & Hospitality LLC, 3:11-cv-00240-TMB,
Docket 1 at 2 ¶¶ 4, 7 (Ahearn Pet.).
10
See id. at 2-3, 7 ¶¶ 8, 11, 15, 18.
11
Docket 22-1 (Designation Letter, dated June 18, 2010). Solomon’s tenure as Acting General
Counsel ended November 4, 2013, when the new General Counsel was sworn into office.
12
Remington Lodging & Hospitality, LLC d/b/a/ The Sheraton Anchorage & UNITED HERE!
Local 878, AFL-CIO, 359 NLRB No. 95, at *16 (2013) (the “ALJ Meyerson Decision”); also
available at Docket 3-25 at 12.
13
Docket 1 at 2 ¶ 4 (Pet.); see also Dockets 3-1 through 3-5 (Pet. Ex. 1: Charge Against
Employer Forms, dated July 2010 through Sept. 2012).
14
Docket 1 at 2-3 ¶ 7 (Pet.); see also Docket 3-6 (Pet. Ex. 2: Order Consol. Cases, Consol.
Compl., dated Oct. 11, 2011).
15
Docket 1 at 3 ¶ 10 (Pet.); see also Docket 3-8 (Pet. Ex. 4: Am. Consol. Compl., dated Jan. 6,
2012).
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amended complaint), 16 and September 17, 2012 (the third amended
complaint, which was orally amended on the record before ALJ McCarrick,
discussed infra). 17 Remington did not challenge Solomon’s designation as
Acting General Counsel nor his ability to issue complaints during the
Remington II administrative proceedings. 18
•
December 9, 2011: Former Regional Director Ahearn, on behalf of the Board,
filed a petition in the District Court for the District of Alaska seeking injunctive
relief pursuant to § 10(j) related to the ULP charges underlying Remington I,
as well as four of the ULP charges underlying Remington II. 19 The case was
assigned to Judge Timothy M. Burgess (Case No. 3:11-cv-00240-TMB). 20
•
February 2, 2012: Judge Burgess “issued a temporary injunction under Sec.
10(j) . . . ordering [Remington] to recognize and bargain with the Union;
resume contract negotiations, and honor all tentative agreements reached by
the parties; at the Union’s request, rescind unilateral changes made in its
employees’ terms and conditions of employment; and post the order and read
it aloud to employees” (the “Judge Burgess Injunction”). 21
•
April 24, 2013: The Board issued a Decision and Order adopting, with minor
modifications, ALJ Meyerson’s findings in Remington I. 22 The Board
concluded that Remington had committed numerous ULPs, including that it
violated the duty to bargain in good faith and violated NLRA sections 8(a)(1),
16
Docket 1 at 3 ¶ 13 (Pet.); see also Docket 3-11 (Pet. Ex. 7: 2d Am. Consol. Compl., dated
Feb. 15, 2012).
17
Docket 1 at 3, 4 ¶¶ 15, 19 (Pet.); see also Docket 3-15 (Pet. Ex. 9: 3d Consol. Compl., dated
Sept. 17, 2012).
18
See Docket 3-19 (Pet. Ex. 13: ALJ McCarrick Decision); Docket 3-7 at 6 (Pet. Ex. 3: Answer,
dated Oct. 28, 2011); Docket 3-9 (Pet. Ex. 5: Answer to Am. Consol. Compl., dated Jan. 6,
2012); Docket 3-12 (Pet. Ex. 8a: Answer to 2d Am. Consol. Compl., dated Feb. 29, 2012);
Docket 3-13 (Pet. Ex. 8b: Answer to 3d Am. Compl., dated Oct. 1, 2012); Docket 3-14 (Pet. Ex.
8c: Am. to Answer Adding New Affirmative Defenses, dated Nov. 2, 2012).
19
These four charges are listed in Petitioner’s Briefing at Docket 25 at 7 (Pet’r Supp. Br.).
There is otherwise no overlap between the charges of ULPs underlying Remington I and II. See
Docket 2 at 10 (Memo. in Support of Pet.).
20
See Docket 1 at 3 ¶ 9 (Pet.).
21
Remington Lodging & Hospitality, LLC, 359 NLRB No. 95, at *1 n.1 (summarizing relief
granted in Remington Lodging & Hospitality, 842 F.Supp.2d 1186).
22
Id. at *1.
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(3), (4), and (5). The Board’s decision is currently pending review by a United
States Court of Appeals. 23
•
June 6, 2013: After an evidentiary hearing conducted over nineteen days
between October 16 and December 14, 2012, ALJ John J. McCarrick issued
a decision in Remington II (the “ALJ McCarrick Decision”), describing the
proceedings as “yet a further chapter in [Remington’s] unlawful refusal to
recognize and bargain with the Union and its continuing efforts to undermine
the Union”. 24 ALJ McCarrick concluded that Remington had committed
numerous ULPs, including that it:
o Violated NLRA section 8(a)(1) by maintaining and enforcing various
rules in the employee handbook; interrogating employees about union
activities; engaging in surveillance of employees’ union activities;
creating the impression that employees’ union activities were under
surveillance; coercing employees regarding testimony at an NLRB
hearing; telling employees to remove union buttons; prohibiting off-duty
employees from distributing union literature; and threatening to call the
police on employees or have employees arrested because they were
engaged in union activity. 25
o Violated NLRA section 8(a)(3) by disciplining, changing working hours,
or discharging various employees. 26 For example, Remington violated
section 8(a)(3) by disciplining and discharging employee Dexter Wray;
by reducing the hours of and discharging employee Elda Buezo; and
by discharging employee Yanira Medrano. Remington further violated
section 8(a)(4) by discharging employees Wray and Medrano because
they gave testimony to the Board in connection with ULP
proceedings. 27
o Violated NLRA section 8(a)(5) by taking various actions unilaterally
and without bargaining with the Union. 28 For example, Remington
23
Docket 2 at 10 n.2 (Memo. in Support of Pet.). There is some dispute concerning whether
this appeal will be heard by the D.C. Circuit or Ninth Circuit Court of Appeals. Compare Docket
17 at 2 n.1 (Pet. Opp’n) (appeal pending in D.C. Circuit Court of Appeals) with Docket 21 at 7
(Pet. Reply) (cross-filed appeals to Ninth Circuit and D.C. Circuit).
24
Docket 1 at 4 ¶ 20 (Pet.); Docket 3-19 at 8-9 (Pet. Ex. 13: ALJ McCarrick Decision).
25
See Docket 3-19 at 73-74 (Pet. Ex. 13: ALJ McCarrick Decision).
26
See id. at 74-75.
27
See id. at 75.
28
See id. at 75-76.
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violated section 8(a)(5) by banning Union representatives, including
Daniel Esparza, from the Hotel; by unilaterally eliminating employee
scheduling preference sheets; by ceasing to assign work by seniority;
and by unilaterally changing policies. Remington further violated
section 8(a)(5) by refusing to provide the Union with information
necessary for and relevant to the Union’s performance of its collective
bargaining duties. 29
•
July 30, 2013: The Senate confirmed the President’s nominees to the Board,
such that the Board then had five confirmed members.
•
August 9, 2013: Remington filed exceptions to the Board concerning the ALJ
McCarrick Decision in Remington II. 30 Remington II is currently pending
before the Board.
•
September 27, 2013: The five confirmed members of the Board unanimously
authorized Acting General Counsel Solomon to institute § 10(j) injunction
proceedings in federal district court concerning Remington II. 31
•
November 13, 2013: Regional Director Hooks, for and on behalf of the Board,
filed the current § 10(j) petition for injunctive relief. 32
•
December 18, 2013: Remington filed a motion to dismiss the petition. 33 In the
motion to dismiss, Remington asserts, for the first time, that the complaints
underlying the Remington II administrative proceedings are not valid.
DISCUSSION
The Court addresses the motion to dismiss and the petition in turn.
I.
Remington’s Motion to Dismiss.
Remington moves to dismiss this action, asserting that the consolidated
complaints in Remington II were invalid because the Board lacked a statutory quorum
29
See id. at 76.
30
Docket 1 at 7 ¶ 24 (Pet.).
31
Docket 2 at 13 (Memo. in Support of Pet.); Docket 3-26 (Pet. Ex. 20: Bd. Authorization for
§ 10(j) Proceedings, dated Sept. 27, 2013). There is no dispute that the Board had a valid
quorum at this point.
32
Docket 1 (Pet.).
33
Docket 18 (MTD).
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when the complaints issued, and because Acting General Counsel Solomon was
invalidly appointed and not empowered to issue the complaints. 34 For the following
reasons, the Court finds Remington’s arguments unpersuasive.
A.
Review of a Rule 12(b)(1) Motion to Dismiss.
Under Rule 12(b)(1), a court may dismiss an action for lack of subject matter
jurisdiction. The court should construe a plaintiff’s complaint liberally, with reasonable
inferences drawn in the plaintiff’s favor. 35 A precondition for filing a § 10(j) petition for
injunctive relief is the issuance of an administrative complaint alleging one or more
ULPs. 36 If the petition for injunctive relief is not based upon a valid complaint, the Court
lacks subject matter jurisdiction. 37
B.
The General Counsel has the Authority to Issue a Complaint
Notwithstanding Lack of a Board Quorum.
The NLRA accords the General Counsel the “final authority” to issue an
administrative complaint “on behalf of the Board” alleging unfair labor practices. Section
3(d) of the NLRA provides this authorization:
The General Counsel of the Board . . . shall have final authority, on behalf
of the Board, in respect of the investigation of charges and issuance of
complaints under section 160 of this title, and in respect of the prosecution
of such complaints before the Board, and shall have such other duties as
the Board may prescribe or as may be provided by law. 38
34
Docket 18 at 11-21 (MTD).
35
See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).
36
See 29 U.S.C. § 160(j) (“upon issuance of a complaint,” Board may file for injunctive relief).
37
See id.; see also Hooks v. Kitsap Tenant Support Servs., Inc., No. C13-5470-BHS, 2013 WL
4094344, at *1 (W.D. Wash. Aug. 13, 2013).
38
29 U.S.C. § 153(d).
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In this case, “the former Acting General Counsel of the Board, on behalf of the Board,
by [the] former Regional Director” issued the complaints. 39
Remington maintains that because the General Counsel only has the statutory
authority to issue complaints “on behalf of the Board,” any complaint issued on behalf of
the Board during a time when the Board lacked a quorum was invalid. 40 Remington
directs the Court to several decisions from outside of this Circuit—NLRB v. Enterprise
Leasing Co. Southeast, LLC (Fourth Circuit), NLRB v. New Vista Nursing and
Rehabilitation (Third Circuit), and Noel Canning v. NLRB (District of Columbia)
(together, the “Quorum Cases”)—each of which concluded that the Board lacked a valid
quorum during the relevant time and thus invalidated Board orders that were issued at
that time. 41 But each of those cases held that orders issued by the Board without a
quorum were invalid. 42 In contrast, this case concerns the validity of complaints issued
by the Acting General Counsel, who has the independent statutory authority to issue
complaints pursuant to the plain language of section 153(d). 43 Whether the Board had
39
See, e.g., Docket 1 at 2-3 ¶ 7 (Pet.).
40
Docket 18 at 10 (Mot).
41
See NLRB v. Enter. Leasing Co. SE, LLC, 722 F.3d 609 (4th Cir. 2013); NLRB v. New Vista
Nursing & Rehab., 719 F.3d 203 (3d Cir. 2013); Noel Canning v. NLRB, 705 F.3d 490 (D.D.C.
2013).
42
See Enter. Leasing, 722 F.3d 609 (seeking review of NLRB decision and finding that
Enterprise violated NLRA); New Vista Nursing & Rehabilitation, 719 F.3d 203 (challenging
NLRB decision granting summary judgment); Noel Canning, 705 F.3d 490 (challenging NLRB
order). But see Kitsap Tenant, 2013 WL 4094344, at *1.
43
Compare 29 U.S.C. § 160(b) (the Board may “designate[]” its agents to issue complaints)
and 29 U.S.C. § 153(b) (the “Board is authorized to delegate to its regional directors” certain
powers) with 29 U.S.C. § 153(d) (the General Counsel “shall have final authority” concerning
“investigation of charges and issuance of complaints” but “shall have such other duties as the
Board may prescribe or as may be provided by law”). Respondent does not reach this issue.
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a quorum is not determinative of the validity of the administrative complaints issued by
the Acting General Counsel pursuant to section 3(d) in this case.
C.
The Complaints Issued by Acting General Counsel Solomon are
Enforceable.
In June 2010, President Obama designated Lafe Solomon as the Board’s Acting
General Counsel. 44 In both January 2011 and May 2012, the President nominated
Solomon to permanently fill the General Counsel position, but Solomon was not
confirmed on either occasion.
Remington asserts that even if section 3(d) confers the authority on the General
Counsel to issue complaints without a Board quorum, Solomon could not act as General
Counsel after his nomination and therefore he was not empowered to issue the
complaints underlying Remington II. As noted by Remington, there are two methods
available to appoint a person to hold the General Counsel position in a temporary acting
capacity: (1) pursuant to section 3(d) of the NLRA; or (2) pursuant to section 3345 of the
Federal Vacancies Reform Act of 1998 (“FVRA”). 45 Petitioner asserts that Solomon
was validly designated under section 3345(a)(3) of the FVRA, and does not argue that
section 3(d) of the NLRA is applicable in this regard. 46 The Court thus turns to the
FVRA.
See Docket 18 at 11 (MTD) (“The question as to whether Acting General Counsel Solomon had
such power cannot be reached because . . . Solomon was never validly appointed to the
position of Acting General Counsel.”).
44
Docket 22 at 9 (MTD Opp’n).
45
Docket 18 at 11 (MTD).
46
Section 3(d) of the NLRA provides that the President may designate a person to act as
General Counsel, but “for no more than forty days when the Congress is in session unless a
nomination to fill such vacancy shall have been submitted to the Senate.” 29 U.S.C. § 153(d).
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1. Federal Vacancies Reform Act (5 U.S.C. § 3345).
Section 3345 is a statute that is applicable to virtually all federal government
agencies, including the NLRB. It provides for three ways to temporarily fill the position
of an executive officer whose appointment is required to be made by the President with
consent of the Senate when the person who held that office dies, resigns, or is
otherwise unable to perform his duties. First, section 3345(a)(1) provides that the first
assistant “shall” temporarily perform the duties (i.e., automatic temporary succession).
Second, section 3345(a)(2) provides that “notwithstanding” subsection 3345(a)(1), the
President “may” temporarily designate a person to fill the vacant office who otherwise
held an office to which he was appointed with consent of the Senate. Or third, section
3345(a)(3) provides that “notwithstanding” subsection 3345(a)(1), the President “may”
temporarily designate a person to fill the vacant office if during the 365 days preceding
the vacancy, that person served in a position in the agency for not less than 90 days
and at a pay grade of at least a GS-15 or its equivalent. 47 The Board asserts that
Solomon was named Acting General Counsel pursuant to section 3345(a)(3), and
Remington does not dispute that Solomon satisfied the requirements of that
subsection. 48
However, Remington asserts that when Solomon was nominated to the General
Counsel position, his temporary appointment became invalid pursuant to section
3345(b)(1), which provides:
47
5 U.S.C. § 3345(a)(3).
48
Docket 22 at 7, 9-10 (MTD Opp’n); Docket 18 at 14 (MTD).
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(b)(1) Notwithstanding subsection (a)(1), a person may not serve as an
acting officer for an office under this section, if—
(A) during the 365-day period preceding the date of the death,
resignation, or beginning of inability to serve, such person—
(i) did not serve in the position of first assistant to the office of such
officer; or
(ii) served in the position of first assistant to the office of such
officer for less than 90 days; and
(B) the President submits a nomination of such person to the Senate
for appointment to such office.
There is no dispute that Solomon never served as first assistant to the General
Counsel ((b)(1)(A)).
And the parties agree that the President submitted Solomon’s
name to the Senate for appointment to the General Counsel position in January 2011
and May 2012 ((b)(1)(B)). The complaints here were all issued after Solomon’s first
nomination. Nevertheless, Petitioner asserts that subsection (b)(1)’s service limitations
do not apply to Solomon’s appointment because the “notwithstanding subsection (a)(1)”
language at the beginning of subsection (b)(1) means that the (b)(1) service limitations
apply only to acting officers designated pursuant to subsection (a)(1), and not to acting
officers serving under subsections (a)(2) or (3). 49 Petitioner makes several arguments.
First, Petitioner asserts that the purpose of subsection (a)(3) was to “enlarge the
pool of potential acting officers,” and that it would “undermine Congress’s stated goal of
expanding the pool of potential acting officials beyond first assistants if subsection (b)(1)
were construed, as Respondent construes it, to disqualify Senate-confirmed officials
and other senior agency officials who have been nominated to fill the vacancy unless
49
Docket 22 at 11-12 (MTD Opp’n).
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those officials had also served as first assistants.”50 But subsection (b)(1) does not
require that all acting officers served as first assistants.
In fact, at oral argument,
Remington conceded that Solomon was initially eligible to serve as Acting General
Counsel. It was only when he was nominated for the office that he lost that eligibility.
Thus, the statute’s goal of expanding the pool of acting officers is met regardless of the
scope of subsection (b)(1)’s restrictions.
Petitioner also asserts that (b)(1)’s service limitations were intended to apply only
to subsection (a)(1) because “[i]f Congress had meant for the service limitation in
subsection (b)(1) to apply to all three categories of officials identified in subsection (a),
rather than just to first assistants, it would have said ‘notwithstanding subsection (a)’
rather than referring more specifically and exclusively to subsection (a)(1).” 51 The Court
disagrees. The “notwithstanding” language of subsection (b)(1) references subsection
(a)(1) because that subsection provides for automatic succession of first assistants,
while subsections (a)(2) and (3) permit the President to make a discretionary
appointment “notwithstanding” subsection (a)(1). In addition, Petitioner’s argument that
subsection (b)(1) applies only to (a)(1) must fail because, as Remington indicates, 52
section 3345(b)(1)(A)(i) would have no meaning if it only applied to subsection (a)(1). 53
50
Id. at 8-9, 11-12.
51
Id. at 11.
52
Docket 18 at 19 (MTD).
53
Cf. United States v. Kuok, 671 F.3d 931, 943 (9th Cir. 2012) (“To avoid interpreting one
phrase so as to render another superfluous, we accept the government’s interpretation of the
statute.”).
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Furthermore, the Court finds persuasive Remington’s observation that subsection
(b)(1) states that “[n]otwithstanding subsection (a)(1), a person may not serve as an
acting officer for an office under this section if” he also satisfies subsections (b)(1)(A)
and (B). Thus, the statute clearly distinguishes between when it intends to reference a
particular subsection (e.g., the reference to “subsection (a)(1)”) versus the entire section
(e.g., the reference to “this section,” referring to the totality of section 3345). 54
Accordingly, this Court concludes that the statute, by its terms, requires that the
limitations of subsection (b)(1) apply to all of section 3345(a).
Petitioner’s reference to legislative history does not require a contrary conclusion.
Petitioner directs the Court to a statement by Senator Fred Thompson, which supports
Petitioner’s analysis of section 3345: At a hearing on the FVRA, Senator Thompson
asserted that “under § 3345(b)(1), the revised reference to § 3345(a)(1) means that this
subsection applies only when the acting officer is the first assistant, and not when the
acting officer is designated by the President pursuant to §§ 3345(a)(2) or 3345(a)(3).”55
But the Court will not rely upon this legislative history because the language of the
statute is clear. 56
In addition, shortly after Senator Thompson’s comment, Senator
Robert Byrd clarified that subsection (b)(1)’s limitations would apply to all of subsection
54
5 U.S.C. § 3345(b)(1) (emphasis added).
55
Docket 22 at 11-12 (MTD Opp’n) (quoting Cong. Rec., 105th Cong., 2d Sess. (Oct. 21, 1998)
at 27496).
56
See Church of Scientology of Cal. v. U.S. Dep’t of Justice, 612 F.2d 417, 421 (9th Cir. 1979)
(“[I]f the language of a statute is clear and there is no ambiguity, then there is no need to
‘interpret’ the language by resorting to the legislative history or other extrinsic aids.”).
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(a). 57
But the Supreme Court has cautioned courts against “allowing ambiguous
legislative history to muddy clear statutory language.” 58 The Court relies instead on
clear statutory language.
Because Solomon meets the criteria of both subsections (b)(1)(A) and (B) in that
he did not serve as first assistant and was nominated by the President, he was not
eligible under section 3345 to serve as Acting General Counsel after he was nominated
for the position.
2. Federal Vacancies Reform Act (5 U.S.C. § 3348) and the De Facto Officer
Doctrine.
Section 3348(d) provides that actions taken by a person not validly acting under
section 3345 (or other sections not relevant to this discussion) “shall have no force or
effect” and “may not be ratified.”59
However, critical to this case, section 3348(e)
specifically exempts the Board’s General Counsel from this penalty provision. 60
Petitioner asserts that while section 3348(d) generally eliminates a defense like the de
facto officer doctrine, section 3348(e) allows the NLRB to raise that defense to defend
the validity of acts taken by an invalidly serving Acting General Counsel. 61
57
See Cong. Rec., 105th Cong., 2d Sess. (Oct. 21, 1998), at 27496.
58
Milner v. Dep’t of the Navy, 131 S. Ct. 1259, 1266 (2011); Church of Scientology of California
v. U.S. Dep’t. of Justice, 612 F.2d 417, 422 (9th Cir. 1979) (“The proper function of legislative
history is to solve, not create, an ambiguity.” (internal citations and quotations omitted)).
59
5 U.S.C. § 3348(d).
60
Id. § 3348(e) (“This section shall not apply to . . . the General Counsel of the National Labor
Relations Board.”).
61
Docket 18 at 20-21 (MTD) (“Congress, by exempting the General Counsel’s office from the
penalty provisions of §3348(d), has simply permitted the NLRB to raise the defense of the de
facto officer doctrine, while stripping that defense from other offices not so exempted.”); Docket
25 at 3 (Pet’r Supp. Br.) (“Because the General Counsel of the NLRB is expressly exempted
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The Ninth Circuit has questioned the “continued vitality of the de facto officer
doctrine” to ratify actions taken by invalidly serving officers. 62 But the Supreme Court
recognized the doctrine as recently as 2003 in Nguyen v. United States. 63 “The de facto
officer doctrine confers validity upon acts performed by a person acting under the color
of official title even though it is later discovered that the legality of that person’s
appointment or election to office is deficient.” 64 The doctrine “prevents litigants from
abiding the outcome of a lawsuit and then overturning it if adverse upon a technicality of
which they were previously aware.” 65 Courts have explained:
Th[e de facto officer] doctrine distinguishes between collateral attacks
wherein a plaintiff challenges government action on the ground that the
official who took the action was improperly in office, . . . and direct attacks
wherein the plaintiff challenges the qualifications of the officer, rather than
the actions taken. The doctrine holds that collateral attacks pose too great
from § 3348 by § 3348(e)(1), the traditional de facto officer . . . defense[] remain[s] available to
defend Mr. Solomon’s action in issuing the complaint at issue here.”). Remington seems to alter
course in its Supplemental Brief, asserting that it disagrees with this reading of the FVRA. See
Docket 29 at 2 (Resp’t Supp. Br.) (“Remington disagrees with this reading FVRA” to mean that
“section 3348(e)(1) exempted NLRB General Counsel [from section 3348(d)], thus retaining the
de facto officer defense,” but agrees that “generally speaking” the de facto officer doctrine is an
available defense).
62
Silver v. U.S. Postal Service, 951 F.2d 1033, 1036 n.1 (9th Cir. 1991); see also United States
v. Gantt, 194 F.3d 987 (9th Cir. 1999), overruled on other grounds U.S. v. W.R. Grace, 526 F.3d
499 (9th Cir. 2008) (declining to apply the “ancient” doctrine).
63
539 U.S. 69, 72 (2003). However, the Supreme Court declined to apply the doctrine in that
case.
64
Ryder v. United States, 515 U.S. 177, 180 (1995).
65
Roell v. Withrow, 538 U.S. 580, 598 (2003) (quoting Glidden Co. v. Zdanok, 370 U.S. 530,
535 (1962)); see also EEOC v. Sears, Roebuck & Co., 650 F.2d 14, 17 (2d Cir. 1981) (“The de
facto officer doctrine was developed to protect the public from the chaos and uncertainty that
would ensue if actions taken by individuals apparently occupying government offices could later
be invalidated by exposing defects in the officials’ titles.”).
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a threat that past actions of the challenged official would be subjected to
wholesale invalidation and thus interfere with orderly government. 66
Remington seems to agree with this legal framework, 67 and asserts that it is bringing a
“‘direct’ attack on [Solomon’s] qualifications to take action in a present pending case.” 68
That is, Remington asserts that its “motion to dismiss constitutes a direct attack on Mr.
Solomon’s authority to initiate the underlying administrative-agency complaint, which in
turn is the condition precedent to the filing of the [§] 10(j) action in this Court. This
present motion is not collateral in nature.” 69
The Court disagrees that Remington’s attack is a purely direct attack. Although
Remington asserts that it challenges only Solomon’s “qualifications” to hold the position
of Acting General Counsel, 70 at its core, Remington’s challenge is to the validity of the
administrative complaints that Solomon issued. The allegations of those complaints
were evaluated by ALJ McCarrick during hearings in late 2012 occurring over nineteen
days and involving substantial witness testimony. The ALJ McCarrick Decision is now
66
Horwitz v. State Bd. of Med. Exam’rs, 822 F.2d 1508, 1516 (10th Cir. 1987) (citing Andrade
v. Lauer, 729 F.2d 1475, 1496-1497 (D.C. Cir. 1984)).
67
Docket 18 at 21 (Mot.); see also Docket 29 at 3 (Resp’t Supp. Br.) (“Remington . . .
acknowledges that a ‘collateral’ attack on a past action by an invalidly appointed General
Counsel is protected by the doctrine.” (emphasis in original)).
68
Docket 29 at 3 (Resp’t Supp. Br.) (emphasis in original).
69
Id. at 5. Petitioner asserts “[t]here is no merit to Respondent’s contention . . . that the de
facto officer doctrine is unavailable as a defense because that doctrine insulates officers only
from collateral attack, not from direct challenge,” but provides no authority that supports that
argument. Docket 25 at 4 (Pet’r Supp. Br.).
70
Solomon’s tenure as Acting General Counsel ended November 4, 2013. The Petition was
filed November 13, 2013, and Remington filed its answer and the motion to dismiss on
December 4 and 18, respectively. Although Remington filed its motion to dismiss within a few
weeks of the end of Solomon’s tenure, this was nevertheless over two years after Solomon
consolidated and issued the underlying administrative complaints.
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pending appeal to the Board, after which it might be further appealed to a Court of
Appeals. The ALJ McCarrick Decision is not on appeal to this Court. Remington’s
challenge before this Court to the validity of the administrative complaints is collateral
because the proceeding before this Court is not a direct appeal of the ALJ’s decision.
Remington concedes that it did not challenge Solomon’s designation during the
administrative proceedings, but asserts that the present motion and “challenge to
Solomon’s qualification is being raised at the first possible opportunity.” 71 However,
similarly situated parties have raised similar challenges before the administrative
tribunal. 72 The Court does not agree that this § 10(j) proceeding was Remington’s “first
possible opportunity” to raise this concern. Remington’s failure to promptly object to the
Acting General Counsel’s authority to issue the complaints, while not dispositive, weighs
in favor of applying the de facto officer doctrine. This is particularly so where this § 10(j)
proceeding is not a direct appeal of the ALJ’s determination. Rather, it is for the limited
purposes of determining whether preliminary injunctive relief is warranted while the
ALJ’s decision is before the Board for review. As such, it is collateral.
Even if this Court were to consider Remington as making a direct attack, it would
fail. Nguyen v. United States 73 is instructive. In that case, the three-judge panel for the
Ninth Circuit Court of Appeals that affirmed a criminal conviction included two Article III
71
Docket 29 at 5 (Resp’t Supp. Br.).
72
See Newark Elec. Corp., No. 03-CA-088127, 2014 NLRB LEXIS 9, at *2 n.3 (NLRB Jan. 6,
2014) (ALJ decision declines to dismiss complaint based on allegation that Acting General
Counsel Solomon lacked authority); C&G Distrib. Co., 359 NLRB No. 53, at *1 n.2 (2013)
(“Company challenge[d] the authority of the Acting General Counsel . . . to prosecute . . . the
complaint, . . . [but] similar challenges have been rejected in other cases.”).
73
539 U.S. 69, 72 (2003).
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judges and one Article IV territorial-court judge. 74 The defendant did not challenge the
composition of the circuit panel until he filed for certiorari review with the United States
Supreme Court. 75 Before the Supreme Court, the parties agreed that the circuit panel
was not constituted in accordance with the applicable federal statute. 76
The
government asserted that the panel’s judgment should nevertheless be left undisturbed
under the de facto officer doctrine. 77 But the Supreme Court declined to apply the de
facto officer doctrine, despite the delayed challenge to the panel’s composition. The
Supreme Court explained that, in cases involving judges, it has applied the doctrine
where “there is a ‘merely technical’ defect of statutory authority.” 78 The Nguyen Court
went on to explain that it has declined to apply the doctrine where there was a
“violation[] of a statutory provision that ‘embodies a strong policy concerning the proper
administration of judicial business’ even though the defect was not raised in a timely
manner.”79 The Nguyen Court concluded that the doctrine would not apply because the
circuit panel designation was not just “irregular” but “impermissible”—that is, it was “the
74
Id. at 73-74.
75
Id. at 73.
76
Id. at 77.
77
Id.
78
Id. (discussing Ball v. United States, 140 U.S. 118 (1891) (applying de facto officer doctrine
where criminal defendant failed to object to sentence imposed upon him by a district court judge
from a different district temporarily assigned to sit in district where defendant was prosecuted);
McDowell v. United States, 159 U.S. 596 (1895) (similar)); but see Ryder, 515 U.S. at 183
(Supreme Court declined to apply de facto officer doctrine, noting “[w]e think that one who
makes a timely challenge to the constitutional validity of the appointment of an officer who
adjudicates his case is entitled to a decision on the merits of the question and whatever relief
may be appropriate if a violation indeed occurred.”).
79
Nguyen, 539 U.S. at 77-78 (discussing Glidden, 370 U.S. at 535).
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difference between an action which could have been taken, if properly pursued, and one
which could never have been taken at all.” 80
Here, unlike the Article IV judge in Nguyen, Acting General Counsel Solomon
was initially eligible to serve in the role of Acting General Counsel and would have
remained eligible had he not been presidentially nominated. 81 One might argue that
once Solomon was nominated, his continued performance as Acting General Counsel
was impermissible, rather than irregular, but refusing to apply the de facto officer
doctrine in this circumstance would ignore the other policy implications of the FVRA,
specifically the exclusion of the NLRB General Counsel position from section 3345
through section 3348(e). 82
In addition, applying the de facto officer doctrine here
supports the public policy underlying the NLRA, which is to encourage collective
bargaining. 83 For there is no doubt that nullifying the complaints issued during Acting
General Counsel Solomon’s time in office many months after the ALJ has issued his
decision on the ULP charges raised in those complaints would hinder the policy
objectives of the NLRA. 84
80
Id. at 79.
81
Remington makes several additional arguments as to why the de facto officer doctrine ought
not to apply, but they are not compelling. For instance, it argues “the doctrine is generally
limited to attacks raising constitutional considerations.” See Docket 29 at 4 (Resp’t Supp. Br.).
But as Remington acknowledges, in Nguyen, the Supreme Court considered the doctrine with
respect to a statutory challenge, and although the Court rejected the doctrine, it was because
the Article IV judge’s appointment was “impermissible,” not because the case presented a
statutory instead of a constitutional question.
82
But see S. Rep. No. 105-250, 105th Cong., 2d Sess., at 17-20.
83
Cf. Nguyen, 539 U.S. at 78.
84
The NLRB has repeatedly expressed its view that the complaints issued by Acting General
Counsel Solomon are valid. See, e.g., Belgrove Post Acute Care Ctr., 359 NLRB No. 77, at *1
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Because Remington brings either an impermissible collateral attack or a direct
attack that fails pursuant to the de facto officer doctrine, the Court will deny the motion
to dismiss.
II.
The Petition for Injunctive Relief.
Petitioner seeks an injunction pursuant to § 10(j) of the NLRA.
A. Review of a § 10(j) Petition for Injunction.
Section 10(j) of the NLRA provides that, “[t]he Board shall have power, upon
issuance of a complaint” charging ULPs “to petition any United States district court”
within a proper district “for appropriate temporary relief or restraining order. 85 “The
purpose of a § 10(j) injunction is ‘to protect the integrity of the collective bargaining
process and to preserve the Board’s remedial power while it processes’ an unfair labor
practice complaint.” 86 The standard for a § 10(j) preliminary injunction is the same as
for any other preliminary injunction. A party must establish:
[1] that he is likely to succeed on the merits, [2] that he is likely to suffer
irreparable harm in the absence of preliminary relief, [3] that the balance
of equities tips in his favor, and [4] that an injunction is in the public
interest. 87
n.1 (2013) (“[E]ven if the appointment [of Acting General Counsel Solomon] had not been
proper under the Vacancies Act, that defect would not constitute grounds for attacking the
complaint. . . . [Section 3348] by its terms, is expressly and specifically inapplicable to the office
of the Board’s General Counsel. 5 U.S.C. § 3348(e)(1).”).
85
29 U.S.C. § 160(j).
86
Frankl v. HTH Corp., 650 F.3d 1334, 1341 (9th Cir. 2011) (quoting Miller v. Cal. Pac. Med.
Ctr., 19 F.3d 449, 459-60 (9th Cir. 1994)).
87
McDermott v. Ampersand Publ’g, LLC, 593 F.3d 950, 957 (9th Cir. 2010) (quoting Winter v.
Natural Res. Def. Council, 129 S.Ct. 365, 374-76 (2008)).
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“Under the ‘sliding scale’ approach to preliminary injunctions observed in [the Ninth
Circuit], ‘the elements of the preliminary injunction test are balanced, so that a stronger
showing of one element may offset a weaker showing of another.’” 88 “Serious questions
going to the merits and a balance of hardships that tips sharply towards the Regional
Director can support issuance of a preliminary injunction, so long as the Regional
Director also shows that there is a likelihood of irreparable harm and that the injunction
is in the public interest.” 89 Below, the Court considers the four preliminary injunction
factors and concludes that each is satisfied.
B. Likelihood of Success on the Merits.
“On a § 10(j) petition, likelihood of success is a function of the probability that the
Board will issue an order determining that the unfair labor practices alleged by the
Regional Director occurred and that this Court would grant a petition enforcing that
order, if such enforcement were sought.” 90
The Regional Director “can make a
threshold showing of likelihood of success by producing some evidence to support the
unfair labor practice charge, together with an arguable legal theory.” 91 As this Court
previously stated, “[t]he Ninth Circuit has not formally decided how much weight to give
to an ALJ decision in § 10(j) proceedings.” 92
But the Ninth Circuit has found
88
Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (per curiam) (quoting Alliance for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)).
89
Frankl, 650 F.3d at 1355 (quoting Alliance for the Wild Rockies, 632 F.3d at 1135 (internal
quotations and alterations omitted)).
90
Frankl, 650 F.3d at 1355.
91
Id. at 1356 (quoting Miller, 19 F.3d at 460).
92
Remington Lodging & Hospitality, 842 F.Supp.2d at1196 (discussing Small v. Avanti Health
Sys., LLC, 661 F.3d 1180, 1186 (9th Cir. 2011)).
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“compelling” a Seventh Circuit decision concerning the degree to which a court may rely
on an ALJ decision:
The ALJ is the Board’s first level decisionmaker. Having presided over the
merits hearing, the ALJ’s factual and legal determinations may supply a
useful benchmark against which the Director’s prospects of success may
be weighed. 93
At the same time, the ALJ’s decision is not dispositive. 94 But where, as here, the
Regional Director sought and received unanimous Board approval prior to filing the
§ 10(j) petition, he is owed special deference because the Board’s decision to seek a
preliminary injunction “might signal its future decision on the merits, assuming the facts
alleged in the petition withstand examination at trial.” 95
In this case, the 80-page Decision and Order issued by ALJ McCarrick in
Remington II details why he concluded that Remington had committed multiple ULPs in
violation of the NLRA. 96
ALJ McCarrick concluded that Remington violated NLRA
section 8(a)(1) by:
•
Maintaining and enforcing various rules in the employee handbook;
•
Interrogating employees about union activities;
•
Engaging in surveillance of employees’ union activities;
•
Creating the impression that employees’ union activities were under
surveillance;
•
Coercing employees regarding testimony at an NLRB hearing;
93
Id.
94
Id. at 1196 (citing McDermott, 593 F.3d at 964).
95
Small, 661 F.3d at 1187.
96
See Docket 3-19 (Pet. Ex. 13: ALJ McCarrick Decision).
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•
Telling employees to remove union buttons;
•
Prohibiting off-duty employees from disturbing union literature on hotel
property; and
•
Threatening to call the police on employees or have employees arrested
because they were engaged in union activity. 97
ALJ McCarrick concluded that Remington violated NLRA section 8(a)(3) by:
•
Disciplining, discharging, and changing the schedules of various
employees. 98
ALJ McCarrick concluded that Remington violated NLRA section 8(a)(4) by:
•
Discharging employees Dexter Wray and Yanira Escalante Medrano because
they gave testimony to the Board in connection with ULP proceedings. 99
ALJ McCarrick concluded that Remington violated NLRA section 8(a)(5) by:
•
Taking various actions unilaterally and without bargaining with the union, and
by refusing to provide the Union with information necessary for and relevant
to the Union’s performance of its collective bargaining duties. 100
The petition for injunctive relief asserts that Remington committed approximately
forty ULPs. 101
Remington did not independently respond to the majority of the
allegations in its briefing to this Court, but focuses its argument on its assertion that the
Court should deny injunctive relief with respect to employees Dexter Wray, Elda Buezo,
and Yanira Medrano. 102
97
Id. at 73-74.
98
Id. at 74-75.
99
Id. at 75.
100
Id. at 75-76.
101
Docket 1 at 6-7 (Pet.).
102
Docket 17 at 10-13 (Pet. Opp’n).
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As the Court expressed at oral argument, for purposes of preliminary injunctive
relief, the Court will not reweigh the evidence before the ALJ or revisit the extensive
factual findings he reached based on nineteen days of hearings and the testimony of
numerous witnesses. The Court does not find compelling Remington’s generalized
assertion that Petitioner is unlikely to succeed on the merits, nor its specific arguments
concerning employees Wray, Buezo, and Medrano. The Court has thoroughly reviewed
the ALJ McCarrick Decision and finds that it demonstrates that Petitioner has
“produc[ed] some evidence to support the unfair labor practice charge[s], together with .
. . arguable legal theor[ies].”103
In addition, the September 27, 2013 unanimous
authorization from a fully confirmed Board to institute § 10(j) proceedings concerning
Remington II further supports a finding that Petitioner will likely succeed on the merits
before that Board. 104
C. Irreparable Harm.
To obtain a preliminary injunction, a petitioner “must establish that irreparable
harm is likely, not just possible.”105 In the context of the NLRA, “irreparable injury is
established if a likely unfair labor practice is shown along with a present or impending
deleterious effect of the likely unfair labor practice that would likely not be cured by later
103
Frankl, 650 F.3d at 1356 (quoting Miller, 19 F.3d at 460).
104
Small, 661 F.3d at 1187; see also Docket 3-26 (Pet. Ex. 20: Bd. Authorization for § 10(j)
Proceedings, dated Sept. 27, 2013).
105
Frankl, 650 F.3d at 1355 (quoting Alliance for the Wild Rockies, 632 F.3d at 1131).
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relief.”106 That is, “permitting an alleged unfair labor practice to reach fruition and
thereby render meaningless the Board’s remedial authority is irreparable harm.” 107
1. Violations of Section 8(a)(5) are likely to cause irreparable harm.
The Ninth Circuit has explained that with respect to “violations of § 8(a)(5),
continuation of that unfair labor practice, failure to bargain in good faith, has long been
understood as likely causing an irreparable injury to union representation.”108 This is
because, “[a]s time passes, the benefits of unionization are lost and the spark to
organize is extinguished. The deprivation to employees from the delay in bargaining
and the diminution of union support is immeasurable.” 109 In addition, the Ninth Circuit
has concluded that the “discharge of active and open union supporters risks a serious
adverse impact on employee interest in unionization and can create irreparable harm to
the collective bargaining process.” 110
Here, Petitioner alleges and ALJ McCarrick has found multiple violations of
Section 8(a)(5). For example, ALJ McCarrick concluded that the Union representatives
106
Id. at 1362.
107
Id.
108
Id.; see also Small, 661 F.3d at 1191.
109
Frankl, 650 F.3d at 1362-63 (quoting NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1573 (7th
Cir. 1996)); see also Small, 661 F.3d at 1191-92 (Refusal to bargain in good faith results in
irreparable harm because it reduces the possibility that the union and employer will effectively
negotiate a collective bargaining agreement; because unions provide non-economic benefits,
such as greater job security, and employees cannot be fully compensated for the loss of those
benefits through a forward-looking NLRB order; because “a failure to bargain in good faith
threatens industrial peace”; and because “a delay in bargaining weakens support for the
union.”).
110
Frankl, 650 F.3d at 1363 (quoting Pye v. Excel Case Ready, 238 F.3d 69, 74 (1st Cir.
2001)).
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were denied access to Union employees at the Hotel. 111 This type of violation deprives
employees of the benefits of the Union and supports a finding of a likelihood of
irreparable harm. Petitioner has also established a likelihood of irreparable harm by
demonstrating that certain employees who were disciplined, discharged, or otherwise
negatively affected by changed Hotel policies played active roles in the Union. For
instance, Wray, Buezo, and Medrano all publicly supported the Union and testified in
Remington I, and ALJ McCarrick found that all three were terminated as a result of
ULPs. 112 Remington’s disciplining of active Union supporters in this manner is likely to
damage the ability of the Union to represent its members and engage in collective
bargaining on their behalf, and thus demonstrates a likelihood of irreparable harm.
2. Delay is not determinative as to whether the Court finds irreparable
harm.
In evaluating irreparable harm, a court may consider the delay between the
commission of ULPs and the filing of a complaint or an injunction.
On this point,
Remington cites the Ninth Circuit’s 2010 decision in McDermott v. Ampersand
Publishing, LLC. 113 In McDermott, the Regional Director sought preliminary injunctive
relief, requiring a newspaper publisher to reinstate employees it allegedly had
discharged for union activity. The district court denied injunctive relief, in part because
111
See, e.g., Docket 3-19 at 24 (Pet. Ex. 13: ALJ McCarrick Decision) (“unilateral
discontinuance of the use of preference sheets in scheduling bargaining unit employees violated
Section 8(a)(5)”); Docket 3-19 at 57, 58 (Respondent violated Section 8(a)(1) and (5) when it
unilaterally barred Union representatives from Hotel on April 21, 2010 and July 2, 2010); Docket
3-19 at 61 (Respondent violated Section 8(a)(1) and (5) by abandoning use of seniority in
assigning work at hotel).
112
Docket 3-19 at 33-39 (Pet. Ex. 13: ALJ McCarrick Decision) (Wray); Docket 3-19 at 41-44
(Buezo); Docket 3-19 at 39-41 (Medrano).
113
Docket 17 at 5-6 (Pet. Opp’n) (discussing McDermott, 593 F.3d 950).
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the case involved a newspaper and First Amendment rights, which subjected the
request for injunctive relief to a heightened standard, but also because the Regional
Director could not demonstrate irreparable harm due to substantial delay. In that case,
the employees had been terminated in October 2006 and early 2007, and the Regional
Director sought § 10(j) injunctive relief in March 2008. 114 The Ninth Circuit affirmed,
explaining that although “delay by itself is not a determinative factor in whether the grant
of interim relief is just and proper,” delay is significant “if the harm has occurred and the
parties cannot be returned to the status quo or if the Board’s final order is likely to be as
effective as an order for interim relief.”115 The Ninth Circuit found that the final Board
order would likely be as effective as interim relief in that case in part because the
primary injunctive relief requested was reinstatement of the employees who had been
terminated some thirteen to seventeen months prior to the request for injunctive
relief. 116
In contrast, in Frankl v. HTH Corporation, which involved a similarly lengthy delay
between the filing of the first ULP charges and the filing of the § 10(j) petition, the Ninth
Circuit affirmed the district court’s grant of injunctive relief. 117
The Ninth Circuit
reiterated McDermott’s holding that delay is not determinative, explaining that delay is
114
McDermott, 593 F.3d at 965 (district court found “little basis to believe, given the long delay,
that an interim [injunctive] order at this point will provide any genuine reassurance to employees
beyond that provided by a final Board order that unfair labor practices committed by
[Respondent] will be timely remedied”).
115
Id. at 964, 965.
116
Id. at 965; see also id. at 966 (Clifton, J. dissenting) (“The injunction here only seeks
reinstatement for terminated employees. Period.”).
117
Frankl, 650 F.3d 1334.
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often the result of the postponement in filing § 10(j) proceedings until after an ALJ
decision because the issuance of the ALJ decision assists district court judges. 118
Frankl distinguished McDermott, both because McDermott involved special First
Amendment interests, and also because “the record [in Frankl] provided specific support
for the conclusions that there would likely be irreparable harm beyond that which could
be remedied once the Board had ruled, and that interim relief was more likely to curb
the ongoing unfair labor practices than subsequent relief.”119
The current petition bears more similarity to Frankl than McDermott. First, unlike
McDermott, there are no special First Amendment interests at issue in these
proceedings. Second, in contrast to the McDermott injunction request, which primarily
sought reinstatement of terminated employees, and more like Frankl, in this case, the
Regional Director seeks varied and extensive forms of injunctive relief. 120 For instance,
Petitioner requests that Remington be required to, at the request of the Union, rescind
unilateral changes made to employees’ terms and conditions of employment,
concerning sick leave, staffing, and scheduling policies. Injunctive relief at this time
would be more likely to curb any currently ongoing ULPs than Board action at some
point in the future, particularly as both the Ninth Circuit and Congress have recognized
that the Board process is often lengthy and to the disadvantage of those involved in
118
Id. at 1363 (This “ma[kes] the District Court’s task in evaluating the propriety of interim relief
much easier, and much more likely to be carried out accurately.”).
119
Id. at 1364.
120
Docket 1 at 10-11 (Pet.). Petitioner notes that where “certain unfair labor practices are no
longer ongoing, whether due to the Initial Injunction or otherwise, Petitioner only seeks that
Respondent be enjoined and restrained from further action.” See Docket 21 at 8 n.2 (Pet.
Reply).
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collective bargaining. 121
And a determination by the Board in this case might be
particularly delayed given the recent disputes over the validity of actions taken by the
Board due to the quorum issue. 122 Thus, despite the delay between the alleged ULPs
and the Regional Director’s petition for § 10(j) injunctive relief in this case, this Court
finds that Petitioner has demonstrated a likelihood of irreparable harm if preliminary
relief is not granted at this time.
D. Balance of the Equities.
In balancing the equities, “the district court must take into account the probability
that declining to issue the injunction will permit the alleged unfair labor practice to reach
fruition and thereby render meaningless the Board’s remedial authority.” 123
Remington had initially asserted that an injunction is unnecessary here because
the Judge Burgess Injunction in relation to Remington I “has already granted the relief
sought by the present petition.” 124 But after supplemental briefing, the parties now
agree that the Judge Burgess Injunction lapsed upon issuance of the Board’s April 2013
decision in that proceeding. 125 Thus, that injunction is now active only with respect to
the four ULPs addressed in Remington II. 126
121
Frankl, 650 F.3d at 1340 (the administrative process may take years, but “time is usually of
the essence in labor disputes”) (internal quotation omitted)).
122
See note 42.
123
Small, 661 F.3d at 1196 (quoting Frankl, 650 F.3d at 1365).
124
Docket 17 at 7 (Pet. Opp’n) (italics removed).
125
See Docket 25 at 5-6 (Pet’r Supp. Br.); Docket 29 at 7 (Resp’t Supp. Br.) (“Remington
concedes . . . that a 10(j) injunction lapses by operation of the Act, upon issuance of the Board
decision.”).
126
See Docket 25 at 7 (Pet’r Supp. Br.) (listing four ULPs).
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In its supplemental briefing, Remington asserts, however, that injunctive relief is
nevertheless unnecessary because the Board’s affirmation of the ALJ Meyerson
Decision is now pending review before a Court of Appeals, and that during the
pendency of that appellate review, the Board may seek injunctive relief from a Court of
Appeals through 29 U.S.C. § 160(e) (§ 10(e)). 127 Even assuming that this could afford
the Petitioner complete relief with respect to Remington II, there is no indication in the
record that this relief has been sought. Thus, it does not make the relief sought in this
case unwarranted.
E. Public Interest.
“[O]rdinarily when . . . the [Regional] Director makes a strong showing of
likelihood of success and of likelihood of irreparable harm, the [Regional] Director will
have established that preliminary relief is in the public interest.” 128 Here, Petitioner has
made the requisite strong showing. Accordingly, a preliminary injunction is in the public
interest.
CONCLUSION
Based on the foregoing, Remington’s Motion to Dismiss at Docket 18 is DENIED,
and the Petition for a § 10(j) Preliminary Injunction at Docket 1 is GRANTED. The
terms of the Preliminary Injunction are set forth in the following Order.
//
//
127
See Docket 29 at 7 (Resp’t Supp. Br.). As noted above, there is some dispute concerning
which Court of Appeals has jurisdiction. See note 23.
128
Small, 661 F.3d at 1197 (quoting Frankl, 650 F.3d at 1365).
3:13-cv-00213-SLG, Hooks v. Remington Lodging & Hospitality, LLC
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ORDER
The Petition for Injunctive Relief filed by Petitioner Ronald K. Hooks, Regional
Director for Region 19 of the National Labor Relations Board, for and on behalf of the
Board, against Remington Lodging & Hospitality, LLC, d/b/a The Sheraton Anchorage,
pursuant to § 10(j) of the National Labor Relations Act (Docket No. 1) is GRANTED. IT
IS HEREBY ORDERED that, pending the final disposition by the National Labor
Relations Board of the matters involving the Parties to this action now pending before it:
1. Respondent, Remington Lodging & Hospitality, LLC, d/b/a The Sheraton
Anchorage, and its officers, agents, servants, employees, attorneys, and all other
persons who are in active concert or participation with those persons, are hereby
enjoined and restrained from:
a. Maintaining and enforcing the following access rules in its employee
handbook:
i. Employees “agree not to return to the Hotel before or after [their]
working hours without authorization from [their] manager;” and
ii. Employees “must confine their presence in the Hotel to the area of
their job assignment and work duties. It is not permissible to roam
the property at will or visit other parts of the Hotel, parking lots, or
outside facilities without permission of the immediate Department
Head;”
b. Maintaining and enforcing the following solicitation and distribution rule in
its employee handbook:
i. “Distribution of any literature, pamphlets, or other materials in a
guest or work area is prohibited … Solicitation of guests by
associates at any time for any purpose is also inappropriate;”
c. Interrogating employees about their Union activities;
d. Engaging in surveillance of its employees’ Union activities;
e. Creating the impression that its employees’ Union activities are under
surveillance;
f. Coercing its employees regarding their testimony at an NLRB hearing;
3:13-cv-00213-SLG, Hooks v. Remington Lodging & Hospitality, LLC
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g. Telling employees to remove their Union buttons;
h. Prohibiting off-duty employees from distributing Union literature on Hotel
property;
i.
Threatening to call the police on employees or have its employees arrested
because they were engaged in Union activity;
j.
Disciplining employees because of their Union activities;
k. Issuing employees poor evaluations because of their Union activities;
l.
Changing schedules of employees because of their Union activities or
support;
m. Decreasing the hours or shifts of employees because of their Union
activities or support;
n. Increasing the number of scheduled shifts for banquet employees who do
not support the Union to discourage employees from engaging in Union
activities;
o. Discharging employees because of their protected concerted and/or Union
activities, and/or their participation in Board processes;
p. Failing and refusing to bargain in good faith with the Union by unilaterally:
i. banning Union Representative Daniel Esparza from the Hotel;
ii. eliminating banquet employees’ scheduling preference sheets;
iii. terminating its practice of posting banquet employee schedules by
noon on Fridays;
iv. changing the sick leave policy in the parties’ expired collectivebargaining agreement;
v. subcontracting bargaining unit work;
vi. reducing banquet server compensation by allocating a portion of
their gratuities to pay for the services of third party banquet servers;
vii. changing banquet server and set up duties;
viii. changing banquet server and set up staffing and scheduling; and
ix. failing and refusing to provide the Union with information necessary
for and relevant to the Union’s performance of its duties as the
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exclusive collective-bargaining representative of bargaining unit
employees; and
q. In any other manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed by § 7 of the Act.
2. Respondent, Remington Lodging & Hospitality, LLC, d/b/a The Sheraton
Anchorage, and its officers, agents, servants, employees, attorneys, and all other
persons who are in active concert or participation with those persons, are hereby
directed to:
a. Within five (5) days of this Order, offer to reinstate Dexter Wray, Yanira
Medrano, and Elda Buezo to their former positions along with their seniority
and all other rights and privileges;
b. Within fourteen (14) days of this Order, remove from its files all references
to the discharges of Dexter Wray, Yanira Medrano, and Elda Buezo and
notify them in writing that this has been done and that the discharges will
not be used against them in any way;
c. Within fourteen (14) days of this Order, remove from its files all references
to the written disciplines and poor evaluations issued to Fay Gavin, Ana
Rodriguez, Audelia Hernandez, Shirley Grimes, and Dexter Wray and
notify them in writing that this has been done and that these will not be
used against them in any way;
d. Within fourteen (14) days of this Order, remove from its files all references
to disciplines issued as a result of its unilateral changes made in the terms
and conditions of their employment;
e. At the request of the Union, rescind the unilateral changes made in its
employees’ terms and conditions of employment implemented in or about
July 2010, including: changing its sick leave policy from that contained in
the expired collective bargaining agreement;
f. At the request of the Union, rescind the unilateral changes made in its
employees’ terms and conditions of employment implemented in or about
October 2011, including: changing banquet server and set up job duties,
and changing banquet server and set up staffing and scheduling;
g. Immediately post copies of this Order for no fewer than 60 days, at all
locations where Respondent’s notices to employees are customarily
posted; maintain such notices free from obstructions or defacements
pending the Board’s administrative proceeding; and grant to agents of the
Board reasonable access to Respondent’s Hotel to monitor compliance
with this posting requirement;
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h. Within ten (10) days after entry of this Order, hold a mandatory meeting or
meetings for employees, scheduled to ensure the widest possible
attendance during regular business hours and on Respondent’s premises,
at which the Order is to be read in English and Spanish to the employees
by a responsible management official or, at Respondent’s option, a Board
Agent in a responsible official’s presence; and
i.
Within twenty (20) days of the issuance of this Order, file with the District
Court and serve a copy upon Petitioner, a sworn affidavit from a
responsible Respondent official which describes with specificity how
Respondent has complied with the terms of this Order, including the
exact locations where Respondent posted the materials required under
this Order.
DATED at Anchorage, Alaska, this 18th day of March 2014.
/s/ Sharon L. Gleason
United States District Judge
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