Fortuna Enterprises, LP v. National Labor Relations Board, 789 F.3d 154

Background

Fortuna (operator of the Los Angeles Airport Hilton) suspended employee Sergio Reyes; about 70–100 employees then gathered in the staff cafeteria on May 11, 2006 seeking to meet with senior managers about Reyes’s suspension.
Management (housekeeping director Samayoa and others) ordered employees to return to work multiple times and warned suspensions could follow; employees persisted while managers told them they were trying to contact senior managers.
Management suspended 77 employees for five days for insubordination/failure to follow instructions after a delegation tried to return to work and was told suspensions applied.
The NLRB’s ALJ and Board found the suspensions violated § 8(a)(1) because the on-site work stoppage was protected concerted activity under § 7, applying the NLRB’s ten-factor Quietflex balancing test.
This Court previously granted limited review, affirming most factor findings but remanding to clarify Quietflex factor 3 (interference with production) and to reassess factors 4 and 7 (access to/grievance procedures) in light of evidence that Fortuna’s open-door policy could address group grievances.
On remand the Board clarified factor 3 (focus on whether strikers prevented other employees from performing duties), reweighed the factors, concluded the stoppage was protected for its entire duration, and ordered enforcement; Fortuna again challenged the Board’s analysis.

Issues

Issue	Fortuna’s Argument	NLRB’s Argument	Held
Proper formulation of Quietflex factor 3 (interference with production)	Factor 3 should treat service industry realities; withdrawal of services necessarily affects non-striking employees and can weigh against protection	Focus should be on whether strikers prevented other working employees from performing duties; mere withholding of one’s own labor is not disqualifying	Court upheld Board’s clarified test: focus on prevention of others doing their jobs; Board’s application supported by substantial evidence
Effect of Fortuna’s “open door” grievance procedure (factors 4 & 7)	Existence and availability of an effective grievance procedure weighs heavily against protecting on-site stoppage; employees should have used open-door or gone off-site	Availability is a factor but not dispositive; here managers’ repeated assurances that they were trying to contact senior managers made employees reasonably believe a meeting might occur, supporting protection	Court upheld Board’s weighing: open-door given due but not decisive weight; managerial assurances supported protection
Whether Board’s reweighting on remand was results-driven	Reweighting to reach same outcome is improper and may be outcome-oriented	Board complied with remand, reasonably reanalyzed factors and explained weightings based on the record	Court found no abuse of discretion; Board’s analysis was reasonable and supported by substantial evidence
Whether the on-site stoppage was protected concerted activity	Stoppage was disruptive and justified suspensions	Stoppage was peaceful, limited, did not prevent others from working, and pursued mutual aid/protection—thus protected	Court enforced Board order: the stoppage was protected and suspensions violated § 8(a)(1)

Key Cases Cited

New Process Steel, L.P. v. NLRB, 560 U.S. 674 (directions on Board composition and decision validity)
Tualatin Elec., Inc. v. NLRB, 253 F.3d 714 (deference to Board legal determinations)
Citizens Inv. Servs. Corp. v. NLRB, 430 F.3d 1195 (Board’s expertise and deference on protected concerted activity)
NLRB v. City Disposal Sys., Inc., 465 U.S. 822 (deference to Board in labor relations determinations)
Cone Mills Corp. v. NLRB, 413 F.2d 445 (example where grievance procedure influenced protection analysis)
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (law-of-the-case doctrine on successive appeals)
Fortuna Enters., L.P. v. NLRB, 665 F.3d 1295 (this Court’s prior opinion remanding Quietflex factor 3 and remediation of factors 4 and 7)