Frankl v. HTH Corp.
650 F.3d 1334
| 9th Cir. | 2011Background
- This is an NLRA § 10(j) injunction appeal arising from alleged unfair labor practices at the Pacific Beach Hotel in Hawaii.
- In 2007 the NLRB General Counsel was delegated authority to initiate and conduct 10(j) litigation, a delegation challenged by the Hotel as lacking Board approval for this petition.
- The Hotel allegedly violated § 8(a)(1), (3), and (5) by coercively bargaining and by excluding five union activists from work during 2006–2007, while PBHM managed the hotel under a separate agreement.
- The District Court issued a 10(j) injunction requiring bargaining with the Union, reinstatement of certain employees, and other remedial measures, which the Hotel appealed.
- The Board ultimately issued decisions affirming ALJ findings, modifying remedies, and the Ninth Circuit addressed whether the Board’s delegation to the General Counsel was lawful and whether the injunction was proper on merits.
- Key mootness questions were addressed; the court held the appeal timely and live because the district court’s injunction and contempt proceedings were implicated by the Board’s ongoing remedial actions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board could delegate 10(j) petition authority to the General Counsel | Hotel argues delegation lacks Board approval for each petition. | Board may delegate to General Counsel under §3(d) and related historical practice. | Delegation valid; Board may assign 10(j) petition decisions to General Counsel. |
| Whether the district court lacked jurisdiction due to improper delegation | Improper delegation deprives court of subject-matter jurisdiction. | facially regular petition supports jurisdiction; propriety may be reviewed on merits. | Jurisdiction not foreclosed; proper delegation supports jurisdiction. |
| Whether §10(j) petitions require Board approval for each case | Board must approve every individual petition. | Board may authorize General Counsel to decide in which cases to seek 10(j) relief. | Board may delegate case-by-case filing authority to General Counsel. |
| Merits: likelihood of success on §8(a)(5) bad-faith bargaining and related actions | Board likely to find bad-faith bargaining and related unilateral actions. | Hotel’s conduct did not necessarily violate 8(a)(5) or 8(a)(3) given agency questions. | District Court’s likelihood-and-merits findings affirmed; 8(a)(5) and related 8(a)(3) violations likely proven. |
| Irreparable harm and public interest in granting §10(j) relief | Interim relief necessary to preserve bargaining process and union representation. | Delay and potential retroactive relief could suffice; irreparable harm not established. | Likely irreparable harm shown and relief in the public interest; injunction affirmed. |
Key Cases Cited
- New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (U.S. 2010) (longstanding practice supports Board-General Counsel delegation of 10(j) authority)
- Overstreet v. El Paso Disposal, L.P., 625 F.3d 844 (5th Cir. 2010) (endorses Board delegation of 10(j) authority to General Counsel)
- Muffley v. Spartan Mining Co., 570 F.3d 534 (4th Cir. 2009) (supports Board delegation of 10(j) authority)
- McDermott v. Ampersand Publ’g, LLC, 593 F.3d 950 (9th Cir. 2010) (likelihood-of-success standard and related appellate review for 10(j))
- NLRB v. C&C Roofing Supply, Inc., 569 F.3d 1096 (9th Cir. 2009) (agency practice and authority of General Counsel recognized)
- Lee Lumber & Building Material Corp., 322 N.L.R.B. 175 (D.C. Cir. 1996) (taint from unfair labor practices on union support and relief)