Joseph Frankl v. Hth Corporation
693 F.3d 1051
9th Cir.2012Background
- Consolidated appeal from NLRB 2011 ruling finding unfair labor practices by HTH (2005–2008) and district court’s 2010 injunction; Board seeks enforcement, HTH seeks review of injunction.
- Long-running dispute between HTH Corp. (Pacific Beach Hotel) and ILWU Local 142; elections in 2002 and 2005, with 2005 certification for the Union.
- HTH shifted operations to PBHM in 2007, but retained control; union negotiations failed, with HTH demanding provisions that would eliminate meaningful union participation.
- HTH began unilateral changes in late 2007, withdrew recognition, and terminated or refused to rehire union activists, including Villanueva.
- Union filed multiple unfair-labor-practice charges; ALJ found violations; Board ordered relief; district court issued a second 10(j) injunction which this court reviews for enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Bad-faith bargaining and unilateral changes 2005–2008 | Frankl argues bargaining was in bad faith | HTH contends positions were hard bargaining, not bad faith | Board-supported finding of bad-faith bargaining upheld |
| Withdrawal of recognition in late 2007 based on majority loss | Union maintained majority support; removal improper | HTH relied on subjective belief union lacked support | Insufficient objective evidence of loss of majority; withdrawal found improper |
| 2010 discipline, access bans, and financial-information refusals under NLRA 8(a)(1)(3)(5) | Actions interfered with union rights and bargaining | HTH argues actions were justified or unrelated to union activity | Likely violations; district court did not abuse discretion in ordering relief and reinstatement |
| Extension of certification period and award of costs | Extension necessary to remedy prolonged bargaining | Arguments about productive days during extension | Board’s extension and cost-shifting upheld as reasonable remedies under NLRA |
| Likelihood of success and irreparable harm for 10(j) injunction | Irreparable harm to union representation if practices continued | HTH disputes likelihood of success and harm | District court did not abuse discretion; injunction affirmed |
Key Cases Cited
- Levitz Furniture Co. of the Pacific, Inc., 333 N.L.R.B. 717 (2001) (objective evidence required to withdraw recognition; bargaining posture must not eliminate union participation)
- Liquor Industry Bargaining Group & Fedway Assocs., 333 N.L.R.B. 1219 (2001) (unreasonable demands that exclude union participation show bad faith bargaining)
- Radisson Plaza Minneapolis, 307 N.L.R.B. 94 (1992) (provisions giving employer broad unilateral power illustrate bad faith)
- Hydrotherm, Inc., 302 N.L.R.B. 990 (1991) (same principle regarding unilateral change in policies shows bad faith)
- New Breed Leasing Corp. v. NLRB, 111 F.3d 1460 (9th Cir. 1997) (upholds ALJ credibility and Board findings in NLRB review)
- Frankl v. HTH Corp., 650 F.3d 1334 (9th Cir. 2011) (precedent on 10(j) relief and maintenance of rights during prolonged disputes)
- NLRB v. Dist. Council of Iron Workers of the State of Cal., 124 F.3d 1094 (9th Cir. 1997) (enforcement considerations and remedial remedies under NLRA)
- Frontier Hotel & Casino, 318 N.L.R.B. 857 (1995) (costs of unusually aggravated misconduct may be awarded to deter delay)
- Unbelievable, Inc. v. NLRB, 118 F.3d 795 (D.C. Cir. 1997) (justifies awarding expenses when misconduct infects bargaining process)
- Healthcare Employees Union, Local 399 v. NLRB, 463 F.3d 909 (9th Cir. 2006) (establishes standard for showing anti-union animus as motive)