Frankl, et al. v. HTH Corporation, et al., No. 10-15984 (9th Cir. 2011)
Annotate this CaseThis case stemmed from the collective bargaining activities of the International Longshore and Warehouse Union, Local 142 (Union) and the Pacific Beach Hotel (Hotel) where the Union filed numerous unfair labor practice charges with the Regional Director of Region 20 of the Board (Director). At issue was an injunction issued pursuant to section 10(j), 29 U.S.C. 160(j), of the National Labor Relations Act (Act), 29 U.S.C. 151 et seq. The court must determine whether the injunction should be affirmed on its merits and whether the district court had the power to issue the injunction in the first place. As a preliminary matter, the court held that the appeal was not moot because its resolution was crucial to a pending claim for retrospective monetary relief sought by the National Labor Relations Board (Board) against the Hotel in a civil contempt proceeding. The court held that the text of the Act, reinforced by the Board's longstanding practice under section 10(e), allowed the Board to assign the General Counsel final authority in deciding when to petition for injunctive relief under section 10(j) in particular unfair labor practice cases pending before the Board. The three other circuits that have addressed this question agreed that the district court could entertain section 10(j) petitions approved by the General Counsel pursuant to the authority granted him by the Board in December 2007. Although the court's reasoning differed somewhat from that in those cases, the court's conclusion with regard to the validity of the Board's 2007 delegation of litigation authority under section 10(j) was identical. With respect to the Board's power to file petitions under section 10(j), it was sufficient that a quorum of the Board in 2007 decided to assign decisions as to individual petitions to the General Counsel. Under the distinction explained in New Process Steel, L.P. v. NLRB, nothing in the Board's quorum requirement would cause the General Counsel's ability to file section 10(j) petitions to lapse after the Board's membership fell below a quorum. As for the merits of the injunction, the court concurred with the district court's assessment that the Board was likely to determine, and be affirmed by the court in so determining, that the Hotel engaged in violations of section 8(a)(1), (3), and (5) of the Act by refusing to bargain in good faith and excluding five union activists from the workforce. The district court likewise did not abuse its discretion in concluding that the other requisites for section 10(j) relief were met. Accordingly, the court affirmed the injunction.
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