KAVA HOLDINGS, LLC V. NLRB, No. 21-70225 (9th Cir. 2023)
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Intervenor UNITE HERE Local 11 (Union) was the exclusive collective bargaining representative for a unit of employees whom Kava Holdings LLC employed at the Hotel Bel-Air. Kava temporarily closed the Hotel for extensive renovations and laid off all the unit employees. As Kava prepared to reopen the Hotel, Kava conducted a job fair to fill about 306 unit positions. Approximately 176 union-affiliated former employees applied for those positions. Kava refused to rehire 152 of them. The National Labor Relations Board found that Kava committed unfair labor practices. The Board ordered various remedies, including reinstatement of the former employee applicants who were affected by Kava’s discriminatory conduct. Kava petitioned for review of the Board’s order and a supplemental remedial order, and the Board cross-applied for enforcement.
The Ninth Circuit denied in part and dismissed in part Kava Holdings, LLC’s petition for review and granted the National Labor Relations Board’s cross-petition for enforcement of its order, which found that Kava committed unfair labor practices in violation of Sections 8(a). The panel held that substantial evidence supported the Board’s finding that Kava committed an unfair labor practice by refusing to rehire union-affiliated former employees so that Kava could avoid its statutory duty to bargain with the Union. The panel held that substantial evidence supported the Board’s finding that Kava committed an unfair labor practice by refusing to recognize and bargain with the Union as it reopened the Hotel and by unilaterally changing the bargaining unit’s established pre-closure terms and conditions of employment.
Court Description: Labor Law. The panel denied in part and dismissed in part Kava Holdings, LLC’s petition for review and granted the National Labor Relations Board’s cross-petition for enforcement of its order, which found that Kava committed unfair labor practices in violation of Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act.
Intervenor UNITE HERE Local (the Union) was the exclusive collective bargaining representative for a unit of employees whom Kava employed at the Hotel Bel- Air. When the Hotel reopened after extensive renovations, Kava refused to rehire 152 employees even though they were qualified for the open positions and refused to recognize the Union as the unit employees’ bargaining representative.
The panel held that substantial evidence supported the Board’s finding that Kava committed an unfair labor practice by refusing to rehire union-affiliated former employees so that Kava could avoid its statutory duty to bargain with the Union. Substantial evidence supported the Board’s finding of anti-union animus where the Board properly drew an inference of animus from Kava’s prior unlawful conduct, the Board reasonably inferred animus from the testimony of a Kava human resources manager, and there was more than substantial evidence of Kava’s generalized animus against former employees based on their union affiliation. The panel rejected Kava’s argument that it affirmatively proved that it refused to rehire the former employees for legitimate business reasons.
The panel held that substantial evidence supported the Board’s finding that Kava committed an unfair labor practice by refusing to recognize and bargain with the Union as it reopened the Hotel, and by unilaterally changing the bargaining unit’s established, pre-closure terms and conditions of employment.
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