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Remington Lodging & Hospitality, L.L.C. v. National Labor Relations Board

United States Court of Appeals, Fifth Circuit

January 27, 2017

REMINGTON LODGING & HOSPITALITY, L.L.C., Petitioner Cross-Respondent
v.
NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner

         On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

          Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.

          W. EUGENE DAVIS, Circuit Judge:

         Remington Lodging & Hospitality, LLC ("Remington") petitions for partial review of a National Labor Relations Board ("NLRB" or the "Board") order finding that it violated Sections 8(a)(1) and (3) of the National Labor Relations Act ("NLRA"). The Board cross-petitions for enforcement of the order. For the reasons set out below, we DENY Remington's petition for partial review and ENFORCE the order.

         I.

         We have jurisdiction to decide this case pursuant to Sections 10(e) and (f) of the NLRA.[1] "We review the NLRB's legal conclusions de novo and its 'factual findings under a substantial evidence standard.'"[2] "'Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. It is more than a mere scintilla and less than a preponderance.'"[3] "In making this determination, 'we may not reweigh the evidence, try the case de novo, or substitute our judgment for that of the NLRB, even if the evidence preponderates against the NLRB's decision.'"[4]"'Only in the most rare and unusual cases will an appellate court conclude that a finding of fact made by the NLRB is not supported by substantial evidence.'"[5]

         II.

         Remington challenges two of the Board's findings. Because these two findings are unrelated, we discuss each separately and in turn.

         A.

         Remington is a hotel management company that, in December 2011, was hired to manage the Hyatt Regency Long Island hotel (the "Hyatt" or the "Hotel"). The Hotel, at the time, outsourced its housekeeping department to a staffing company called Hospitality Staffing Services ("HSS"). It was also one of the poorest performing Hyatt-branded properties, in terms of guest-satisfaction scores, in the United States.

         Upon taking over as property manager, Remington decided to terminate the Hotel's contract with HSS, consistent with its general preference to directly employ its employees. Meanwhile, the Hotel's guest-room component score - which serves as the primary indicator of housekeeping effectiveness and is measured against an average benchmark of 50 - continued to decline. In March, it was 20.4. In April, it was 6.0. In May, it was 8.3. And in June, it was 1.1.

         On June 28, 2012, Remington contacted HSS about re-outsourcing the Hotel's housekeeping department, citing the aforementioned scores and unrelated financial considerations. On August 16, 2012, Remington and HSS executed a new outsourcing agreement ("the 2012 HSS contract"), which took effect on August 21, 2012. On February 12, 2016, the Board held that the 2012 HSS contract was motivated, at least in part, by anti-union animus and that it therefore violated Sections 8(a)(1) and (3) of the NLRA.

         Remington challenges this finding on both factual and legal grounds. We begin with the law. Section 8(a)(1) states that employers may not "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed" by the NLRA.[6] Section 8(a)(3) states that employers may not discriminate "in regard to hire or tenure of employment . . . to encourage or discourage membership in any labor organization."[7] Although the protections of Section 8(a)(3) and Section 8(a)(1) "are not contemporaneous, a violation of [the former] constitutes a derivative violation of [the latter]."[8]

         Where, as here, Section 8 allegations turn on employer motivation, they are analyzed under the burden-shifting framework first established in N.L.R.B. v. Wright Line, a Division of Wright Line, Inc., 662 F.2d 899 (1st Cir. 1981), and approved by the Supreme Court in N.L.R.B. v. Transportation Management Corp., 462 U.S. 393, 400-01 (1983), abrogated in part on other grounds, Director, Office of Workers' Compensation Programs, Department of Labor v. Greenwich Collieries, 512 U.S. 267, 276-77 (1994).[9] Pursuant to this framework, the initial burden rests with the General Counsel to show, by a preponderance of the evidence, that the employer undertook an adverse employment action motivated, at least in part, by anti-union animus.[10] The burden then shifts to the employer to show, by a preponderance of the evidence, that it would have taken the adverse action "regardless of any [anti-union] animus."[11] An employer who would have taken the same action regardless of any anti-union animus has not violated Section 8.

         Remington argues that in order to violate Section 8(a)(3), the General Counsel must produce evidence that the employer's "discrimination in fact caused or resulted in a discouragement of union membership" which, in this case, the General Counsel failed to do. That requirement, however, is completely inconsistent with our precedent. We have held that Section 8(a)(3) "makes it unlawful for an employer to discriminate against employees . . . for the purpose of discouraging membership in a labor organization."[12] The General Counsel need not prove discouragement as a matter of fact.

         Now on to the facts. Remington argues that the Board's finding that the 2012 HSS contract violated Sections 8(a)(1) and (3) is not supported by substantial evidence. Having reviewed all of evidence, we disagree.

         Jose Vega, a union activist, began visiting the Hotel in April 2012, and union activity commenced shortly thereafter. Nina Palacios, a Remington housekeeper, testified that in May 2012, Remington Supervisor Percida Rosero approached her and asked whether she had been asked to participate in a union meeting. Veronica Flores, a Remington housekeeper, testified that in June 2012, the Hotel's then-director of housekeeping, Andrew Arpino, called her into his office and asked whether she "knew anything about a union." No more than 28 days later - perhaps coincidentally ...


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