REMINGTON LODGING & HOSPITALITY, L.L.C., Petitioner Cross-Respondent
NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
EUGENE DAVIS, Circuit Judge:
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.
jurisdiction to decide this case pursuant to Sections 10(e)
and (f) of the NLRA. "We review
the NLRB's legal conclusions de novo and its
'factual findings under a substantial evidence
"'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.'" "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
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.'"
challenges two of the Board's findings. Because these two
findings are unrelated, we discuss each separately and in
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.
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.
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.
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. 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." 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]."
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). 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. 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." An employer
who would have taken the same action regardless of any
anti-union animus has not violated Section 8.
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." The General
Counsel need not prove discouragement as a matter of fact.
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.
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 ...