HTH Corp., 37-CA-007965

• Court: National Labor Relations Board
• Writing for the Court: MARK GASTON PEARCE, CHAIRMAN.
• Citation: 361 NLRB No. 65
• Parties: HTH CORPORATION, PACIFIC BEACH CORPORATION, AND KOA MANAGEMENT, LLC, A SINGLE EMPLOYER, D/B/A PACIFIC BEACH HOTEL AND INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 142
• Docket Number: 37-CA-008112,37-CA-008113,37-CA-008096,37-CA-008145,37-CA-007965,37-CA-008097,37-CA-008094,37-CA-008064
• Decision Date: 24 October 2014

361 NLRB No. 65

HTH CORPORATION, PACIFIC BEACH CORPORATION, AND KOA MANAGEMENT, LLC, A SINGLE EMPLOYER, D/B/A PACIFIC BEACH HOTEL AND INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 142

Nos. 37-CA-007965, 37-CA-008064, 37-CA-008094, 37-CA-008096, 37-CA-008097, 37-CA-008112, 37-CA-008113, 37-CA-008145

United States of America, National Labor Relations Board

October 24, 2014

DECISION AND ORDER

MARK GASTON PEARCE, CHAIRMAN.

On September 13, 2011, Administrative Law Judge John J. McCarrick issued the attached decision.^[1] The Respondents filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondents filed a reply brief. In addition, the General Counsel filed cross-exceptions and a supporting brief, the Respondents filed an answering brief, and the General Counsel filed a reply brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, ^[2] and conclusions, to modify his remedy, and to adopt the recommended Order as modified and set forth in full below.

AMENDED REMEDY

During the Respondents' 10-year history of violations before us and the Federal courts, we have imposed our usual remedies and secured Section 10(j) injunctions.^[3] In addition to the egregious and pervasive violations we find today, ^[4] we have found in prior decisions that the Respondents maintained an overbroad solicitation policy and threatened and coerced employees (which made it necessary for us to overturn election results and rerun the election), ^[5] unlawfully granted promotions and wage increases during the critical period before an election, ^[6] unlawfully discharged members of the Union's bargaining committee, promulgated numerous overbroad rules, threatened employees with job loss, bargained in bad faith, unlawfully withdrew recognition from the employees' chosen representative, unilaterally changed various terms and conditions of employment, unlawfully imposed discipline, laid off employees and reassigned employees to other jobs without providing the Union notice and opportunity to bargain, and refused to provide the Union with requested information to enable it to fulfill its bargaining responsibilities.^[7] Not only have the Respondents repeatedly acted to prevent employees from exercising their Section 7 rights and retaliated against employees when they nevertheless dared to exercise their rights, but the Respondents' violations have tended to undermine the Union as the employees' freely chosen representative. These violations have tended to weaken the Union in the eyes of its members and may well have forced it to incur additional expenses in an attempt to maintain employee support undermined by the Respondents' unlawful conduct.

Despite having been found in violation of multiple provisions of the Act, having been found to have engaged in objectionable conduct that interfered with elections on two occasions, having been subject to two Section 10(j) injunctions, and having been found in contempt of court for violating a Federal district court's injunction, the case before us demonstrates that the Respondents still have not complied with the remedial obligations imposed on them during our earlier encounters. Rather, they have continued to engage in unlawful activity, some of which repeatedly targeted the same employees for their protected activity and detrimentally affected collective bargaining. For example, after the Board held that the Respondents unlawfully imposed unilateral increases to housekeepers' workloads in 2007, the Respondents only briefly restored the lower workloads before again unilaterally raising them.^[8] Similarly, the Respondents unlawfully disciplined, suspended, and then discharged discriminatee Rhandy Villanueva a second time for his protected activity, after he was reinstated pursuant to a Federal district court order of interim injunctive relief.^[9] By their actions, their words, ^[10] and their contempt of court, ^[11] the Respondents have made plain their persistent indifference toward their responsibilities under the Act and their equally persistent defiance of the Board and the courts.

Notably, in affirming the district court's most recent Section 10(j) injunction, the Ninth Circuit expressly condemned the Respondents' conduct and the blatant disregard that the Respondents have demonstrated for the Board's processes:

Two themes repeat themselves in the decade-long history of this dispute. The first is HTH's defiance of the Labor Act and its employees' statutory rights. The second is HTH's consistent losses before the agency and the courts A skeptical adjudicator might question whether HTH has ever taken seriously its obligations under the law. We hope that we do not need to consider that question again

Frankl v. HTH Corp., 693 F.3d at 1066-1067.

In addition to the Board's standard remedies for the specific violations in this case, the judge has recommended a broad cease-and-desist order as well as a notice-reading requirement. We agree that these remedies, as far as they go, are appropriate. Under the circumstances of this case, however--where, as described above, the Respondents' unfair labor practices have been severe and pervasive and have lasted for over a decade, notwithstanding the Board's enforcement efforts--we find that a broad cease-and-desist order and a notice-reading requirement are insufficient to dissipate the likely chilling effects of the Respondents' unlawful conduct, to promote the free exercise of Section 7 rights, and to fully restore the Union to its former position.

We have broad discretion to exercise our remedial authority under Section 10(c) of the Act even when no party has taken issue with the judge's recommended remedies. Teamsters Local 122, 334 N.L.R.B. 1190, 1195 (2001), enfd. mem. No. 01-1513 (D.C. Cir. 2003) (consent judgment); WestPac Electric, 321 N.L.R.B. 1322, 1322 (1996); Indian Hills Care Center, 321 N.L.R.B. 144, 144 fn. 3 (1996). That statutory provision directs us, upon finding a violation, to require “ such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of th[e] Act.”

With these principles and goals in mind, we turn to the question of whether additional remedies, beyond those ordered by the judge, are necessary and appropriate here to effectuate the policies of the Act. We must tailor the remedies to the violations in each case. See NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 348 (1938); Ishikawa Gasket America, 337 N.L.R.B. 175, 176 (2001), enfd. 354 F.3d 534 (6th Cir. 2004)(Board may impose additional remedies “ where required by the particular circumstances of a case”). Our remedial goal is to reaffirm to employees their Section 7 rights and to reassure them that the Respondents will respect those rights in the future. See Guardsmark, LLC, 344 N.L.R.B. 809, 812 (2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007); see also Tiidee Products, Inc., 196 N.L.R.B. 158, 159 (1972), enfd. sub nom. International Union of Elec., Radio & Mach. Workers, AFL-CIO v. NLRB, 502 F.2d 349 (D.C. Cir. 1974), cert. denied 417 U.S. 921 (1974).^[12]

Here, we draw primarily on the Board's established remedial options, including some that have not been used regularly but are clearly established in precedent. We also find it appropriate, in the context of this case, to enhance some of these established remedies, while tailoring them to the circumstances here. Our analysis, as set forth below, begins with monetary remedies, including the award of litigation costs to the General Counsel and the Union, as well as certain other costs incurred by the Union as a direct result of the Respondents' unfair labor practices. We next consider the need to ensure that the Respondents' employees are fully informed of the Board's actions and the protections of the Act, addressing the notice-posting requirement and examining the reasons why the circumstances here warrant an extended posting period, notice mailing, and an additional Explanation of Rights. Following that examination, we apply the historically recognized remedy of publication in media of general circulation in the area and our standard rescission of unlawful unilateral changes. Next, we explain the need for supervisory attendance at notice readings and a narrowly-crafted visitation remedy to ensure the Respondents' compliance with the mailing, posting, and publication components of our Order over the extended period we find necessary and order today. Finally, we address whether nontraditional remedies may be required to make whole employee Rhandy Villanueva, who twice has been unlawfully discharged.

After consideration of the full record, as well as the nature of the violations before us, we amend the judge's recommended remedies and modify his recommended Order to conform to our findings below and to the Board's standard remedial language.^[13] We also substitute a new notice to conform to the Order as modified and in accordance with Durham School Services, 360 N.L.R.B. No. 85 (2014).

1. Litigation expenses of the General Counsel and the Union

The Board has awarded litigation expenses where a respondent asserts frivolous defenses or otherwise exhibits bad faith in the conduct of litigation or actions leading to the litigation. See, e.g., Camelot Terrace, 357 N.L.R.B. No. 161 (2011); Teamsters Local 122, 334 N.L.R.B. 1190, 1193 (2001); Alwin Mfg. Co., 326 N.L.R.B. 646, 647 (1998), enfd. 192 F.3d 133 (D.C. Cir. 1999); Lake Holiday Manor, 325 N.L.R.B. 469, 469 fn. 5 (1998); see generally Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980). We find that standard met here by, inter alia, the Respondents' conduct leading up to the instant litigation. Accordingly, we order the Respondents to reimburse the General Counsel and the...