NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 29 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITE HERE! LOCAL 878, AFL-CIO, No. 21-70388

Petitioner, NLRB Nos. 19-CA-193656 19-CA-193659 v. 19-CA-203675 19-CA-212923

NATIONAL LABOR RELATIONS 19-CA-212950

BOARD, 19-CA-218647

19-CA-228578 Respondent.

MEMORANDUM*

NATIONAL LABOR RELATIONS No. 21-70700

BOARD,

NLRB Nos. 19-CA-193656 Petitioner, 19-CA-193659 19-CA-203675

LOCAL 878, 19-CA-212923

19-CA-212950 Intervenor, 19-CA-218647 19-CA-228578 v.

CP ANCHORAGE HOTEL 2, LLC, D/B/A

Hilton Anchorage,

Respondent.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. On Petition for Review of an Order of the National Labor Relations Board

Argued and Submitted July 8, 2022 Portland, Oregon

Before: R. NELSON and LEE, Circuit Judges, and RAKOFF,** District Judge.

UNITE HERE! Local 878, AFL-CIO (the “Union”) petitions for review of

the decision and order of the National Labor Relations Board (“NLRB” or “the

Board”) issued on February 10, 2021, against CP Anchorage Hotel 2, LLC d/b/a

Hilton Anchorage (“Hilton”). While finding that Hilton violated §§ 8(a)(1) and

8(a)(5) of the National Labor Relations Act (“NLRA”)1 by engaging in various

unlawful behaviors, the Board dismissed the Union’s allegations of unlawful

surveillance and unilateral change involving a purported increase in management

presence in Hilton’s cafeteria—where the union representatives typically met with

employees—in February 2017. The Board brings an application for enforcement

of the order. We have jurisdiction under 29 U.S.C. § 160. We deny the Union’s

petition for review and grant the Board’s application for enforcement.

“Decisions of the NLRB will be upheld on appeal if the findings of fact are

supported by substantial evidence and if the agency correctly applied the law.”

** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 1 29 U.S.C. §§ 158(a)(1), 158(a)(5).

2 Loc. Joint Exec. Bd. of Las Vegas (“LJEB”) v. NLRB, 515 F.3d 942, 945 (9th Cir.

2008) (“LJEB I”). “[W]e may not ‘displace the NLRB’s choice between two fairly

conflicting views, even though [we] would justifiably have made a different choice

had the matter been before [us] de novo.’” Sever v. NLRB, 231 F.3d 1156, 1164

(9th Cir. 2000) (last two alterations in original). Where, as is the case here, the

Board adopts the decision of the Administrative Law Judge (“ALJ”) in relevant

part as its own, “we . . . review the ALJ decision, as affirmed by the Board, as the

Board decision.” Transbay Container Terminal v. U.S. Dep’t, Lab. Benefits Rev.

Bd., 141 F.3d 907, 910 (9th Cir. 1998).

1. “An employer violates section 8(a)(5) [and (1)] by making any

unilateral changes to the mandatory bargaining subjects covered by section 8(d),”

namely wages, hours, and other terms and conditions of employment. LJEB v.

NLRB, 540 F.3d 1072, 1078 (9th Cir. 2008) (“LJEB II”). For the purposes of this

rule, a “past practice [may] become[] a term and condition of employment that

cannot be changed without first notifying and bargaining with the union to

agreement or good faith impasse.” Frankl ex rel. NLRB v. HTH Corp., 693 F.3d

1051, 1064 (9th Cir. 2012). The ALJ dismissed the allegation that Hilton

unilaterally changed management presence in the cafeteria in February 2017 based

on the finding that employees and managers were often simultaneously present in

the cafeteria, including during the times when union representatives visited

3 employees. Specifically, the ALJ credited testimony showing that at least five

managers regularly visited the cafeteria while union representatives were there

both before and after February 2017. The evidence thus provides substantial

support to the ALJ’s finding that there was no “past practice or reasonable

expectation that the Union would be able to meet with employees in the cafeteria at

the exclusion of management.” Accordingly, we affirm the Board’s dismissal of

the unilateral-change allegation.

2. Section 8(a)(1) of the NLRA states that “[i]t shall be an unfair labor

practice for an employer . . . to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in section 157 of this title.” 29 U.S.C.

§ 158(a)(1). “The Board has interpreted Section 8(a)(1) to make observation of

union activity unlawful, ‘if the observation goes beyond casual and becomes

unduly intrusive.’” LJEB I, 515 F.3d at 945 (quoting Kenworth Truck Co., Inc.,

327 N.L.R.B. 497, 501 (1999)). Based on the finding that there was no unusual

increase in management presence in the cafeteria on or after February 2017, the

ALJ concluded there was nothing “out of the ordinary” about the management

presence in the cafeteria beginning in February 2017 so as to create an impression

of surveillance. Because the evidence provides substantial support for this finding,

we also affirm the ALJ’s dismissal of the surveillance allegation.

3. “[W]here the Board has acted properly within its designated sphere,

4 the court is required to grant enforcement of the Board’s order.” NLRB v. Warren

Co., 350 U.S. 107, 112 (1955). Hilton does not challenge the Board’s findings of

unfair labor practices and concedes that the Board is within its statutory authority

in seeking to enforce its order. Nevertheless, Hilton urges the Court to refuse to

enforce the Board’s order, citing out-of-circuit decisions holding that a court can

“decline to enforce a Board order if the action sought in the order is unnecessary or

futile.” NLRB. v. Greensboro News & Rec., Inc., 843 F.2d 795, 798 (4th Cir.

1988). This Court has never recognized such an exception to the enforcement of a

Board order. But, even if such an exception exists, it does not apply here. Hilton

argues that the order is unnecessary given that it previously agreed to settle certain

charges against it. But the settlements cited by Hilton have never been finalized

and omit some of the order’s remedial requirements.

Hilton also argues that the Board is equitably estopped from seeking

enforcement in light of an email from an NLRB compliance officer stating

“compliance will be held until [the Court] rules on the Petition for Review.” Even

assuming the Board may be equitably estopped, estoppel requires a showing of

“detrimental reliance,” Corbello v. Valli, 974 F.3d 965, 978 (9th Cir. 2020), which

Hilton has not made. The Board is thus entitled to summary enforcement of its

order.

PETITION DENIED, APPLICATION GRANTED.

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