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Hotel Committed Unfair Labor Practice By Refusing To Rehire Union-Affiliated Former Employees
In 2009, Kava Holdings, owner of the Hotel Bel-Air, temporarily closed the Hotel for extensive renovations. As part of the temporary closure, Kava laid off all union employees. The union was the exclusive collective bargaining representative for a unit of employees that included kitchen workers, dining and room service employees, housekeepers, garage and front desk employees, gardeners, maintenance employees, and more.
In July 2011, as Kava prepared to reopen the Hotel, Kava conducted a three-day job fair to fill about 306 unit positions. Kava invited its union-affiliated former employees to apply during the first morning of the job fair and reserved the remaining two-and-a-half days for members of the public. This schedule allowed Kava to distinguish easily union-affiliated former employees from other applicants. Approximately 176 union-affiliated former employees applied for those positions. Kava refused to hire 152 of them, even though they were qualified for the open positions and many had several prior years of positive evaluations while they worked for the Hotel.
When Kava reopened the Hotel in October 2011, Kava refused to recognize the union and made various unilateral changes to the bargaining unit’s terms and conditions of employment, including wages, benefits, breaks, and paid time off.
The union filed an unfair labor practice charge regarding Kava’s reopening conduct.
The National Labor Relations Board (NLRB) found that Kava committed unfair labor practices by refusing to hire former employees because of their union affiliation, by refusing to recognize and bargain with the Union, and by unilaterally changing unit employees’ terms and conditions of employment, in violation of the National Labor Relations Act. The NLRB ordered various remedies, including reinstatement of former employee applicants who were affected by Kava’s discriminatory conduct.
Kava petitioned the Ninth Circuit Court of Appeals for review of the NLRB’s order.
The Court stated that to allege a discriminatory refusal to hire, the NLRB must show that (1) the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known requirements of the positions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that anti-union animus contributed to the decision not to hire the applicants.
Here, the first two elements were not at issue, so the Court focused on the third element and found that substantial evidence supported the NLRB’s finding of anti-union animus. The Court considered the testimony of Human Resources and Kava’s hiring conduct, including job fair records revealing that Kava disfavored former-employee applicants.
In a prior case with the Hotel, the NLRB had found that Kava violated its duty to bargain during the renovation closure by implementing a last, best, and final offer on severance, waiver, and release terms without first reaching a valid impasse with the union, and by bypassing the Union and dealing directly with laid-off employees. In this case, the NLRB found that Kava engaged in unlawful direct dealing by asking the laid-off employees to sign waivers of their recall rights in exchange for severance payments. Kava also engaged in unlawful conduct during the initial eight months of Kava’s closure of the hotel for renovations. The Court determined that the NLRB could reasonably infer from Kava’s past conduct, that Kava intended to prevent union-affiliated employees from comprising the majority of the Hotel’s workforce upon reopening.
The Court upheld the NLRB’s decision and dismissed Kava’s petition for review.
Kava Holdings, LLC v. NLRB (9th Cir. 2023) 85 F.4th 479.
Note: In this case, the employer blatantly disfavored unionized employees as it rehired for the hotel reopening because it wanted a non-unionized hotel staff. This decision sends a strong message that anti-union animus can be inferred in rehiring decisions.