Judge Jennifer Sung, nominated by President Biden to the Ninth Circuit, wrote a unanimous decision that ordered enforcement of a National Labor Relations Board (NLRB) ruling against a business guilty of anti-union activity.  The activity included refusing to rehire employees who had joined the union. The October 2023 decision was in NLRB v Kava Holdings LLC.

 

What happened in this case?

 Kava Holdings, a corporation that operates hotels and motels, decided to renovate and then reopen the Hotel Bel-Air in Los Angeles. Employees were laid off during the renovation and then re-applied for jobs. 176 union-affiliated employees applied for some 306 positions.

Kava refused to rehire 152 of these 176 union members. It also refused to recognize and bargain with the union that had represented hotel employees, and made unilateral changes to the terms and conditions of employment, concerning such subjects as wages, benefits, and time off.

After extensive proceedings, the NLRB found that Kava had committed unfair labor practices in violation of federal law. Kava tried to reverse the NLRB in the Ninth Circuit, while the NLRB sought enforcement of its decision.

 

How did Judge Sung and the Ninth Circuit Rule and Why is it Important?

Judge Sung wrote a unanimous opinion that upheld the NLRB’s decision and ordered its enforcement. This included reinstating the union-affiliated former employees, who the NLRB found clearly qualified for the positions they applied for.

Judge Sung found that the record contained substantial evidence to support the NLRB Administrative Law Judge’s conclusion that Kava had “anti-union animus” and wanted to re-open the hotel “as a non-union hotel,” which “contributed” to its decision not to rehire the union-affiliated employees. Judge Sung thoroughly examined and dismissed all of Kava’s claims, including its argument that the NLRB had not proven that union affiliation was a “motivating factor” that “caused” the refusal to rehire. The court also upheld the NLRB’s findings of improper unilateral changes concerning wages and other matters as well as refusal to bargain with the union. Among other remedies, Kava was ordered to bargain with the union.

Judge Sung’s opinion is obviously important to the unionized employees of Hotel Bel-Air and their union. The decision also sends a strong message concerning the importance of enforcement of NLRB orders  and avoiding anti-union activity to businesses in the Ninth Circuit, including California, Idaho, Alaska, Arizona, Hawaii, Montana. Nevada, Oregon, and Washington. In addition, the ruling serves as another reminder of the importance of promptly confirming fair-minded Biden nominees like Judge Sung to our federal courts.