The U.S. Court of Appeals for the 9th Circuit this week upheld a federal injunction ordering the Pacific Beach Hotel in Waikiki to recognize the union selected by its employees, bargain in good faith for a labor contract, and reinstate five union leaders who were fired.
The ruling is the latest development in a nearly decade-long effort by Local 142 of the International Longshore and Warehouse Union (ILWU) to secure a collective-bargaining agreement for more than 500 employees at the prominent Waikiki property. The National Labor Relations Board, in a 3-0 decision issued last month, upheld an earlier Administrative Law Judge ruling that the hotel, also known as HTH Corp., violated the National Labor Relations Act in numerous respects. The Board ordered the hotel to offer reinstatement to a number of employees, resume bargaining, make employees whole for their losses, reimburse the Union for its negotiating expenses, and have a responsible corporate official publicly read a remedial notice to employees.
Typically, preliminary injunctions are sought to preserve the rights of employees while their cases move through the Board process, and a Board ruling would moot the need for such an effort. However, in this case, the Agency initiated contempt proceedings against the hotel, making the appellate court’s review of the injunction “crucial to a pending claim,” and, therefore, not moot.
The injunction was originally granted in March 2010 by a U.S. District Court judge at the request of attorneys for the National Labor Relations Board (NLRB), as authorized by the Agency’s General Counsel, pursuant to the Board’s temporary delegation of such authority. The Board typically authorizes all requests for injunctions, but in 2007, just before dropping to two members, the Board delegated authority to the General Counsel to ensure that injunction litigation could continue. The Ninth Circuit joined the Fourth, Fifth, and Eighth Circuits in rejecting the argument that the delegation was improper. No court has ruled to the contrary.
In denying the appeal, the three-judge panel from the 9th Circuit found that the hotel’s unfair labor practices were serious and required immediate injunctive relief. The court also engaged in a detailed discussion of the appropriate standards for granting interim injunctive relief under Section 10(j) of the National Labor Relations Act. Additional charges against the hotel are now pending before an NLRB Administrative Law Judge.