Court upholds Region 31’s win at the Board in Terranea Resort case

Los Angeles, California — On May 14, 2021, the United States Court of Appeals for the D.C. Circuit enforced the National Labor Relations Board’s Decision and Order in DH Long Point Management LLC, 369 NLRB No. 18 (2020). In that case, the Board found that the employer, which operates the 600-room luxury Terranea Resort in Rancho Palos Verdes, unlawfully disciplined and discharged a junior sous chef at one of the resort’s restaurants in retaliation for his activities in support of UNITE HERE Local 11.   

The court upheld the Board’s finding that the employer had discharged the junior sous chef in retaliation for his union activity. The court found “ample evidence” supported this finding, including that the employer’s president had said she’d allow unionization over her dead body; that the employer conducted a cursory investigation and bypassed its progressive disciplinary policy; that the junior sous chef was disciplined more severely than another equally culpable employee; and that supervisors made false and misleading statements during the hearing.    

In rejecting the employer’s argument that the employee was a supervisor within the meaning of the National Labor Relations Act, the court agreed with the Board’s determination that the employer did not meet its burden to prove the junior sous chef position exercised independent judgment. Instead, the evidence reflected that junior sous chefs exercised their judgment in a manner that was dictated by the recipes and procedures established by their superiors. While the junior sous chefs oversaw the cooking line, checked the dishes, and sometimes monitored the kitchen alone, the fact that they did so according to detailed instructions stripped them of independent judgment.  

The Board decision ordered the employer to offer full reinstatement to the employee, compensate him for lost wages, and post a notice to employees educating their employees on their rights to organize to improve their workplace.  

“I’m happy to see the court agreed with the Board’s well-reasoned decision, which affirms the importance of protecting workers’ rights under Section 7 of the National Labor Relations Act,” said Region 31 Regional Director Mori Rubin. “I’m pleased that the court protected the fundamental right of employees to unionize and join together in the workplace. In addition, I appreciate the fine work of the region and the Appellate and Supreme Court Litigation Branch in litigating the case before the Board and obtaining enforcement in the D.C. Circuit.”  

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees, employers, and unions from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions.  The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.