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Hooks v. Remington Lodging & Hospitality, LLC

United States District Court, D. Alaska

March 18, 2014

RONALD K. HOOKS, REGIONAL DIRECTOR NATIONAL LABOR RELATIONS BOARD REGION 19, Petitioner,
v.
REMINGTON LODGING & HOSPITALITY, LLC, d/b/a THE SHERATON ANCHORAGE, Respondent

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[Copyrighted Material Omitted]

Page 1180

For Ronald K. Hooks, Regional Director of the Nineteenth Region of the National Labor Relations Board, for and on behalf of the, National Labor Relations Board, Petitioners: Anne P. Pomerantz, Rachel Cherem, LEAD ATTORNEYS, National Labor Relations Board, Seattle, WA; Edward Bryan Wilson, LEAD ATTORNEY, U.S. Attorney's Office (Anch), Anchorage, AK.

For Remington Lodging and Hospitality, LLC, doing business as The Sheraton Anchorage, Respondent: Karl Montague Terrell, LEAD ATTORNEY, Stokes Roberts & Wagner, Atlanta, GA.

OPINION

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DECISION AND ORDER ON PETITION FOR INJUNCTIVE RELIEF AND MOTION TO DISMISS

Sharon L. Gleason, United States District Judge.

Ronald K. Hooks is Regional Director of the Nineteenth Region of the National Labor Relations Board (the " Board" or " NLRB" ). Before the Court at Docket 1 is the Petition for Injunctive Relief Pursuant to § 10(j)[1] of the National Labor Relations Act (the " NLRA," ),[2] filed by Petitioner Regional Director Hooks for and on behalf of the Board. Respondent Remington Lodging & Hospitality, LLC d/b/a The Sheraton Anchorage (" Remington" ), which manages the Sheraton Hotel in Anchorage, Alaska (the " Hotel" ), opposed the petition, and Petitioner replied.[3]

Also before the Court at Docket 18 is Remington's motion to dismiss. Petitioner opposed the motion and Remington replied.[4] Upon the Court's request, the parties filed supplemental briefing on limited issues.[5]

The Court heard oral argument on both the petition and the motion on January 10, 2014.[6] For the following reasons, the Court will deny the motion to dismiss and will grant the petition for injunctive relief.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of allegations by UNITE-HERE, Local 878, AFL-CIO (the " Union" ), the collective bargaining representative of most unionized employees at the Hotel, that Remington committed numerous unfair labor practices (" ULPs" ) in violation of the NLRA.[7]

This is the second time in which the Regional Director, on behalf of the Board, has requested injunctive relief from the District Court for the District of Alaska related to alleged ULPs by Remington. The Court summarizes the recent history of the dispute:

o Leading up to May 28, 2010: Remington was engaged in labor disputes with the Union in anticipation of the expiration of their collective bargaining agreement, which was set to expire

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in early 2009.[8] The Union filed multiple charges alleging ULPs, which were consolidated on May 28, 2010 into a complaint to initiate the administrative proceedings that the parties refer to as Remington I.[9] The Union filed additional charges of ULPs, which were later consolidated into amended complaints.[10] (The ULPs and complaints underlying Remington I are not at issue in this litigation.)
o June 18, 2010: President Obama designated Lafe Solomon as Acting General Counsel for the NLRB, effective June 21, 2010. The President nominated Solomon to permanently fill the position in January 2011 and May 2012, but Solomon was never confirmed. Solomon served as Acting General Counsel until November 2013.[11]
o August 25, 2011: After an evidentiary hearing, Administrative Law Judge (ALJ) Gregory Meyerson issued a decision in Remington I (the " ALJ Meyerson Decision" ), concluding that Remington had committed various ULPs.[12]
o October 11, 2011: Throughout the administrative proceedings in Remington I, the labor disputes between Remington and the Union continued, resulting in the Union filing additional charges of ULPs.[13] On October 11, 2011, Acting General Counsel Solomon, on behalf of the Board, by former Regional Director Richard L. Ahearn, issued an Order Consolidating Cases and Consolidated Complaint consolidating the ULP charges filed in September 2010 and January 2011, which constitutes the original complaint in the administrative proceedings that the parties refer to as Remington II, the proceedings at issue here[14] This complaint would later be revised on January 6, 2012 (the first amended complaint),[15] February 15, 2012 (the second amended complaint),[16] and September 17, 2012 (the third amended complaint, which was orally amended on the record before ALJ McCarrick, discussed infra ).[17] Remington did not challenge Solomon's designation as Acting General Counsel nor his ability to issue complaints

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during the Remington II administrative proceedings.[18]
o December 9, 2011: Former Regional Director Ahearn, on behalf of the Board, filed a petition in the District Court for the District of Alaska seeking injunctive relief pursuant to § 10(j) related to the ULP charges underlying Remington I, as well as four of the ULP charges underlying Remington II.[19] The case was assigned to Judge Timothy M. Burgess (Case No. 3:11-cv-00240-TMB).[20]
o February 2, 2012: Judge Burgess " issued a temporary injunction under Sec. 10(j) . . . ordering [Remington] to recognize and bargain with the Union; resume contract negotiations, and honor all tentative agreements reached by the parties; at the Union's request, rescind unilateral changes made in its employees' terms and conditions of employment; and post the order and read it aloud to employees" (the " Judge Burgess Injunction" ).[21]
o April 24, 2013: The Board issued a Decision and Order adopting, with minor modifications, ALJ Meyerson's findings in Remington I.[22] The Board concluded that Remington had committed numerous ULPs, including that it violated the duty to bargain in good faith and violated NLRA sections 8(a)(1), (3), (4), and (5). The Board's decision is currently pending review by a United States Court of Appeals.[23]
o June 6, 2013: After an evidentiary hearing conducted over nineteen days between October 16 and December 14, 2012, ALJ John J. McCarrick issued a decision in Remington II (the " ALJ McCarrick Decision" ), describing the proceedings as " yet a further chapter in [Remington's] unlawful refusal to recognize and bargain with the Union and its continuing efforts to undermine the Union" .[24] ALJ McCarrick concluded that Remington had committed numerous ULPs, including that it:
○ Violated NLRA section 8(a)(1) by maintaining and enforcing various rules in the employee handbook; interrogating employees about union activities; engaging in surveillance of employees' union activities; creating the impression that employees' union activities were under

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surveillance; coercing employees regarding testimony at an NLRB hearing; telling employees to remove union buttons; prohibiting off-duty employees from distributing union literature; and threatening to call the police on employees or have employees arrested because they were engaged in union activity.[25]
○ Violated NLRA section 8(a)(3) by disciplining, changing working hours, or discharging various employees.[26] For example, Remington violated section 8(a)(3) by disciplining and discharging employee Dexter Wray; by reducing the hours of and discharging employee Elda Buezo; and by discharging employee Yanira Medrano. Remington further violated section 8(a)(4) by discharging employees Wray and Medrano because they gave testimony to the Board in connection with ULP proceedings.[27]
○ Violated NLRA section 8(a)(5) by taking various actions unilaterally and without bargaining with the Union.[28] For example, Remington violated section 8(a)(5) by banning Union representatives, including Daniel Esparza, from the Hotel; by unilaterally eliminating employee scheduling preference sheets; by ceasing to assign work by seniority; and by unilaterally changing policies. Remington further violated section 8(a)(5) by refusing to provide the Union with information necessary for and relevant to the Union's performance of its collective bargaining duties.[29]
o July 30, 2013: The Senate confirmed the President's nominees to the Board, such that the Board then had five confirmed members.
o August 9, 2013: Remington filed exceptions to the Board concerning the ALJ McCarrick Decision in Remington II.[30] Remington II is currently pending before the Board.
o September 27, 2013: The five confirmed members of the Board unanimously authorized Acting General Counsel Solomon to institute § 10(j) injunction proceedings in federal district court concerning Remington II.[31]
o November 13, 2013: Regional Director Hooks, for and on behalf of the Board, filed the current § 10(j) petition for injunctive relief.[32]
o December 18, 2013: Remington filed a motion to dismiss the petition.[33] In the motion to dismiss, Remington asserts, for the first time, that the complaints underlying the Remingto ...

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