HTH Corporation, Pacific Beach Corporation, and Koa Management LLC, a Single Employer, d/b/a Pacific

National Labor Relations Board - Board Decisions

Dec 31, 2011

357 N.L.R.B. 2209 (N.L.R.B. 2011)

HTH CORP.
357 NLRB No. 177
2209
HTH Corporation, Pacific Beach Corporation and
Koa Management, LLC, a single employer, d/b/a
Pacific Beach Hotel and International Long-
shore and Warehouse Union, Local 142

HTH Corporation d/b/a Pacific Beach Hotel and In-
ternational Longshore and Warehouse Union,
Local 142

Koa Management, LLC d/b/a Pacific Beach Hotel and
International Longshore and Warehouse Union,
Local 142

Pacific Beach Corporation d/b/a Pacific Beach Hotel
and International Longshore and Warehouse
Union, Local 142. Cases 37–CA–007311, 37–
CA–007334, 37–CA–007422, 37–CA–007448, 37–
CA–007458, 37–CA–007470, 37–CA–007472, 37–
CA–007473, 37–CA–007476, 37–CA–007478, 37–
CA–007482, 37–CA–007484, 37–CA–007488, 37–
CA–007537, 37–CA–007550, and 37–CA–007587
December 31, 2011
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On June 14, 2011, the National Labor Relations Board
issued a Decision and Order in this proceeding,1 finding
that the Respondents committed numerous violations of
Section 8(a)(1), (3), and (5) of the Act. One of these
findings was that the Respondents violated Section
8(a)(5) and (1) by unilaterally closing the Shogun Res-
taurant at the Pacific Beach Hotel and laying off the res-
taurant employees. The Board severed and remanded the
issue of whether a remedy was appropriate for the unilat-
eral closing and layoffs of the Shogun employees.
On October 14, 2011, Administrative Law Judge Mary
Miller Cracraft2 issued the attached supplemental deci-
sion. The Charging Party filed exceptions, a supporting
brief, and a reply brief. The Respondents filed an an-
swering brief.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions.3

1 356 NLRB 1397.
2 Administrative Law Judge James M. Kennedy, who heard and is-
sued a decision in the underlying case, retired prior to the Board’s
remand.
3 Member Hayes adheres to his position in the underlying decision
that the Board should dismiss the alleged 8(a)(5) and (1) violation
premised on the closure of the Shogun Restaurant “[b]ecause the Gen-
eral Counsel did not include this charge in the complaint, and because
he affirmatively stated at the hearing that he was not seeking a remedy
for . . . [the Shogun Restaurant] employees.” See HTH Corp., 356
ORDER
IT IS ORDERED that no additional remedy is warranted
in this proceeding.
SUPPLEMENTAL DECISION ON REMAND
In HTH Corp., 356 NLRB 1397 (2011), the Board remanded
the issue of whether a make-whole remedy is appropriate for
“Respondents’ unilateral closure of the Shogun Restaurant and
the layoff of the employees. . . .”1 Having fully considered the
entire record as a whole, as well as the parties’ briefs, I find that
a make-whole remedy is not warranted under the circumstances
of this case.2
On September 7, 2011, all parties filed briefs regarding the
necessity for opening the record to address the issue remanded
by the Board. I find that it is unnecessary to reopen the record
because no additional facts need be elicited in order to decide
the issue on remand.
Initially, I note that the amended consolidated complaint, as
conformed, does not allege unilateral closure of Shogun Res-
taurant nor does it allege unlawful layoff of the Shogun Restau-
rant employees. Moreover, no underlying unfair labor practice
charge was filed alleging failure to give the Union notice and
an opportunity to bargain about the decision to close the restau-
rant.3 At the conclusion of the underlying trial, counsel for the
Acting General Counsel stated that there was no allegation that
the Shogun employees were entitled to a remedy. Thus, on the
final day of hearing, counsel stated:

MS. YASHIKI: With regard to Respondent’s Exhibit 18,
Counsel for the General Counsel would like to state for the
record that the Respondent’s Exhibit 18 represents those
individuals we believe are entitled to some form of remedy
because they were not re-hired, with the exception of indi-
viduals Number 23 through 32 on this list.
JUDGE KENNEDY: That is because?
MS. YASHIKI: And that is because we did not allege
that the Shogun employees were entitled to remedy. Num-
ber 33—although Number 33 is listed as a Shogun Kitchen
Department employee, his position is as a steward. And it
is our understanding that Mr. Danilo Cortez, D-A-N-I-L-
O, C-O-R-T-E-Z, is more akin to a steward rather than as-
signed to the Shogun Restaurant; and therefore, we believe
that Mr. Cortez is entitled to remedy. And that’s the reason
why we are representing that numbers 23 -- individuals
numbered 23 through 32 on this list are not entitled to
remedy.
JUDGE KENNEDY: I see. All right.

NLRB 1397, 1401 fn. 17 (2011). For these reasons, Member Hayes
concurs with his colleagues that no additional remedy is warranted.
1 356 NLRB 1397, 1400–1401.
2 The underlying case was heard by Administrative Law Judge
James M. Kennedy. At the time of this remand, Judge Kennedy had
retired. By a correction dated July 11, 2011, the Board remanded this
issue to the Chief Administrative Law Judge who designated me to
decide the issue on remand.
3 A charge filed alleging failure to bargain over the effects of the de-
cision to close the restaurant was withdrawn.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2210
The record reflects that these statements were made in the
presence of Union Counsel Danny J. Vasconcellos, who repre-
sented the Union throughout these proceedings. Vasconcellos
made no statement at all, either in agreement or disagreement,
regarding counsel for the Acting General Counsel’s statement
that no remedy was sought for individuals affected by closure
of the Shogun Restaurant. Further, at no time during the hear-
ing did the Union assert that a remedy was requested for clo-
sure of the Shogun Restaurant.
In his decision, issued September 30, 2009, Judge Kennedy
found that

On December 1, 2007, Respondents unilaterally and without
bargaining with the Union closed the Shogun Restaurant and
released an undetermined number of employees who worked
in that restaurant, in violation of Section 8(a)(5) and (1) of the
Act.4

Judge Kennedy did not provide a remedy for this finding of
unilateral closure. No party filed exceptions to this conclusion
of law. Moreover, in its brief on cross-exceptions to the ALJ
Decision, counsel for the Acting General Counsel did not seek
a remedy for closure of the Shogun Restaurant. Because no
remedy was provided in Judge Kennedy’s decision, it was un-
necessary for Respondents to except to the conclusion of law.
Nevertheless, the Union excepted to lack of a remedy for the
finding that Respondents unilaterally closed the Shogun Res-
taurant. This was the first indication that anyone sought a rem-
edy for the closure. Thereafter, Respondents noted in their an-
swering brief to the Union’s exception to the Board that they
objected to any remedy for the closure of the Shogun Restau-
rant because on the final day of hearing counsel for the Acting
General Counsel stated she was not seeking a remedy for these
employees.
Thus in the absence of exceptions to Judge Kennedy’s con-
clusion of law (above), the Board entered the following
Amended Conclusion of Law:5

6. By engaging in the following conduct, the Re-
spondents committed unfair labor practices in violation of
Section 8(a)(5) and (1) of the Act. . . . (g) On December 1,
2007, the Respondents unilaterally and without bargaining
with the Union closed the Shogun Restaurant and dis-
charged an undetermined number of employees who
worked in that restaurant.

On remand of the remedy issue, counsel for the Acting Gen-
eral Counsel explained that it did not intend to litigate a viola-
tion concerning the closure of the Shogun Restaurant because
no charge was filed regarding failure to give the Union notice
and an opportunity to bargain over the decision to close the
Shogun Restaurant. Counsel further notes that the decision to
close the restaurant was not alleged in the amended consolidat-
ed complaint as a mandatory subject of bargaining. Due to the-
se circumstances, at the end of the hearing counsel stated that
there was no allegation that the Shogun employees were enti-
tled to a remedy. Finally, counsel explains that the closure of

4 356 NLRB at 37, Conclusion of Law 15.
5 356 NLRB at 5.
the Shogun Restaurant was covered in testimony at the hearing
only to the extent that it demonstrated that Respondents contin-
ued to be the employer of the employees even while PBH Man-
agement, LLC managed the hotel. My review of the pleadings
and transcript indicates they are consistent with these asser-
tions.
Respondents note on remand that the complaint did not al-
lege any unfair labor practices regarding the former Shogun
employees and the Union did not make a request for remedies
for the Shogun employees until after the administrative law
judge issued his decision and in spite of the fact that the Union
did not object to counsel for the Acting General Counsel’s dis-
claimer of remedies at the hearing or in its posthearing brief to
the judge. Relying on Sumo Airlines, 317 NLRB 383 (1995),
Respondents argue that a remedy is not permissible under prin-
ciples of due process because no notice was given: not only did
the complaint not allege a violation but additionally the Acting
General Counsel never argued such a violation. In fact, Re-
spondents argue, because the Acting General Counsel dis-
claimed any remedy, imposition of a remedy is precluded. Re-
spondents rely on Holder Construction Co., 327 NLRB 326,
326 fn. 1 (1998) (Board declined to exercise its broad remedial
authority to find remedy where General Counsel affirmatively
disclaimed any intent to seek reinstatement for discriminatee,
whose counsel remained silent regarding disclaimer at hearing
and did not except to judge’s failure to include a reinstatement
remedy).
The Union characterizes the Board’s conclusion of law as the
“law of the case.” Thus, the Union argues that the starting point
for analysis on remand is that Respondents violated the Act by
unilaterally closing the Shogun Restaurant and discharging
employees who worked in the restaurant. The lack of a com-
plaint allegation and disavowal of a remedy are therefore irrel-
evant at this point. That being the case, the Union argues that a
remedy is warranted. The Union distinguishes Holder Con-
struction Co., 327 NLRB 304 (1998), asserting that a remedy is
warranted because, unlike the discriminatees, it in fact filed
exceptions to the failure to award a remedy.
However, in my view Holder is not distinguishable. First, in
Holder, counsel for the General Counsel affirmatively dis-
claimed any intent to seek the typical reinstatement remedy for
the two discriminatees. Neither discriminatee nor their counsel
disagreed. The same is true here. Counsel for the Acting Gen-
eral Counsel affirmatively disclaimed any remedy for the Sho-
gun Restaurant employees. Counsel for the Union did not disa-
gree. Second, in Holder, no exceptions were filed to the judge’s
finding that two employees were discharged for their protected,
concerted activity. The same is true here. No party excepted to
the judge’s unfair labor practice finding. I find that because no
remedy was set out in the underlying decision, it is reasonable
that Respondents did not file an exception to Judge Kennedy’s
conclusion of law. Finally, in Holder, the General Counsel,
after affirmatively disclaiming a remedy during the trial, took
exception to lack of a reinstatement remedy. Here, the Union,
after acquiescing to the disclaimer of a remedy at hearing, took
exception to the Board for lack of a remedy for closure.
In my view, there is no discernable difference between the
General Counsel taking exception to lack of a remedy in Hold-
HTH CORP. 2211
er and the Union taking exception to lack of a remedy here. In
either case, the appearance is that a party who agreed at hearing
that a remedy was not being sought, simply changed its mind
before the reviewing forum and requested a second bite of the
litigation apple. However, it is clear that the parties knowingly
proceeded throughout a lengthy trial without any allegation
regarding the Shogun Restaurant closure. There was no viable
unfair labor practice charge regarding the closure and at no
time during the hearing did the Union urge a remedy for the
closure. It was purposefully not litigated. The Board’s broad
remedial authority should not, in my view, extend in these cir-
cumstances. Thus, based upon Holder, I find that the circum-
stances do not warrant the exercise of the Board’s broad reme-
dial authority.
CONCLUSION OF LAW6
A make-whole remedy is inappropriate under the particular
circumstances here.

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings and conclusions shall, as provided
in Sec. 102.48 of the Rules, be adopted by the Board and all objections
to them shall be deemed waived for all purposes.