                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            DEC 28 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITE HERE! LOCAL 878, AFL-CIO,                  No.   15-71924

              Petitioner,                        NLRB No. 19-CA-032148

 v.
                                                 MEMORANDUM*
NATIONAL LABOR RELATIONS
BOARD,

              Respondent.



REMINGTON LODGING &                              No.   15-72563
HOSPITALITY, LLC, DBA Sheraton
Anchorage,                                       NLRB No. 19-CA-032148

              Petitioner,

 v.

NATIONAL LABOR RELATIONS
BOARD,

              Respondent.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
NATIONAL LABOR RELATIONS                        No.   15-73259
BOARD,
                                                NLRB No. 19-CA-032148
             Petitioner,

 v.

REMINGTON LODGING &
HOSPITALITY, LLC, DBA Sheraton
Anchorage,

             Respondent.


                     On Petition for Review of an Order of the
                         National Labor Relations Board

                           Submitted December 4, 2017**
                               Seattle, Washington

Before: HAWKINS and CHRISTEN, Circuit Judges, and KOBAYASHI,***
District Judge.

      The National Labor Relations Board applies for enforcement of its order

finding that Remington Lodging and Hospitality, LLC, committed sundry unfair

labor practices. Remington and Unite Here! Local 878 (the Union) petition for

review of the Board’s order. We have jurisdiction under 29 U.S.C. § 160(e) and



      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
                                         2
(f). We deny the petitions for review and grant the Board’s application for

enforcement.

      We enforce the Board’s order if the Board correctly applied the law and its

factual findings are supported by substantial evidence. Local Joint Exec. Bd. of

Las Vegas v. NLRB, 515 F.3d 942, 945 (9th Cir. 2008). We defer to the Board’s

interpretation of the National Labor Relations Act (NLRA) if it is “rational and

consistent with the statute,” and we may not displace the Board’s choice between

two fairly conflicting views of the facts. Id. (internal quotation marks omitted).

We enforce the unchallenged portions of the Board’s order. See Diamond Walnut

Growers, Inc. v. NLRB, 53 F.3d 1085, 1087 (9th Cir. 1995).

      1.     Substantial evidence supports the Board’s determination that the

Federal Mediation and Conciliation Service (FMCS) did not receive timely notice

of the parties’ dispute before Remington unilaterally implemented changes in

October 2009. Although Remington could have relied on the Union’s notice to

FMCS, see NLRB v. Mar-Len Cabinets, Inc., 659 F.2d 995, 998 (9th Cir. 1981)

(per curiam), the record does not indicate when such notice was filed, and

Remington’s inference-based arguments do not establish otherwise.

      2.     Substantial evidence supports the Board’s finding that the parties

broke their impasse in March 2010, and the Board did not misapply the law when it


                                          3
reached that conclusion. The Board “evaluate[s] impasse issues with a special

expertise gained by long experience.” Walnut Creek Honda Assocs. 2, Inc. v.

NLRB, 89 F.3d 645, 649 (9th Cir. 1996). Here, the Board found that the parties’

March 2010 proposals created a possibility of fruitful future discussions in part

because each party came to the table with a proposal on health care—the critical

issue—that differed meaningfully from its position in the fall of 2009. Remington

presents an alternative view of the facts, but we defer to the Board in light of its

special expertise in this arena. See id.

      The Board did not misapply the law by citing to Whitesell Corp., 352

N.L.R.B. 1196 (2008), and CJC Holdings, Inc., 320 N.L.R.B. 1041 (1996). The

Board correctly considered whether the parties’ March 2010 proposals were

“significant enough to warrant further negotiation,” and its citation to two cases

about when impasse is reached (rather than broken) does not undercut its analysis.

Finally, Remington’s suggestion that the Union avoided bargaining in March 2010

is unavailing. The Board found that the Union did not intend to end negotiations in

March 2010, and substantial evidence supports that finding despite Remington’s

contrary interpretation of the facts.

      3.     The Board’s conclusion that the areas under the porte cocheres at the

hotel were “non-work areas” based on Santa Fe Hotel, Inc., 331 N.L.R.B. 723


                                           4
(2000), is rational and consistent with the NLRA. The Board is the entity tasked

with striking an appropriate balance between the dictates of the NLRA and the

unique characteristic of specific industries. See Beth Israel Hosp. v. NLRB, 437

U.S. 483, 500–01 (1978). We cannot say the balance it struck here was

impermissible.

      4.     The conclusive presumption from SFO Good–Nite Inn, 357 N.LR.B.

79 (2011), is also rational and consistent with the NLRA. Although a conclusive

presumption may have a dramatic effect on a given case, it protects employee free

choice by serving a deterrent purpose and recognizing the inherent unreliability of

after-the-fact employee testimony. See id. at 82–83.

      5.     Section 10(e) of the NLRA precludes us from reviewing the Union’s

sole argument. See 29 U.S.C. § 160(e). When, as here, the Board sua sponte

amends an ALJ’s recommended remedy, the party seeking judicial review must

move for reconsideration before the Board to preserve the issue. NLRB v. Legacy

Health Sys., 662 F.3d 1124, 1127 (9th Cir. 2011). The Union did not move for

reconsideration. And unlike the party in NLRB v. Best Prods. Co., 765 F.2d 903,

910 (9th Cir. 1985), the Union never put the merits of its argument squarely before

the Board even though it could have. See 29 C.F.R. § 102.48(c) (permitting

motions for reconsideration). Section 10(e) bars review.


                                          5
     The petitions for review are DENIED and the Board’s application for

enforcement is GRANTED.




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