                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            OCT 23 2019
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITE HERE LOCAL 11,                             No.   18-70144

              Petitioner,                        NLRB Nos.           31-CA-026240
                                                                     31-CA-026418
 v.                                                                  31-CA-026285

NATIONAL LABOR RELATIONS
BOARD,                                           MEMORANDUM*

              Respondent,

SMOKE HOUSE RESTAURANT, INC.,

              Respondent-Intervenor.


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

                     Argued and Submitted February 12, 2019
                            San Francisco, California

Before: SCHROEDER, O’SCANNLAIN, and RAWLINSON, Circuit Judges.

      Unite Here Local 11 (the Union) petitions for review of the ruling of the

National Labor Relations Board (the Board) interpreting a prior remedial order as



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
not requiring Smoke House Restaurant, Inc. (Smoke House) to retroactively restore

the Hotel and Restaurant Employees Welfare Fund (the Fund). We have

jurisdiction under 29 U.S.C. § 160(f). The Board’s interpretation of a remedial

order “enjoys a good deal of discretion.” Virginia Mason Med. Ctr. v. N.L.R.B.,

558 F.3d 891, 894 (9th Cir. 2009) (quoting N.L.R.B. v. Nat’l Med. Hosp. of

Compton, 907 F.2d 905, 909 (9th Cir. 1990)). Abuse of discretion occurs when an

agency decision is illogical or irrational. See Wilson v. Comm’r, 705 F.3d 980, 993

(9th Cir. 2013); see also Singh v. I.N.S., 213 F.3d 1050, 1052 (9th Cir. 2000).

      The Union argues that the Board’s interpretation of its 2006 remedial order

(2006 Order) is illogical because the Board did not interpret the order as requiring

retroactive payments to the Fund. The Union takes issue with the Board’s

interpretation of the following language from the 2006 remedial order (2006

Order) requiring Smokehouse to:

      retroactively restore the terms and conditions of employment of the
      employees in the unit as established by the collective-bargaining
      agreement between [Smokehouse] and the Union and make employees
      whole for any losses they incurred . . .

JLL Restaurant, Inc. dba Smokehouse Restaurant, 347 N.L.R.B. 192, 209 (2006).

      The Board declined to interpret this language as mandating restoration to the

Fund because the 2006 Order did not: (1) expressly require restoration to the



                                          2
Fund, or (2) cite to Merryweather Optical Co., 240 N.L.R.B. 1213, 1216 n.7

(1979).

       Because the remedial order in nearly every case identified by the parties

either expressly required fund restoration or cited to Merryweather Optical and

because pursuant to the remedial order these employees have been reimbursed for

their healthcare costs, the Board’s decision was a rational one. See Virginia Mason

Med. Ctr., 558 F.3d at 894; see also Nat’l Med. Hosp. of Compton, 907 F.2d at

908.

       PETITION DENIED.




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