                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       APR 15 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

UNITE HERE! LOCAL 5,                            No.    18-70029

                Petitioner,                     NLRB Nos. 20-CB-163657
                                                          20-CB-166055
 v.                                                       20-CB-171212

NATIONAL LABOR RELATIONS
BOARD,                                          MEMORANDUM*

                Respondent.


NATIONAL LABOR RELATIONS                        No.    18-70324
BOARD,
                                                NLRB Nos. 20-CB-163657
                Petitioner,                               20-CB-166055
                                                          20-CB-171212
 v.

UNITE HERE! LOCAL 5,

                Respondent.

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

                      Argued and Submitted March 15, 2019
                           San Francisco, California



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: WALLACE, SILER,** and McKEOWN, Circuit Judges.

      Unite Here! Local 5 (the “Union”) appeals the National Labor Relations

Board’s (“NLRB”) decision finding that the Union violated the National Labor

Relations Act (“NLRA”). In affirming two Administrative Law Judges’ (“ALJ”)

decisions, the NLRB found that the Union’s picketing activities at the Aston Waikiki

Beach Hotel (the “Aston” or the “hotel”) blocked or impeded hotel employees, or

others while employees were present, from entering or exiting the hotel, in violation

of the NLRA. We deny the Union’s petition and affirm the NLRB’s order.

       The Union sponsored pickets near the hotel numbering 12-200 individuals

on a regular basis for several months, which spanned the hotel’s entrance at its porte

cochere—a one-way, U-shaped covered driveway. Picketers would march in an

oblong circle on the sidewalk where it intersected the porte cochere. When a vehicle

approached, it was stopped to allow the picketers to continue marching; for smaller

picket lines, the delay was generally for two more full rotations of the line, and for

one rotation during larger picket lines, to draw attention to the picketing. After 1-4

minutes, the picketers would stop on either side of the driveway to allow the

vehicle(s) to pass; this timing, however, was discretionary. In addition to the picket

line delaying cars driven by the hotel’s valet drivers, Aston employees at the nearby



      **
            The Honorable Eugene E. Siler, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

                                          2                                    18-70029
valet stand were also able to observe the picket line stopping cars driven by taxi

drivers or guests.

      The Aston’s operators filed charges against the Union, prompting the NLRB’s

General Counsel to issue two complaints, alleging violations of Section 8(b)(1)(A)

of the NLRA for blocking or impeding hotel employees, or others while employees

were present, from entering or exiting the hotel. After separate hearings, both ALJs

found that the Union had violated the NLRA as alleged.           On review of the

consolidated cases, the NLRB affirmed the ALJ decisions and adopted the

recommended Orders with modifications.

      The NLRB bears “primary responsibility for developing and applying national

labor policy.” NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 (1990);

see also Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145, 1150-51 (9th Cir. 2003)

(citation omitted). “So long as the Board’s interpretation [of the Act in a case] is

‘rational and consistent’ with the statute, its rulings are afforded ‘considerable

deference.’” Glendale Assocs., 347 F.3d at 1151 (citation omitted). The NLRB’s

findings of fact are conclusive if they are supported by substantial evidence on the

record as a whole. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S.

474, 488 (1951). As to a factual finding, the “court may not ‘displace the Board’s

choice between two fairly conflicting views, even though the court would justifiably

have made a different choice had the matter been before it de novo.’” United Nurses


                                         3                                   18-70029
Ass’ns of Cal. v. NLRB, 871 F.3d 767, 777 (9th Cir. 2017) (quoting Universal

Camera, 340 U.S. at 488). Given the NLRB’s “special expertise” in the field of

labor relations, we “defer to the reasonable derivative inferences drawn by the Board

from credited evidence.” NLRB v. Carson Cable TV, 795 F.2d 879, 881 (9th Cir.

1986) (citation omitted).

      Section 7 of the NLRA grants employees “the right to self-organization, to

form, join, or assist labor organizations, to bargain collectively through

representatives of their own choosing, and to engage in other concerted activities for

the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C.

§ 157. It also guarantees employees “the right to refrain from any or all of such

activities.” Id. Section 8(b)(1)(A) makes it “an unfair labor practice for a labor

organization or its agents . . . to restrain or coerce . . . employees in the exercise of

the rights guaranteed in section [7 of the Act].” 29 U.S.C. § 158(b)(1)(A); see also

Int’l Longshoremen’s and Warehousemen’s Union, C.I.O. (Sunset Line and Twine

Co.), 79 NLRB 1487, 1504 (1948). Determining the existence of a restraint or

coercion turns on “whether the misconduct is such that, under the circumstances

existing, it may reasonably tend to coerce or intimidate employees in the exercise of

rights protected under the Act.” NLRB v. Serv. Emps. Int’l Union, Local 254, AFL-

CIO, 535 F.2d 1335, 1337-38 (1st Cir. 1976) (internal quotation marks and citations

omitted); see also Plumbers Local 38 (Bechtel Corp.), 306 NLRB 511, 518 (1992).


                                           4                                     18-70029
      Substantial evidence supports the NLRB’s finding that the Union had

“deliberately, repeatedly, and persistently blocked numerous vehicles” driven by

employees for 1-4 minutes at a time, and “engaged in similar conduct” by

“temporarily blocking numerous vehicles in the presence or view of the hotel valet

and bell employees.” The NLRB—in adopting the underlying ALJ conclusions—

rejected the Union’s argument that its conduct was “brief and merely

inconvenienced vehicles” and was “minor or de minimis,” and distinguished the

Union’s actions from cases that involved only a few affected employees during

months of picketing. Short delays, occurring regularly over the course of months

and affecting workers during their performance of work duties, as well as others in

the presence of employees, is sufficient to reasonably find that such actions violated

the NLRA. The explanations of the NLRB’s legal position, through the adoption of

the ALJs’ conclusions, were therefore not “inadequate, irrational or arbitrary.” See

Local Joint Exec. Bd. of Las Vegas v. NLRB, 309 F.3d 578, 583 (9th Cir. 2002)

(quoting Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 364 (1998)).

      PETITION DENIED; ORDER ENFORCED.




                                          5                                   18-70029
