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

National Labor Relations Board - Administrative Judge Opinions

Oct 14, 2011

37-CA-007311 (N.L.R.B. Oct. 14, 2011)

JD(SF)-41-11
Honolulu, Hawaii
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
HTH CORPORATION, PACIFIC BEACH CORPORATION, and
COA MANAGEMENT, LLC, a SINGLE EMPLOYER, d/b/a
PACIFIC BEACH HOTEL
and Cases 37–CA–7311
37–CA–7334
37–CA–7422
37–CA–7448
37–CA–7458
37–CA–7476
37–CA–7478
37–CA–7482
37–CA–7484
37–CA–7488
37–CA–7537
37–CA–7550
37–CA–7587
HTH CORPORATION d/b/a PACIFIC BEACH HOTEL
and 37–CA–7470
KOA MANAGEMENT, LLC d/b/a PACIFIC BEACH HOTEL
and 37–CA–7472
PACIFIC BEACH CORPORATION d/b/a PACIFIC BEACH HOTEL
and 37–CA–7473
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION,
LOCAL 142
SUPPLEMENTAL DECISION ON REMAND
In HTH Corp., 356 NLRB No. 182 (June 14, 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

1 356 NLRB No. 182, slip opinion at 4-5.
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.
JD(SF)-41-11
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 5
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 Restaurant nor does it allege unlawful layoff of the 10
Shogun Restaurant 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 restaurant.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:15
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 20
individuals 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 25
employees were entitled to remedy. Number 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 assigned to the
Shogun Restaurant; and therefore, we believe that Mr. Cortez is entitled 30
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.35
The record reflects that these statements were made in the presence of Union
Counsel Danny J. Vasconcellos, who represented the Union throughout these
proceedings. Mr. Vasconcellos made no statement at all, either in agreement or
disagreement, regarding counsel for the Acting General Counsel’s statement that no 40
remedy was sought for individuals affected by closure of the Shogun Restaurant.
Further, at no time during the hearing did the Union assert that a remedy was requested
for closure of the Shogun Restaurant.
In his decision, issued September 30, 2009, Judge Kennedy found that 45
On December 1, 2007, Respondents unilaterally and without bargaining
with the Union closed the Shogun Restaurant and released an

3 A charge filed alleging failure to bargain over the effects of the decision to close the
restaurant was withdrawn.
JD(SF)-41-11
3
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 5
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 unnecessary for Respondents to except to the
Conclusion of Law. Nevertheless, the Union excepted to lack of a remedy for the finding 10
that Respondents unilaterally closed the Shogun Restaurant. This was the first indication
that anyone sought a remedy for the closure. Thereafter, Respondents noted in their
answering brief to the Union’s exception to the Board that they objected to any remedy
for the closure of the Shogun Restaurant because on the final day of hearing counsel for
the Acting General Counsel stated she was not seeking a remedy for these employees. 15
Thus in the absence of exceptions to Judge Kennedy’s Conclusion of Law
(above), the Board entered the following Amended Conclusion of Law:5
6. By engaging in the following conduct, the Respondents committed 20
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 discharged
an undetermined number of employees who worked in that restaurant.
25
On remand of the remedy issue, counsel for the Acting General Counsel
explained that it did not intend to litigate a violation 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 30
consolidated complaint as a mandatory subject of bargaining. Due to these
circumstances, at the end of the hearing counsel stated that there was no allegation that
the Shogun employees were entitled to a remedy. Finally, counsel explains that the
closure of the Shogun Restaurant was covered in testimony at the hearing only to the
extent that it demonstrated that Respondents continued to be the employer of the 35
employees even while PBH Management, LLC managed the hotel. My review of the
pleadings and transcript indicates they are consistent with these assertions.
Respondents note on remand that the complaint did not allege any unfair labor
practices regarding the former Shogun employees and the Union did not make a request 40
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 disclaimer of remedies at the hearing or in its posthearing brief to the
judge. Relying on Sumo Container Stations, 317 NLRB 383 (1995), Respondents argue
that a remedy is not permissible under principles of due process because no notice was 45
given: not only did the complaint not allege a violation but additionally the Acting General
Counsel never argued such a violation. In fact, Respondents argue, because the Acting
General Counsel disclaimed any remedy, imposition of a remedy is precluded.

4 356 NLRB at 37, Conclusion of Law 15.
5 356 NLRB at 5.
JD(SF)-41-11
4
Respondents rely on Holder Construction Co., 327 NLRB 326, n. 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 5
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 10
discharging employees who worked in the restaurant. The lack of a complaint allegation
and disavowal of a remedy are therefore irrelevant at this point. That being the case, the
Union argues that a remedy is warranted. The Union distinguishes Holder Construction
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.15
However, in my view Holder is not distinguishable. First, in Holder, counsel for
the General Counsel affirmatively disclaimed 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 General Counsel affirmatively disclaimed 20
any remedy for the Shogun Restaurant employees. Counsel for the Union did not
disagree. 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 did25
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.
30
In my view, there is no discernable difference between the General Counsel
taking exception to lack of a remedy in Holder 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 35
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 circumstances. Thus, based upon Holder, I find that the 40
circumstances do not warrant the exercise of the Board’s broad remedial authority.
JD(SF)-41-11
5
CONCLUSION OF LAW6
A make-whole remedy is inappropriate under the particular circumstances here.
5
Dated: Washington, D.C. October 14, 2011
10
Mary Miller Cracraft
Administrative Law Judge

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.