UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KAVA HOLDINGS, LLC, DBA No. 21-70225 Hotel Bel-Air, NLRB No. 31- Petitioner, CA-074675 v. NATIONAL LABOR RELATIONS OPINION BOARD,

Respondent, UNITE HERE LOCAL 11,

Respondent-Intervenor.

NATIONAL LABOR RELATIONS No. 21-70638 BOARD, 21-71334

Petitioner, NLRB No. 31- CA-074675 v. KAVA HOLDINGS, LLC, DBA Hotel Bel-Air,

Respondent. 2 KAVA HOLDINGS, LLC V. NLRB

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

Argued and Submitted October 20, 2022 Seattle, Washington

October 18, 2023

Before: Ryan D. Nelson, Danielle J. Forrest, and Jennifer Sung, Circuit Judges.

Opinion by Judge Sung

SUMMARY *

Labor Law

The panel denied in part and dismissed in part Kava Holdings, LLC’s petition for review and granted the National Labor Relations Board’s cross-petition for enforcement of its order, which found that Kava committed unfair labor practices in violation of Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act. Intervenor UNITE HERE Local (the Union) was the exclusive collective bargaining representative for a unit of employees whom Kava employed at the Hotel Bel- Air. When the Hotel reopened after extensive renovations, Kava refused to rehire 152 employees even though they were * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. KAVA HOLDINGS, LLC V. NLRB 3

qualified for the open positions and refused to recognize the Union as the unit employees’ bargaining representative. The panel held that substantial evidence supported the Board’s finding that Kava committed an unfair labor practice by refusing to rehire union-affiliated former employees so that Kava could avoid its statutory duty to bargain with the Union. Substantial evidence supported the Board’s finding of anti-union animus where the Board properly drew an inference of animus from Kava’s prior unlawful conduct, the Board reasonably inferred animus from the testimony of a Kava human resources manager, and there was more than substantial evidence of Kava’s generalized animus against former employees based on their union affiliation. The panel rejected Kava’s argument that it affirmatively proved that it refused to rehire the former employees for legitimate business reasons. The panel held that substantial evidence supported the Board’s finding that Kava committed an unfair labor practice by refusing to recognize and bargain with the Union as it reopened the Hotel, and by unilaterally changing the bargaining unit’s established, pre-closure terms and conditions of employment. 4 KAVA HOLDINGS, LLC V. NLRB

COUNSEL Karl M. Terrell (argued) and Arch Y. Stokes, Stokes Wagner ALC, Atlanta, Georgia; Diana Lerma, Stokes Wagner LLC, Sherman Oaks, California; for Petitioner. Michael R. Hickson (argued), Senior Attorney; Usha Dheenan, Supervisory Attorney; Ruth E. Burdick, Deputy Associate General Counsel; Peter S. Ohr, Deputy General Counsel; Jennifer A. Abruzzo, General Counsel; David Habenstreit, Assistant General Counsel; National Labor Relations Board, Washington, D.C.; for Respondent. Kirill Penteshin (argued) and Henry M. Willis, Schwartz Steinsapir Dohrmann & Sommers LLP, Los Angeles, California; Jeremy Blasi and Alyssa Peterson, Unite Here Local 11, Los Angeles, California; for Respondent- Intervenor. KAVA HOLDINGS, LLC V. NLRB 5

OPINION SUN