Space Needle, LLC v. National Labor Relations Board

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

SPACE NEEDLE, LLC, No. 15-70520

Petitioner, NLRB Nos. 19-CA-098988
19-CA-107024
v. 19-CA-098936
19-CA-098908
NATIONAL LABOR RELATIONS 19-CA-108459
BOARD, National Labor Relations Board

Respondent. MEMORANDUM*

NATIONAL LABOR RELATIONS No. 15-70630
BOARD,
NLRB Nos. 19-CA-098988
Petitioner, 19-CA-107024
19-CA-098936
v. 19-CA-098908
19-CA-108459
SPACE NEEDLE, LLC,

Respondent.

On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board

Argued and Submitted June 8, 2017
Seattle, Washington

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

Space Needle, LLC petitions for review, and the National Labor Relations

Board (the “Board”) cross-petitions for enforcement, of the Board’s order finding

that Space Needle violated Sections 8(a)(3) and (1) of the National Labor Relations

Act, 29 U.S.C. § 158(a)(3) and (1), by failing to recall servers Julia Dube and

Tracey McCauley from layoff. We have jurisdiction under 29 U.S.C. § 160(e) and

(f), and we affirm.

We are required to uphold the Board’s findings of fact if they are supported

by substantial evidence. E. Bay Auto. Council v. N.L.R.B., 483 F.3d 628, 633 (9th

Cir. 2007). “[I]nferences drawn by the Board should not be replaced by our own,

if the record supplies a reasonable basis to support those drawn by the Board.”

N.L.R.B. v. Winkel Motors, Inc., 443 F.2d 38, 40 (9th Cir. 1971) (per curiam).

The standard of review drives our decision here. Based on the ALJ’s

credibility determinations, the temporal sequence of events, the conduct of the

parties, and the corroborating testimony, substantial evidence supported the ALJ’s

conclusions that the Board made its prima facie showing that Dube’s protected

activity was a substantial or motivating factor in the failure to recall Dube and

McCauley and that Space Needle failed to demonstrate that it would have taken the

same action regardless of Dube’s union activity. Frankl ex rel. N.L.R.B. v. HTH

Corp., 693 F.3d 1051, 1062 (9th Cir. 2012).

2
Accordingly, Space Needle’s petition for review is DENIED and the

Board’s cross-application for enforcement is GRANTED with respect to the

matters addressed in this disposition.1

Each party shall pay its own costs on appeal.

1
On June 6, 2017, we granted the parties’ joint motion to dismiss all other
issues raised in this appeal.