Frankl v. Hth Corp , 650 F.3d 1334 ( 2011 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JOSEPH F. FRANKL,* Regional                 
    Director of Region 20 of the
    National Labor Relations Board,
    for and on behalf of the National
    No. 10-15984
    Labor Relations Board,
    Petitioner-Appellee,                     D.C. No.
    v.                             1:10-cv-00014-
    JMS-LEK
    HTH CORPORATION; KOA
    OPINION
    MANAGEMENT, LLC, DBA Pacific
    Beach Hotel; PACIFIC BEACH
    CORPORATION,
    Respondents-Appellants.
    
    Appeal from the United States District Court
    for the District of Hawaii
    J. Michael Seabright, District Judge, Presiding
    Argued and Submitted
    February 15, 2011—Honolulu, Hawaii
    Filed July 13, 2011
    Before: A. Wallace Tashima, William A. Fletcher, and
    Marsha S. Berzon, Circuit Judges.
    Opinion by Judge Berzon
    *Joseph F. Frankl is substituted for his predecessor Joseph P. Norelli,
    as Regional Director of Region 20 of the National Labor Relations Board,
    pursuant to Fed. R. App. 43(c)(2).
    9877
    9882    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    COUNSEL
    For petitioner-appellee Joseph F. Frankl, Regional Director of
    Region 20 of the National Labor Relations Board, for and on
    behalf of the National Labor Relations Board: Judith Ilene
    Katz, Margaret E. Luke (argued), and Steven Lewis Sokolow,
    National Labor Relations Board, Washington, D.C.; Jill H.
    Coffman and Olivia Garcia, National Labor Relations Board
    Region 20, San Francisco, California; Thomas W. Cestare,
    Trent Kiyoshi Kakuda, and Dale Kanayo Yashiki, National
    Labor Relations Board Sub-Region 37, Honolulu, Hawaii.
    For respondents-appellants HTH Corporation, Pacific Beach
    Corporation, and Koa Management, LLC: Wesley Fujimoto
    (argued) and Ryan Sanada, Imanaka Kudo & Fujimoto LLC,
    Honolulu, Hawaii.
    OPINION
    BERZON, Circuit Judge:
    This appeal of an injunction issued pursuant to § 10(j), 
    29 U.S.C. § 160
    (j), of the National Labor Relations Act, 
    29 U.S.C. §§ 151
     et seq., (the “NLRA” or the “Act”), raises two
    questions, one difficult, the other relatively straightforward.
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT           9883
    The straightforward question is whether the injunction
    should be affirmed on its merits. We have little difficulty con-
    curring in the District Court’s assessment that the National
    Labor Relations Board (the “Board” or the “NLRB”) was
    likely to determine, and be affirmed by this Court in so deter-
    mining, that appellants (the “Hotel”) engaged in violations of
    § 8(a)(1), (3) and (5) of the Act by refusing to bargain in good
    faith and excluding five union activists from the workforce.
    The District Court likewise did not abuse its discretion in con-
    cluding that the other requisites for § 10(j) relief were met.
    The somewhat more difficult question is the logically prior
    one of whether the District Court had the power to issue the
    injunction. In 2007, the Board assigned the authority to
    approve § 10(j) petitions to the General Counsel of the Board.
    See Minutes of Board Action, Dec. 20, 2007. Pursuant to this
    delegation, the General Counsel approved the filing of the
    instant § 10(j) petition. The Hotel argues that the Act requires
    that petitions for § 10(j) relief be individually approved by the
    Board before they are filed with a district court. Because the
    Regional Director did not obtain such approval, the Hotel
    argues, he did not have authority to petition for the injunction,
    and the District Court was without the power to grant it. Like
    all the federal courts of appeals to have addressed the ques-
    tion, we disagree. See Osthus v. Whitesell Corp., No. 09-3209,
    ___ F.3d ___, 
    2011 WL 1517949
    , at *2 (8th Cir. Apr. 22,
    2011); Overstreet v. El Paso Disposal, L.P., 
    625 F.3d 844
    ,
    851-52 (5th Cir. 2010); Muffley v. Spartan Mining Co., 
    570 F.3d 534
    , 539-40 (4th Cir. 2009).
    I.   BACKGROUND
    When the General Counsel of the National Labor Relations
    Board issues a complaint alleging an unfair labor practice and
    commences proceedings before the Board, it takes consider-
    able time—sometimes years—for the administrative process
    to conclude. But “[t]ime is usually of the essence [in labor
    disputes].” Miller v. Cal. Pac. Med. Ctr., 
    19 F.3d 449
    , 455 n.3
    9884    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    (9th Cir. 1994) (en banc) (quoting S. Rep. No. 80-105, at 8
    (1947) (second alteration in original)). As a result of “the rela-
    tively slow procedure of Board hearing and order, followed
    many months later by an enforcing decree of the circuit court
    of appeals . . . [i]t [may be] possible for persons violating the
    act to accomplish their unlawful objective before being placed
    under any legal restraint and thereby to make it impossible or
    not feasible [for the Board] to restore . . . the status quo.” 
    Id.
    (quoting S. Rep. No. 80-105, at 27 (1947).
    To remedy this problem, Congress added § 10(j) to the
    NLRA, as part of a comprehensive labor law reform in 1947.
    See Labor-Management Relations Act, 1947 (the “Taft-
    Hartley Act”), Pub. L. No. 80-101, § 101, 
    61 Stat. 136
    , 149,
    codified at 
    29 U.S.C. § 160
    (j). Section 10(j) provides:
    (j) Injunctions
    The Board shall have power, upon issuance of a
    complaint as provided in subsection (b) of this sec-
    tion charging that any person has engaged in or is
    engaging in an unfair labor practice, to petition any
    United States district court, within any district
    wherein the unfair labor practice in question is
    alleged to have occurred or wherein such person
    resides or transacts business, for appropriate tempo-
    rary relief or restraining order. Upon the filing of any
    such petition the court shall cause notice thereof to
    be served upon such person, and thereupon shall
    have jurisdiction to grant to the Board such tempo-
    rary relief or restraining order as it deems just and
    proper.
    
    29 U.S.C. § 160
    (j). The purpose of a § 10(j) injunction is “to
    protect the integrity of the collective bargaining process and
    to preserve the Board’s remedial power while it processes” an
    unfair labor practice complaint. Miller, 
    19 F.3d at 459-60
    .
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT                    9885
    The circumstances leading to the application for a § 10(j)
    injunction in this case are as follows: In 2002, the Interna-
    tional Longshore and Warehouse Union, Local 142 (the
    “Union”) began to organize employees at the Pacific Beach
    Hotel in Waikiki, Honolulu.1 A representation election was
    held in July, 2002, but the Board set it aside, finding that the
    Hotel had “engaged in objectionable conduct by coercively
    interrogating employees and maintaining an overly broad no-
    solicitation policy.” HTH Corp., 
    342 N.L.R.B. 372
    , 374
    (2004). After a second election, preceding which, the Board
    found, the Hotel again engaged in objectionable conduct, see
    generally Pac. Beach Corp., 
    344 N.L.R.B. 1160
     (2005), the
    Union was certified, prevailing by a one-vote margin.
    Bargaining between the Union and the Hotel did not go
    well. Between January 22, 2007 and August 29, 2008, the
    Union filed numerous unfair labor practice charges with the
    Regional Director of Region 20 of the Board (the “Regional
    Director” or the “Director”). The Director investigated the
    charges and issued an unfair labor practice complaint.
    On September, 30 2009, after thirteen days of hearings, a
    Board Administrative Law Judge (“ALJ”) determined that the
    Hotel had violated § 8(a)(1), (3) and (5) of the Act and recom-
    mended that the Board order the Hotel to cease and desist
    from various unfair labor practices and to take other remedial
    actions. The Hotel filed extensive exceptions to the ALJ’s rul-
    ing with the Board, and the Director filed limited ones. The
    case remains pending before the Board.
    On January 7, 2010, the Director filed a petition in the Dis-
    trict Court for injunctive relief under § 10(j) of the Act. In
    accordance with the Board’s 2007 delegation of litigation
    authority, the filing of the petition was approved by the
    1
    We use the term “Hotel” to refer the facility itself as well as the three
    business entities, appellants here, that have owned and managed it. Where
    the referent is not clear from context, we eschew the term.
    9886     FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    Board’s General Counsel but not by the members of the
    Board itself. The Hotel opposed the petition on its merits but
    also moved to dismiss the complaint for lack of subject-matter
    jurisdiction, contending that the Director’s failure to obtain
    the Board’s approval to file the § 10(j) petition deprived the
    District Court of jurisdiction. Siding with the Director, the
    District Court issued an injunction requiring the Hotel to bar-
    gain with the Union, to reinstate certain discharged employ-
    ees, to rescind unilateral changes to the bargaining unit
    members’ terms and conditions of employment, and to take
    various other remedial measures.
    The Hotel appealed. On June 14, 2011, while this appeal
    was pending, the Board issued its decision in the underlying
    action. See HTH Corp., 356 N.L.R.B. No. 182 (2011). It
    affirmed the ALJ’s rulings, findings, and conclusions, and it
    modified the ALJ’s recommended remedies in respects not
    relevant here.2
    II.   MOOTNESS
    [1] Before turning to the substantive issues at stake in this
    case, we must first address the issue of mootness. A Section
    10(j) proceeding, in which the Board seeks injunctive relief to
    protect the lawful status quo while litigation is pending, can
    become moot when the NLRB issues its decision in the under-
    lying administrative proceeding. See Miller, 
    19 F.3d at 453
    .
    Here, however, the Board filed in the district court a motion
    for civil contempt on February 14, 2011—while the Hotel was
    subject to the District Court’s injunction, after this appeal was
    filed, and before the Board issued its order. The original con-
    2
    The Board modified the ALJ’s order in two respects. First, in accord
    with its decision in Ky. River Med. Ctr., 356 N.L.R.B. No. 8 (2010), the
    Board required that back pay and other monetary awards be paid with
    interest compounded on a daily basis. Second, the Board modified the
    ALJ’s order to provide for the posting of notice in accord with J. Picini
    Flooring, 356 N.L.R.B. No. 9 (2010).
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT                9887
    tempt motion sought both coercive and compensatory relief,
    including back pay for an employee allegedly terminated in
    violation of the injunction and the Board’s attorneys’ fees and
    costs incurred in connection with the contempt proceeding.
    After the Board issued its decision, the Director notified the
    District Court that he no longer sought coercive remedies and,
    receiving an extension of time to file an amended civil con-
    tempt motion, withdrew the original contempt motion. On
    July 8, 2011, the Board filed an amended civil contempt
    motion seeking compensatory relief.
    [2] We hold that this appeal is not moot because its resolu-
    tion is crucial to a pending claim for retrospective monetary
    relief sought by the Board against the Hotel in a civil con-
    tempt proceeding. See Trans Int’l Airlines, Inc. v. Int’l Bhd.
    of Teamsters, 
    650 F.2d 949
    , 955 (9th Cir. 1980). “Despite
    superseding events, an issue is not moot if there are present
    effects that are legally significant.” Jacobus v. Alaska, 
    338 F.3d 1095
    , 1104 (9th Cir. 2003). The validity of a civil con-
    tempt adjudication turns on the legitimacy of the underlying
    injunction. See, e.g., Kirkland v. Legion Ins. Co., 
    343 F.3d 1135
    , 1142-43 (9th Cir. 2003); see also United States v.
    United Mine Workers, 
    330 U.S. 258
    , 294-95 (1947). The
    legitimacy of the District Court’s injunction, in turn, depends
    on whether the District Court abused its discretion in granting
    the Board’s § 10(j) petition. It also depends on the antecedent
    question whether the Board has authority to assign § 10(j)
    decisions to the General Counsel.3 Accordingly, we hold that
    neither the delegation issue nor the merits of the injunction
    are moot. Cf. Trans Int’l Airlines, 
    650 F.2d at 957
     (holding
    that alternative grounds for the injunction underlying a con-
    tempt proceeding remained live on appeal and noting a reluc-
    tance to fragment an appeal into “live” and “moot” issues).
    3
    Although a panel of three Board members issued the NLRB’s final
    order, this circumstance does not affect the General Counsel’s authority
    (or lack thereof) to commence the § 10(j) action.
    9888      FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    III.    THE BOARD’S AUTHORITY TO ASSIGN § 10(j)
    DECISIONS TO THE GENERAL COUNSEL
    The Hotel contends that each petition for relief under
    § 10(j) must be individually authorized by a quorum of NLRB
    members. Because the particular petition in this case was not
    so authorized, the Hotel maintains, the petition was improp-
    erly before the District Court and should have been dismissed
    for want of subject-matter jurisdiction.
    A.
    1.
    [3] The circumstances surrounding the 2007 delegation of
    litigation authority to the General Counsel here contested was
    described recently by the Supreme Court:
    As 2007 came to a close, the Board found itself
    with four members and one vacancy. It anticipated
    two more vacancies at the end of the year, when the
    recess appointments of Members Kirsanow and
    Walsh were set to expire, which would leave the
    Board with only two members—too few to meet the
    Board’s quorum requirement. The four sitting mem-
    bers decided to take action in an effort to preserve
    the Board’s authority to function. On December 20,
    2007, the Board made two delegations of its author-
    ity, effective as of midnight December 28, 2007.
    First, the Board delegated to the general counsel
    continuing authority to initiate and conduct litigation
    that would normally require case-by-case approval
    of the Board. Second, the Board delegated “to Mem-
    bers Liebman, Schaumber and Kirsanow, as a three-
    member group, all of the Board’s powers, in antici-
    pation of the adjournment of the 1st Session of the
    110th Congress.”
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT             9889
    ....
    On December 31, 2007, Member Kirsanow’s
    recess appointment expired. Thus, starting on Janu-
    ary 1, 2008, Members Liebman and Schaumber
    became the only members of the Board.
    New Process Steel, L.P. v. NLRB, 
    130 S. Ct. 2635
    , 2638-39
    (2010) (citations omitted). New Process Steel went on to con-
    sider the second of the two described delegations, holding that
    a three-member group with one vacancy could not exercise
    the powers of the Board. 
    Id. at 2641-42
    . Section 3(b) of the
    Act authorizes delegations to three-member groups, 
    29 U.S.C. § 153
    (b), but, the Supreme Court reasoned, such a “delegee
    group ceases to exist once there are no longer three Board
    members to constitute the group.” New Process Steel, 
    130 S. Ct. at
    2642 n.4.
    [4] At the same time, New Process Steel expressly
    declined to discuss the legality of the Board’s assignment of
    litigation authority to the General Counsel, the delegation
    challenged in this case. The Supreme Court explained:
    Our conclusion that the delegee group ceases to exist
    once there are no longer three Board members to
    constitute the group does not cast doubt on the prior
    delegations of authority to nongroup members, such
    as the regional directors or the general counsel. The
    latter implicates a separate question that our decision
    does not address.
    
    Id.
     We now consider that “separate question,” beginning with
    a brief survey of the relevant history.
    2.
    From 1935, when the NLRA was enacted, to 1947, the
    Board consisted of three members responsible for both the
    9890    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    prosecution and the adjudication of all cases over which the
    Board had jurisdiction. See National Labor Relations Act,
    Pub. L. No. 74-198 (the “Wagner Act”), § 3(a), 
    49 Stat. 449
    ,
    451 (1935); 
    id.
     § 10, 49 Stat. at 453-55; 2 JOHN HIGGINS, JR.,
    THE DEVELOPING LABOR LAW 2656-57 (5th ed. 2006). In
    response to criticism that the Board’s exercise of both pro-
    secutorial and adjudicatory functions was improper, Congress
    established the position of General Counsel of the Board and
    assigned the General Counsel the Board’s prosecutorial func-
    tions, as well as other roles. See id. at 2657; Taft-Hartley Act,
    § 101, 61 Stat. at 139, codified at 
    29 U.S.C. § 153
    (d). The
    Taft-Hartley Act also increased the membership of the Board
    to five. 
    Id.,
     codified at 
    29 U.S.C. § 153
    (a). Section 3(d) of the
    Act now provides, in pertinent part:
    There shall be a General Counsel of the Board who
    shall be appointed by the President, by and with the
    advice and consent of the Senate, for a term of four
    years. The General Counsel of the Board shall exer-
    cise general supervision over all attorneys employed
    by the Board (other than administrative law judges
    and legal assistants to Board members) and over the
    officers and employees in the regional offices. He
    shall have final authority, on behalf of the Board, in
    respect of the investigation of charges and issuance
    of complaints under section 160 of this title, and in
    respect of the prosecution of such complaints before
    the Board, and shall have such other duties as the
    Board may prescribe or as may be provided by law.
    
    29 U.S.C. § 153
    (d).
    [5] As a matter of the Board’s historical practice, the Gen-
    eral Counsel has not always sought case-specific approval
    before filing a § 10(j) petition. Immediately after the Taft-
    Hartley Act’s passage, for instance, the General Counsel and
    the Board entered into a “memorandum of understanding”
    according to which the “General Counsel [was to] exercise
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT                 9891
    full and final authority and responsibility on behalf of the
    Board for initiating and prosecuting injunction proceedings as
    provided for in Section[ ] 10(j).” Evans v. Int’l Typographical
    Union, 
    76 F. Supp. 881
    , 888 (S.D. Ind. 1948) (quoting the
    memorandum) (emphasis added); see also National Labor
    Relations Board—Procedures § 202.35, reprinted in 20 Labor
    Relations Reference Manual 3117-18 (1947) (“Whenever the
    Regional Director deems it advisable to seek temporary
    injunctive relief under Section 10(j) . . . the officer or
    Regional Attorney to whom the matter has been referred will
    make application for appropriate temporary relief . . . .”)
    (emphasis added).
    In 1950, however, the Board published a memorandum in
    the Federal Register “describ[ing] the statutory authority and
    set[ting] forth the prescribed duties and authority of the Gen-
    eral Counsel of the Board.” Nat’l Lab. Rel. Bd., General
    Counsel—Description of Authority and Assignment of
    Responsibilities, 
    15 Fed. Reg. 6924
    , 6924 (Oct. 14, 1950) (the
    “1950 Memorandum”). That memorandum provided that
    “[o]n behalf of the Board, the General Counsel of the Board
    will[,] in full accordance with the directions of the Board, . . .
    initiate and prosecute injunction proceedings as provided in
    section 10(j) . . . Provided, however, That the General Coun-
    sel will initiate and conduct injunction proceedings under sec-
    tion 10(j) . . . only upon approval of the Board . . . .” 
    Id.
     In
    other words, the 1950 Memorandum authorized the General
    Counsel to file § 10(j) petitions on the Board’s behalf, but
    required him to seek case-specific authorization from the
    Board before filing them. The Board issued a new memoran-
    dum in 1955 containing an assignment of litigation authority
    to the General Counsel identical to that in the 1950 Memoran-
    dum. See Nat’l Lab. Rel. Bd., Authority and Assigned
    Responsibilities of General Counsel of National Labor Rela-
    tions Board, 
    20 Fed. Reg. 2175
    , 2175 (April 6, 1955) (the
    “1955 Memorandum”).4 These two memoranda set forth what
    4
    The 1950 Memorandum had been revoked in 1954, when the Board
    assigned litigation authority to its Associate General Counsel. See Nat’l
    Lab. Rel. Bd., Revocation of Statement of Description of Authority and
    Assignment of Responsibilities to the General Counsel, 
    19 Fed. Reg. 8830
    , 8831 (Dec. 21, 1954).
    9892     FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    was the Board’s standard, but not invariant,5 practice until the
    2007 delegation at issue in this case. The General Counsel’s
    § 10(j) Manual describes that procedure in greater detail:
    After the Region [i.e., a regional office of the
    agency] determines that a case has merit and
    believes 10(j) proceedings are appropriate, the
    Region makes a recommendation in writing to the
    General Counsel, through the Injunction Litigation
    Branch (ILB) of the Division of Advice, as to
    whether it believes that Section 10(j) relief is war-
    ranted. . . . If the General Counsel agrees that 10(j)
    proceedings should be sought, the Region’s memo-
    randum provides the foundation for the General
    Counsel’s request for authorization from the Board.
    ....
    After the General Counsel reviews and signs
    ILB’s cover memorandum to the Board, the entire
    case, including the Region’s memorandum and
    attachments, is submitted to the Board. . . . At this
    point, at the latest, the Region should immediately
    begin preparing papers to file in district court. . . . If
    the Board authorizes Section 10(j) proceedings, the
    ILB will immediately notify the Region.
    5
    The Board delegated generic § 10(j) authority to the General Counsel
    for a brief period in 2001 and 2002, see Nat’l Lab. Rel. Bd., Order Dele-
    gating Authority to the General Counsel Before Chairman Peter J. Hurt-
    gen, and Members Wilma B. Liebman and Dennis P. Walsh, 
    66 Fed. Reg. 65998
    , 65998 (Dec. 21, 2001); Kentov v. Point Blank Body Armor, Inc.,
    
    258 F. Supp. 2d 1325
    , 1327-28 (S.D. Fla. 2002).
    In addition to this 2001 order, the Board has published amendments to
    the 1955 Memorandum in the Federal Register, but these amendments
    relate to parts of the memorandum that are of no relevance here. See Nat’l
    Lab. Rel. Bd., General Counsel—Further Amendment to Memorandum
    Describing Authority and Assigned Responsibilities, 
    67 Fed. Reg. 62992
    ,
    62992 (Oct. 9, 2002) (citing other amending memoranda).
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT                      9893
    NLRB Office of the General Counsel, Electronic Redacted
    § 10(j) Manual §§ 5.2, 5.3, & 5.5 at 12 & 14 (2002).6 The
    § 10(j) Manual does not describe the Board’s procedure upon
    receipt of the General Counsel’s memorandum, but the
    Board’s Case Handling Manual suggests that the ordinary
    practice has been for the Board to vote on each petition indi-
    vidually:
    The Regional Office, based on either the Director’s
    sua sponte determination or a request from the
    charging party, initially considers whether 10(j)
    relief is warranted. In contrast to 10(l) injunctive
    relief, where by statute interim relief must be sought
    whenever certain unfair labor practices have
    occurred and are likely to continue, the Board
    decides on a case-by-case basis whether to authorize
    the Regional Office to seek 10(j) relief.
    NLRB Case Handling Manual, Part I, Unfair Labor Practice
    Proceedings § 10310 (2009).7 After obtaining the Board’s
    approval, the Regional Director files the § 10(j) petition in
    district court.8 See 
    29 C.F.R. § 101.37
     (“Whenever it is
    deemed advisable to seek temporary injunctive relief under
    section 10(j) . . . the officer or regional attorney to whom the
    matter has been referred will make application for appropriate
    temporary relief . . . .”).
    6
    The redacted § 10(j) Manual is available at http://www.nlrb.gov/sites/
    default/files/documents/44/redacted_10j_manual_5.0_reduced.pdf            (last
    visited June 8, 2011).
    7
    The relevant section of the Case Handling Manual is available at
    http://www.nlrb.gov/sites/default/files/documents/44/chm_ulp_2011.pdf
    (last visited June 8, 2011). We later discuss the relevance of § 10(l).
    8
    For whatever reason, § 10(j) petitions have historically been filed in the
    name of a regional director “for and on behalf of the Board.” See Gottfried
    v. Frankel, 
    818 F.2d 485
    , 492 (6th Cir. 1987) (noting this practice). In
    accord with this longstanding practice, the plaintiff in this case is “Joseph
    F. Frankl, for and on behalf of the Board,” not simply the “Board.”
    9894      FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    [6] The Director and the Hotel dispute whether this proce-
    dure, case-by-case pre-filing approval by the Board of § 10(j)
    petitions, is mandated by the Act. We conclude that it is not.9
    B.
    The parties and some of the courts to have considered the
    question have assumed that if a Regional Director failed to
    obtain the necessary authorization to file a § 10(j) petition,
    that failure would deprive a district court of subject-matter
    jurisdiction. See Osthus, 
    2011 WL 1517949
    , at *2 (holding
    that the Board’s delegation did not deprive the district court
    of “subject matter jurisdiction”); El Paso Disposal, 
    625 F.3d at 851-52
     (same); cf. Fed. Election Comm’n v. NRA Political
    Victory Fund, 
    513 U.S. 88
    , 98-99 (1994) (dismissing a peti-
    tion for certiorari for lack of jurisdiction because the FEC
    lacked “statutory authority to litigate th[e] case in” the
    Supreme Court without the Solicitor General’s authorization).
    In support of its contention that a district court’s jurisdiction
    hangs in the balance, the Hotel observes that § 10(j)’s first
    sentence describes the manner and circumstances in which a
    § 10(j) petition may be filed, and its second sentence then pro-
    vides that “[u]pon the filing of any such petition the court . . .
    shall have jurisdiction.” 
    29 U.S.C. § 160
    (j) (emphasis added).
    The use of the word “such,” the Hotel argues, means that a
    district court does not have jurisdiction to grant § 10(j) relief
    if the petition seeking it was not approved in accordance with
    the terms of the first sentence.
    9
    In McDermott v. Ampersand Publishing, 
    593 F.3d 950
     (9th Cir. 2010),
    we considered an appeal from a denial of a § 10(j) petition approved by
    the General Counsel, but not by the Board. See id. at 956. We affirmed
    the district court on the merits without addressing the propriety of the pro-
    cedure by which the agency arrived at the decision to file the petition. See
    id. at 956 n.4. Even if, as the Hotel maintains, a district court’s jurisdiction
    turns on that procedure’s propriety, McDermott is not of precedential sig-
    nificance as to that issue. See Lewis v. Casey, 
    518 U.S. 343
    , 352 n.2
    (1996) (“[W]e have repeatedly held that the existence of unaddressed
    jurisdictional defects has no precedential effect.”).
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT                  9895
    An alternative view of the statutory language is that as long
    as the petition is facially regular—that is, is filed on behalf of
    the Board in the appropriate court, specifies that a complaint
    alleging an unfair labor practice has been issued, and requests
    appropriate relief—it is “such [a] petition” and the district
    court has jurisdiction to consider it. On that view, issues con-
    cerning whether the petition was properly approved might at
    most be considered on the merits, but would not implicate the
    court’s jurisdiction. We regard it unlikely that Congress
    intended a district court’s jurisdiction to depend on the back-
    stage subtleties of how a facially proper petition came to be
    before it, especially as both the court and the respondent in
    § 10(j) proceedings will often have no reason to suspect that
    a petition was not properly authorized.
    [7] Here, however, the issue of the propriety of the Board’s
    2007 delegation of its authority to approve § 10(j) petitions to
    the General Counsel has been squarely raised before us.
    Because we conclude that the General Counsel’s exercise of
    that authority was permitted by the statute, it does not matter
    —except at one point in the analysis, see infra section III.D—
    whether the District Court’s jurisdiction turned on the issue.
    We shall therefore assume, without deciding, that an improp-
    erly authorized § 10(j) petition would have implications for a
    district court’s subject-matter jurisdiction.
    C.
    1.
    The Hotel urges us to read § 10(j)’s language as requiring
    that the Board approve each individual § 10(j) petition. That
    section provides, “The Board shall have power . . . to petition
    . . . for appropriate temporary relief . . . .” 
    29 U.S.C. § 160
    (j)
    (emphasis added). “The Board,” the Hotel insists, means the
    five members of the Board, acting as a group, not the General
    Counsel and not the Regional Director.10 By contrast, § 10(l),
    10
    In some contexts, there is a certain ambiguity as to what “the Board”
    is. “The Board” may refer to the entire agency responsible for the over-
    9896     FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    which was also added by the Taft-Hartley Act in 1947, pro-
    vides that, upon the filing of certain kinds of charges with the
    Board, the charges must be investigated and
    [i]f, after such investigation, the officer or regional
    attorney to whom the matter may be referred has
    reasonable cause to believe such charge is true and
    that a complaint should issue, he shall, on behalf of
    the Board, petition [the appropriate] United States
    district court . . . for appropriate injunctive relief
    pending the final adjudication of the Board with
    respect to such matter.
    
    29 U.S.C. § 160
    (l) (emphases added). In other words, § 10(l)
    makes clear that an officer of the Board—not the Board itself
    —not only may, but must, seek temporary injunctive relief to
    remedy certain narrow violations of the Act. That § 10(j) ref-
    erences only the Board, not the Board’s officers or regional
    attorneys, the argument goes, suggests that the Board itself
    must approve each § 10(j) petition before it is filed.
    We conclude that these statutory considerations are more
    than counterbalanced by a number of others. As we explain,
    § 10(j) gives the Board the power to petition a court for relief,
    which the Board necessarily does through counsel, but does
    not specify the level of involvement that the Board must have
    with each individual petition. The contrast with § 10(l)
    reflects only that § 10(l) removes from the Board the author-
    sight of most private-sector labor relations in the United States (and so
    include the General Counsel and the regional directors), or it can refer
    only to the five-member council that governs that agency. Section 10(j)’s
    reference to “the Board” refers to the five-member council. See 
    29 U.S.C. § 152
    (10) (defining “the National Labor Relations Board” throughout the
    Act as “the National Labor Relations Board provided for in section 153”);
    
    id.
     § 153(a) (“the National Labor Relations Board (hereinafter called the
    ‘Board’) . . . is continued as an agency of the United States, except that
    the Board shall consist of five instead of three members . . . .”).
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT           9897
    ity, left to the Board in § 10(j), to determine how and by
    whom the filing of petitions is to be authorized. Section 3(d)
    of the Act, providing that the General Counsel shall, in addi-
    tion to the duties prescribed by the statute, “have such other
    duties as the Board may prescribe,” supplies the Board’s
    authorization to assign the General Counsel the duty to decide
    whether § 10(j) petitions should be filed. Relying on these
    statutory features, we hold that, although the Board may
    reserve to itself the ultimate decision whether to petition for
    § 10(j) relief in individual cases, it may also exercise its
    power to petition for § 10(j) relief by authorizing the General
    Counsel to decide in which cases to seek relief on the Board’s
    behalf.
    2.
    [8] We begin with the observation that § 10(j) provides
    only that “[t]he Board shall have power . . . to petition” for
    relief. 
    29 U.S.C. § 160
    (j). It does not specify how the Board
    must exercise that power, or that the Board may not allow
    anyone else to decide when that power should be exercised in
    individual cases.
    [9] Section 10(j) is quite different in this respect from
    § 10(c), the provision of the Act discussing the Board’s power
    to issue orders in unfair labor practice adjudications. See 
    29 U.S.C. § 160
    (c). That section provides that “[i]f upon the pre-
    ponderance of the testimony taken the Board shall be of the
    opinion” that an unfair labor practice has occurred, “then the
    Board shall state its findings of fact and shall issue . . . an
    order requiring such person to cease and desist from such
    unfair labor practice.” 
    Id.
     (emphases added). This language
    contemplates that the Board shall form its own opinion and
    state its own findings of fact. There is no analogous sugges-
    tion in the language of § 10(j). Indeed, there is even a subtle
    difference between § 10(c)’s statement that the Board “shall
    issue . . . an order” and § 10(j)’s provision that the Board
    “shall have power . . . to petition” for relief. The former iden-
    9898       FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    tifies the Board as the taker of the action in question (issuing
    orders), while the latter merely assigns the Board a power,
    without any clear implication as to how that power must be
    exercised or to whom it may be delegated.
    [10] Further, § 10(c) begins with a recognition that testi-
    mony may be “taken by [a Board] member, agent, or agency”
    of the Board, see also 
    29 U.S.C. § 160
    (b), before stating that
    after such a member, agent, or agency takes testimony, “in its
    discretion, the Board upon notice may take further testimony
    or hear argument.” 
    Id.
     § 160(c) (emphases added). The sec-
    tion then goes on to describe, in the manner recounted above,
    the Board’s duties to state its findings of fact, form its opin-
    ion, and issue orders in unfair labor practice cases. This dis-
    tinction between the Board on the one hand and Board
    members, agents, and agencies on the other underscores that
    § 10(c)’s later references to the “Board’s”—but not Board
    “members’, agents’ or agencies’ ”—duty to decide unfair
    labor practice cases and issue orders in them is further evi-
    dence that the Board may not authorize others to adjudicate
    individual unfair labor practice cases on its behalf. Again,
    there is no similar contrast in § 10(j), and so no basis for
    inferring a requirement that the Board itself make § 10(j)
    decisions on a case-by-case basis.
    Another provision of the Act similarly supports through
    structural comparison the view that § 10(j) does not direct the
    Board to decide itself, on an individualized basis, whether to
    file petitions for interim relief with district courts. Unlike
    § 10(j), § 10(b) expressly contemplates the possibility of an
    “agent or agency designated by the Board for . . . purposes”
    of exercising the Board’s “power” to issue complaints. 
    29 U.S.C. § 160
    (b).11 But an examination of the statutory history
    11
    Section 10(b), 
    29 U.S.C. § 160
    (b), provides:
    Whenever it is charged that any person has engaged in or is
    engaging in any such unfair labor practice, the Board, or any
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT                    9899
    of § 10(b) reveals that the inference to be drawn from that
    provision is that the use of the term “power” to describe a par-
    ticular Board activity does not preclude its assignment on a
    generic basis to another official or officials.
    Section 10(b), including its mention of an “agent or agency
    designated by the Board” to exercise the Board’s “power” to
    issue complaints, was included in the original Wagner Act,
    see 49 Stat. at 453-54, and left largely unamended by the
    Taft-Hartley Act. See 61 Stat. at 146-47. The Taft-Hartley
    Act, however, added § 3(d) to the NLRA, creating the posi-
    tion of General Counsel, designating the General Counsel as
    having “final authority, on behalf of the Board,” to issue com-
    agent or agency designated by the Board for such purposes, shall
    have power to issue and cause to be served upon such person a
    complaint stating the charges in that respect, and containing a
    notice of hearing before the Board or a member thereof, or before
    a designated agent or agency, at a place therein fixed, not less
    than five days after the serving of said complaint: Provided, That
    no complaint shall issue based upon any unfair labor practice
    occurring more than six months prior to the filing of the charge
    with the Board and the service of a copy thereof upon the person
    against whom such charge is made, unless the person aggrieved
    thereby was prevented from filing such charge by reason of ser-
    vice in the armed forces, in which event the six-month period
    shall be computed from the day of his discharge. Any such com-
    plaint may be amended by the member, agent, or agency conduct-
    ing the hearing or the Board in its discretion at any time prior to
    the issuance of an order based thereon. The person so complained
    of shall have the right to file an answer to the original or
    amended complaint and to appear in person or otherwise and give
    testimony at the place and time fixed in the complaint. In the dis-
    cretion of the member, agent, or agency conducting the hearing
    or the Board, any other person may be allowed to intervene in the
    said proceeding and to present testimony. Any such proceeding
    shall, so far as practicable, be conducted in accordance with the
    rules of evidence applicable in the district courts of the United
    States under the rules of civil procedure for the district courts of
    the United States, adopted by the Supreme Court of the United
    States pursuant to section 2072 of Title 28.
    9900     FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    plaints, and providing generally for the assignment of “other
    duties” to the General Counsel. 61 Stat. at 139. The new
    § 3(d) thus both negated the Board’s ability to make the spe-
    cific delegation of Board “power” to issue unfair labor prac-
    tice complaints contemplated by § 10(b) by assigning that
    “final” authority to the General Counsel, and obviated the
    need for any specific authorization within § 10(j) for discre-
    tionary delegations of the Board’s powers, by providing
    generically in § 3(d) for such assignments to the General
    Counsel. So the mention of designated agents in § 10(b), far
    from defeating the notion that the Board’s § 10(j) power may
    be exercised by an entity other than the Board, in fact sug-
    gests that the Board’s “powers” are not inherently nondelega-
    ble.12
    Finally, comparison between § 10(j) and § 10(l), does not
    detract from the conclusion that nothing in § 10(j) requires the
    Board to make case-by-case decisions as to § 10(j) petitions.
    For a subset of unfair labor practice cases, § 10(l) mandates,
    rather than allows, application for interim relief if “the officer
    or regional attorney to whom the matter may be referred has
    reasonable cause to believe [the] charge is true and that a
    complaint should issue.” 
    29 U.S.C. § 160
    (l). The section also
    assigns the task of making the application for interim relief to
    “the officer or regional attorney to whom the matter may be
    referred . . . on behalf of the Board.” 
    Id.
     Section 10(l) thus
    establishes a mandatory procedure in respect to when to peti-
    tion for interim relief and who should file the petition. By
    contrast, § 10(j) sets neither type of requirement, and so pro-
    vides the Board with flexibility both as to whether to petition
    12
    The Hotel strenuously objects to the notion that § 3(d) has anything
    to do with the General Counsel’s authority to approve § 10(j) petitions, an
    objection to which we later return. But, for now, the salient points are that
    § 10(j) is silent as to the level of generality at which the Board must exer-
    cise its power to petition, and that the Act has from the outset recognized
    that the Board can sometimes exercise its statutory “powers” by assigning
    them generically to other affiliated officials and allowing them to decide
    in which individual cases they should be exercised.
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT          9901
    for mandatory relief and as to the decisionmaking process for
    determining whether to do so.
    Section 10(j)’s silence speaks loudly enough that we might
    end the matter there, concluding that the Board may exercise
    its § 10(j) power by having the General Counsel decide
    whether to petition for § 10(j) relief in an individual case.
    Indeed, unlike stating findings of fact or issuing orders in
    unfair labor practice proceedings, it is hard to delineate the
    precise action that constitutes an exercise of the § 10(j)
    power. Surely, the multi-member Board is not required to
    make every decision that arises in the course of litigating a
    § 10(j) petition. The multi-member council need not, for
    example, appear before the district court and recite its oral
    argument in unison. The Board’s lawyers do—indeed, must—
    make such litigation decisions and so they are necessarily
    involved in the exercise of the Board’s power to petition
    under § 10(j).
    [11] No more than it requires the Board’s involvement in
    each decision relating to a § 10(j) petition does the language
    of the statute require that the Board approve each individual
    petition. In other words, nothing in the statute makes the indi-
    vidual petition the unit of analysis for determining when the
    Board is exercising its § 10(j) power. Moreover, petitioning a
    court for relief is a lawyerly function and the General Counsel
    is, after all, the supervisor of the Board’s legal staff. See 
    29 U.S.C. § 153
    (d). So it seems quite natural that the Board
    could assign to the General Counsel the duty to decide when
    to exercise its power to petition. Cf. Am. Bar Ass’n, Model
    Rules of Prof’l Conduct, R. 1.2 cmt. 3 (“[T]he client may
    authorize the lawyer to take specific action on the client’s
    behalf without further consultation . . . . [A] lawyer may rely
    on such an advance authorization.”).
    3.
    More generally, we have previously observed that as far as
    delegation to subordinates is concerned, “[e]xpress statutory
    9902    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    authority for delegation is not required.” Loma Linda Univ. v.
    Schweiker, 
    705 F.2d 1123
    , 1128 (9th Cir. 1983); see U.S.
    Telecom Ass’n v. FCC, 
    359 F.3d 554
    , 565 (D.C. Cir. 2004)
    (“When a statute delegates authority to a federal officer or
    agency, subdelegation to a subordinate federal officer or
    agency is presumptively permissible absent affirmative evi-
    dence of a contrary congressional intent.”); see also Inland
    Empire Pub. Lands Council v. Glickman, 
    88 F.3d 697
    , 702
    (9th Cir. 1996) (“Without express congressional authorization
    for a subdelegation, we must look to the purpose of the statute
    to set its parameters.” (internal quotation marks omitted)).
    It is true that the General Counsel’s status as the Board’s
    subordinate is not unequivocal. The General Counsel is an
    independently appointed and confirmed officer whose pro-
    secutorial role Congress deemed it prudent to segregate from
    the Board’s adjudicatory one. That fact complicates the appli-
    cation of the general presumption that delegations to subordi-
    nates are permissible in cases of statutory silence.
    [12] But the General Counsel is the Board’s subordinate at
    least insofar as § 3(d) of the Act requires the General Counsel
    to perform “such other duties as the Board may prescribe.” 
    29 U.S.C. § 153
    (d). The Act, in other words, is not silent. Upon
    careful consideration, we conclude that § 3(d) authorizes the
    Board to prescribe to the General Counsel in particular the
    responsibility and authority to decide when to seek § 10(j)
    relief.
    Section 3(d) of the Act provides that the General Counsel
    shall have final authority, on behalf of the Board, in
    respect of the investigation of charges and issuance
    of complaints under [section 10], and in respect of
    the prosecution of such complaints before the Board,
    and shall have such other duties as the Board may
    prescribe or as may be provided by law.
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT         9903
    
    29 U.S.C. § 153
    (d) (emphasis added). The Hotel contends that
    § 3(d) authorizes the delegation only of “duties,” not of “pow-
    ers,” and so, because the Act describes the authority to peti-
    tion for a § 10(j) injunction as a “power,” 
    29 U.S.C. § 160
    (j),
    not as a “duty,” § 3(d) cannot authorize the Board to delegate
    to the General Counsel generic authority to approve § 10(j)
    petitions.
    [13] A careful reading of § 3(d), informed by the Act as a
    whole, reveals that its use of the word “duties” does not con-
    template that functions elsewhere described as “powers” may
    not be prescribed to the General Counsel. Section 3(d) pro-
    vides that the General Counsel shall have “such other duties”
    as the Board may prescribe; it does not simply say “such
    duties.” 
    29 U.S.C. § 153
    (d) (emphasis added). For the use of
    the word “other” to be linguistically proper, § 3(d) must be
    read as having already listed some functions that may be con-
    strued as duties of the General Counsel. And, unsurprisingly,
    it has: The sentence in § 3(d) authorizing the prescription of
    “other duties” begins by stating that the General Counsel
    “shall have final authority, on behalf of the Board, in respect
    of the investigation of charges and issuance of complaints
    under [section 10], and in respect of the prosecution of such
    complaints before the Board.” 
    29 U.S.C. § 153
    (d). For the
    word “other” in the phrase “other duties” to make sense,
    § 3(d) must be read as presupposing that these enumerated
    functions of the General Counsel (i.e., the investigation of
    charges and the issuance and prosecution of complaints) are
    also “duties.”
    Other parts of the Act, however, refer to these same enu-
    merated functions as “powers.” Section 10 of the Act, for
    instance, sets forth the Board’s authority to issue complaints
    and is explicitly cross-referenced by § 3(d). It provides that:
    the Board, or any agent or agency designated by the
    Board for such purposes, shall have power to issue
    9904    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    and cause to be served upon such person a complaint
    ....
    
    29 U.S.C. § 160
    (b) (emphasis added). Similarly, Congress
    prefaced §§ 11 and 12 of the Act, which describe the Board’s
    authority to investigate unfair labor practices, with the head-
    ing “Investigatory Powers.” Wagner Act, 49 Stat. at 455;
    Taft-Hartley Act, 61 Stat. at 150 (emphasis added); see
    Almendarez-Torres v. United States, 
    523 U.S. 224
    , 234
    (1998) (“[T]he heading of a section [is a] tool[ ] available for
    the resolution of a doubt about the meaning of a statute.”)
    (internal quotation marks omitted). So, read as a whole, the
    Act cannot be fairly said to contain any clear-cut distinction
    between “powers” and “duties.”
    That the Act appears to use the terms “power” and “duty”
    as largely interchangeable is unsurprising. One can only be
    under a duty to do that which one has the power to do, and
    a duty need not be an obligation to exercise a ministerial
    power. Cf. Osthus, 
    2011 WL 1517949
    , at *4-5 (Colloton, J.,
    concurring) (observing that “it is not logically inconsistent for
    Congress to say that a superior body (the Board) may task a
    subordinate official (the General Counsel) with the ‘duty’ to
    exercise some of the Board’s ‘power’ ” and drawing an anal-
    ogy to similar language in the Internal Revenue Code). The
    sum of the matter is that any inference from the text of the
    statute that the Act precludes the Board from assigning to the
    General Counsel the task of deciding in which individual
    cases § 10(j) petitions should be filed is, at best, exceedingly
    weak.
    4.
    One final consideration reinforces the conclusion that the
    Act permits the assignment of § 10(j) petition decisions to the
    General Counsel: Section 10(e) of the Act has long been inter-
    preted and applied to permit the General Counsel, and not the
    Board itself, to make the ultimate decision whether to com-
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT              9905
    mence litigation in individual cases. Section 10(e)’s structure
    is nearly identical to that of § 10(j). The agency’s longstand-
    ing practice under § 10(e) is therefore persuasive evidence of
    the legality of its more short-lived and episodic practice under
    § 10(j). See New Process Steel, 
    130 S. Ct. at 2641-42
    .
    Violation of an order issued by the Board at the conclusion
    of unfair labor practice proceedings does not result in any
    penalties for the violator. See 2 HIGGINS, supra, at 2802. “To
    secure compliance, the Board must apply to an appropriate
    U.S. court of appeals” for enforcement of its order. Id. Section
    10(e) of the Act sets forth the power of the Board to petition
    for judicial enforcement of its orders, using language closely
    parallel to that of § 10(j). Specifically, § 10(e) provides, in
    part, that “[t]he Board shall have power to petition any court
    of appeals of the United States . . . for the enforcement of [its]
    order.” 
    29 U.S.C. § 160
    (e) (emphasis added). Section 10(e)
    then includes a grant of jurisdiction that is structured in a
    manner essentially identical to § 10(j)’s, providing that
    “[u]pon the filing of such petition, the court shall cause notice
    thereof to be served . . ., and thereupon shall have jurisdiction
    of the proceeding and of the question determined therein.” Id.
    From 1950 to 2007, the General Counsel’s litigation
    authority on behalf of the Board was, with rare exceptions,
    governed by memoranda containing the following language:
    On behalf of the Board, the General Counsel of
    the Board will, in full accordance with the directions
    of the Board, petition for enforcement and resist
    petitions for review of Board Orders as provided in
    section 10(e) and (f) of the act, initiate and prosecute
    injunction proceedings as provided in section 10(j),
    seek temporary restraining orders as provided in sec-
    tion 10(e) and (f), and take appeals either by writ of
    error or on petition for certiorari to the Supreme
    Court: Provided, however, That the General Counsel
    will initiate and conduct injunction proceedings
    9906      FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    under section 10(j) or under section 10(e) and (f) of
    the act and contempt proceedings pertaining to the
    enforcement of or compliance with any order of the
    Board only upon approval of the Board, and will ini-
    tiate and conduct appeals to the Supreme Court by
    writ of error or on petition for certiorari when autho-
    rized by the Board.
    1955 Memorandum, 20 Fed. Reg. at 2175; 1950 Memoran-
    dum, 15 Fed. Reg. at 6924; see section II.A.2, supra. In other
    words, the memoranda assigned to the General Counsel
    generic authority to petition for enforcement of the Board’s
    orders under § 10(e) of the Act. In the proviso, the Board
    required the General Counsel to obtain case-specific approval
    only to seek injunctive relief under § 10(j), (e) and (f) of the
    Act, to petition for Supreme Court review, and to bring con-
    tempt proceedings.13
    The agency’s longstanding practice of having the General
    Counsel, and not the Board, exercise final authority in
    approving petitions for enforcement under § 10(e) is strongly
    supportive of that practice’s validity. See New Process Steel,
    
    130 S. Ct. at 2641
     (drawing on the “longstanding practice of
    the Board” as “persuasive evidence” that the Court’s interpre-
    tation of the Act “is the correct one”); Karsten v. Saint-
    Gobain Performance Plastics, 
    131 S. Ct. 1325
    , 1335 (2011)
    (according deference under Skidmore v. Swift & Co., 
    323 U.S. 134
     (1944), to agencies’ views in part because of “[t]he length
    of time the agencies have held them”); Int’l Bhd. of Teamsters
    13
    Because § 10(j) relief may expire upon the issuance of a final Board
    order, § 10(e) also provides that a court “shall have power to grant . . .
    temporary relief or [a] restraining order” pending the enforcement pro-
    ceedings. 
    29 U.S.C. § 160
    (e). A request for such temporary relief is dis-
    tinct from a petition to enforce an order of the Board.
    Section 10(f) of the Act allows “person[s] aggrieved” by Board orders
    to petition for their review by a court and allows the court to grant tempo-
    rary injunctive relief similar to that available under § 10(e). 
    29 U.S.C. § 160
    (f).
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT          9907
    v. Daniel, 
    439 U.S. 551
    , 566 n.20 (1979) (“[A]n administra-
    tive agency’s consistent, longstanding interpretation of the
    statute under which it operates is entitled to considerable
    weight.”). To conclude that the General Counsel could not
    exercise such authority would be to hold decades of unchal-
    lenged agency practice unlawful—a practice, moreover, in
    which courts have acquiesced thousands of times over by
    granting petitions for enforcement.
    In NLRB v. C&C Roofing Supply, Inc., 
    569 F.3d 1096
     (9th
    Cir. 2009), for example, relying on the 1955 Memorandum,
    we observed that “[t]he General Counsel’s authority to peti-
    tion the courts of appeals for enforcement . . . is permanently
    within the General Counsel’s authority,” explaining that such
    power “does not derive from the temporary delegation of
    2007.” 
    Id. at 1098
    . Although we did not directly address the
    validity of the 1955 Memorandum’s assignment of § 10(e)
    authority, the fact that we characterized the delegation as per-
    manent evidences its longstanding nature and the history of
    judicial acquiescence in it.
    Of course, if the statute clearly precluded the generic
    assignment of when to exercise the Board’s § 10(e) power to
    the General Counsel, it would be our duty to tell the agency
    that it had been wrong all along. But the statute contains no
    such preclusion. Instead, it affirmatively suggests that the
    Board may exercise its power to petition for enforcement
    under § 10(e) by authorizing the General Counsel to decide
    when to petition for enforcement of Board orders in individ-
    ual cases, for the same reasons, already discussed, that it may
    do the same under § 10(j). See IBP, Inc. v. Alvarez, 
    546 U.S. 21
    , 34 (2005) (“[T]he normal rule of statutory interpretation
    [is] that identical words used in different parts of the same
    statute are generally presumed to have the same meaning.”);
    Overstreet v. United Bhd. of Carpenters, Local Union No.
    1506, 
    409 F.3d 1199
    , 1206-07 (9th Cir. 2005) (same). The
    converse is, of course, also true. As long as the Board may
    grant generic authorization to the General Counsel to approve
    9908    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    petitions for enforcement under § 10(e), the same must be the
    case under § 10(j).
    [14] In sum, we hold that the text of the Act, reinforced by
    the Board’s longstanding practice under § 10(e), allows the
    Board to assign the General Counsel final authority in decid-
    ing when to petition for injunctive relief under § 10(j) in par-
    ticular unfair labor practice cases pending before the Board.
    The three other circuits that have addressed the question
    agree that district courts may entertain § 10(j) petitions
    approved by the General Counsel pursuant to the authority
    granted him by the Board in December 2007. See Osthus v.
    Whitesell Corp., No. 09-3209, ___ F.3d ___, 
    2011 WL 1517949
     (8th Cir. Apr. 22, 2011); Overstreet v. El Paso Dis-
    posal, L.P., 
    625 F.3d 844
    , 851-52 (5th Cir. 2010); Muffley v.
    Spartan Mining Co., 
    570 F.3d 534
    , 539-40 (4th Cir. 2009).
    Although our reasoning differs somewhat from that in those
    cases, our conclusion with regard to the validity of the
    Board’s 2007 delegation of litigation authority under § 10(j)
    is identical.
    D.
    [15] Because we have assumed, without deciding, that the
    Regional Director’s authority to petition for § 10(j) relief may
    have jurisdictional implications, we consider an issue that the
    Hotel did not raise, but that other circuits have considered and
    rejected—whether the reduction of the Board’s membership
    to two, where it stood at the time the General Counsel
    approved the filing of the § 10(j) petition here at issue,
    affected the ability of the General Counsel to file § 10(j) peti-
    tions. See El Paso Disposal, 
    625 F.3d at 853
    ; Osthus, 
    2011 WL 1517949
     at *2 (following El Paso Disposal); see also
    Williams v. United Airlines, Inc., 
    500 F.3d 1019
    , 1021 (9th
    Cir. 2007) (noting our duty to raise questions of the district
    court’s jurisdiction nostra sponte).
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT          9909
    In a case decided before New Process Steel, the D.C. Cir-
    cuit suggested that the reduction of the Board’s membership
    to two would have such an effect. See Laurel Baye Health-
    care of Lake Lanier, Inc. v. NLRB, 
    564 F.3d 469
    , 473 (D.C.
    Cir. 2009). Considering the 2007 delegation of adjudicatory
    authority also at issue in New Process Steel, Laurel Baye
    drew on principles of agency and corporations law, broadly
    reasoning that “[i]n the context of a board-like entity, a
    delegee’s authority . . . ceases the moment that vacancies or
    disqualifications on the board reduce the board’s membership
    below a quorum.” 
    Id.
    But New Process Steel rejected the D.C. Circuit’s underly-
    ing premise in Laurel Baye: The Supreme Court emphasized
    that a quorum requirement only specifies the “number of
    members who must participate for [a multi-member organiza-
    tion] to take an action,” not “a membership requirement that
    must be satisfied or else the power of any entity to which the
    Board has delegated authority is suspended.” New Process
    Steel, 
    130 S. Ct. at
    2642 n.4. In other words, New Process
    Steel instructs that the Act’s quorum requirement must be sat-
    isfied when the Board is acting directly through its members,
    but does not need to be satisfied for the Board’s earlier exer-
    cises and assignments of its authority, made with a proper
    quorum, to remain valid and in effect.
    [16] Given that distinction, the Board-member quorum
    requirement in § 3(b) of the Act has only limited pertinence
    with regard to § 10(j). As we developed earlier, § 10(j)
    assigns the Board a “power” but does not mandate the case-
    by-case involvement of the Board as a multi-member organi-
    zation in exercising that power. Thus, with respect to the
    Board’s power to file petitions under § 10(j), it was sufficient
    that a quorum of the Board in 2007 decided to assign deci-
    sions as to individual petitions to the General Counsel. Under
    the distinction explained in New Process Steel, nothing in the
    Board’s quorum requirement would cause the General Coun-
    9910    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    sel’s ability to file § 10(j) petitions to lapse after the Board’s
    membership fell below a quorum.
    IV.   THE MERITS OF THE INJUNCTION
    We now consider the injunction on its merits.
    Section 10(j) permits a district court to grant relief “it
    deems just and proper.” 
    29 U.S.C. § 160
    (j). “To decide
    whether granting a request for interim relief under Section
    10(j) is ‘just and proper,’ district courts consider the tradi-
    tional equitable criteria used in deciding whether to grant a
    preliminary injunction.” McDermott v. Ampersand Publ’g,
    LLC, 
    593 F.3d 950
    , 957 (9th Cir. 2010). Thus, when a
    Regional Director seeks § 10(j) relief, he “must establish that
    he is likely to succeed on the merits, that he is likely to suffer
    irreparable harm in the absence of preliminary relief, that the
    balance of equities tips in his favor, and that an injunction is
    in the public interest.” Winter v. Nat. Res. Def. Council, 
    129 S. Ct. 365
    , 374 (2008). “ ‘[S]erious questions going to the
    merits’ and a balance of hardships that tips sharply towards
    the [Regional Director] can support issuance of a preliminary
    injunction, so long as the [Regional Director] also shows that
    there is a likelihood of irreparable harm and that the injunc-
    tion is in the public interest.” Alliance for the Wild Rockies v.
    Cottrell, 
    632 F.3d 1127
    , 1135 (9th Cir. 2011). In all cases,
    however, the Regional Director “must establish that irrepara-
    ble harm is likely, not just possible, in order to obtain a pre-
    liminary injunction.” 
    Id. at 1131
     (emphasis omitted); see
    Small v. Operative Plasterers’ Int’l Ass’n, Local 200, 
    611 F.3d 483
    , 491 (9th Cir. 2010) (observing that Winter abro-
    gated Miller’s holding that a mere “possibility of irreparable
    harm” can be adequate); McDermott, 
    593 F.3d at 957
     (same).
    “[T]he court must evaluate the traditional equitable criteria
    through the prism of the underlying purpose of section 10(j),
    which is to protect the integrity of the collective bargaining
    process and to preserve the Board’s remedial power.” Scott v.
    Stephen Dunn & Assocs., 
    241 F.3d 652
    , 661 (9th Cir. 2001)
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT              9911
    (internal quotation marks omitted), abrogated on other
    grounds as recognized by McDermott, 
    593 F.3d at 957
    .
    The District Court determined that the Director was likely
    to succeed on the merits and likely to suffer irreparable harm;
    that the balance of hardships tipped in the Director’s favor;
    and that a preliminary injunction would be in the public inter-
    est. The District Court therefore enjoined the Hotel from vari-
    ous activities that, in its view, the Board would likely
    determine, and be affirmed by the Ninth Circuit in so deter-
    mining, are unfair labor practices in violation of § 8(a)(1), (3)
    and (5) of the Act.
    We may reverse the grant of a § 10(j) preliminary injunc-
    tion “only where the district court abused its discretion or
    based its decision on an erroneous legal standard or on clearly
    erroneous findings of fact.” Miller, 
    19 F.3d at 455
    . “Where
    the district court is alleged to have relied on erroneous legal
    premises, review is plenary.” 
    Id.
     (internal quotation marks
    omitted). Applying these standards, we affirm.
    A.   Likelihood of Success on the Merits
    1.    Legal Standards
    On a § 10(j) petition, likelihood of success is a function of
    the probability that the Board will issue an order determining
    that the unfair labor practices alleged by the Regional Direc-
    tor occurred and that this Court would grant a petition enforc-
    ing that order, if such enforcement were sought.14 Cf.
    McDermott, 
    593 F.3d at 964
    . We have explained that when
    the General Counsel, and not the Board, gives final approval
    to file a § 10(j) petition, “we do not presume that the Regional
    Director’s position will ultimately be adopted by the Board.”
    14
    Although the Board’s June 14, 2011 decision, HTH Corp., 356
    N.L.R.B. No. 182 (2011), does not affect our analysis, its conclusions
    strongly support our own.
    9912    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    McDermott, 
    593 F.3d at 964
    ; see also Small, 
    611 F.3d at
    491
    n.3 (expressing hesitation about whether according weight to
    the Regional Director’s decision to file a § 10(l) petition is
    appropriate in evaluating the likelihood of success because
    such petitions are filed without the Board’s approval); United
    Bhd. of Carpenters, 
    409 F.3d at
    1207 n.12 (same). Because
    the Board did not approve the petition here, we do not accord
    significance to the fact of the petition’s filing in evaluating the
    Director’s likelihood of success.
    Nonetheless, in evaluating the likelihood of success, “it is
    necessary to factor in the district court’s lack of jurisdiction
    over unfair labor practices, and the deference accorded to
    NLRB determinations by the courts of appeals.” Miller, 
    19 F.3d at 460
    . It is, after all, the Board and not the courts, which
    “has primary responsibility for declaring federal labor poli-
    cy.” 
    Id.
     Additionally, and for similar reasons, “even on an
    issue of law, the district court should be hospitable to the
    views of the General Counsel, however novel.” 
    Id.
     (internal
    quotation marks omitted). Given these considerations, it
    remains the case—whether or not the Board itself approved
    the filing of the § 10(j) petition—that the regional director in
    a § 10(j) proceeding “can make a threshold showing of likeli-
    hood of success by producing some evidence to support the
    unfair labor practice charge, together with an arguable legal
    theory.” Id.; see also Scott, 241 F.3d at 662 (“[T]o satisfy the
    ‘likelihood of success’ prong of the traditional equitable test,
    [the Director] need only show a better than a negligible
    chance of success.” (internal quotation marks omitted)). But
    if the Director does not show that success is likely, and
    instead shows only that there are serious questions going to
    the merits, then he must show that the balance of hardships
    tilts sharply in his favor, as well as showing that there is irrep-
    arable harm and that the injunction is in the public interest.
    See Alliance for the Wild Rockies, 632 F.3d at 1135.
    2.   Statutory provisions
    The District Court held that the Board would likely deter-
    mine, and be affirmed by the Ninth Circuit in so determining,
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT                   9913
    that the Hotel committed violations of § 8(a)(1), (3) and (5)
    of the Act. Section 8(a)(3) makes it an unfair labor practice
    to “discriminat[e] in regard to hire or tenure of employment
    or any term or condition of employment to encourage or dis-
    courage membership in any labor organization,” 
    29 U.S.C. § 158
    (a)(3); § 8(a)(5) makes it an unfair labor practice for an
    employer “to refuse to bargain collectively with the represen-
    tatives of his employees,” id. § 158(a)(5); and § 8(a)(1) makes
    it an unfair labor practice to “to interfere with, restrain, or
    coerce employees in the exercise” of their rights to organize
    and to bargain collectively. Id. § 158(a)(1). “[A] violation by
    an employer of any of the four subdivisions of Section 8,
    other than subdivision one, is also a violation of subdivision
    one.” 1 HIGGINS, supra, at 87 (internal quotation marks omit-
    ted).
    3.   Underlying facts
    The Hotel is comprised of three business entities: the HTH
    Corporation, the Pacific Beach Corporation, and Koa Man-
    agement, LLC. The three entities are owned by the Hayashi
    family and have officers and managers in common. All three
    entities are named respondents on the § 10(j) petition and are
    a single employer.15
    From January 1, 2007 until December 1, 2007, a fourth
    entity, Pacific Beach Hotel Management, LLC (“PBHM”), a
    subsidiary of an otherwise unrelated hotel chain, the Outrig-
    ger Group, managed the Hotel. Neither the Outrigger Group
    nor PBHM is a respondent in this case or in the proceedings
    before the Board.
    Initially, Robert Minicola and David Mori played the lead
    roles in collective bargaining. Minicola, the Regional Vice
    15
    The Hotel has not challenged on appeal the District Court’s determi-
    nation that the Board will find that the three entities constitute a single
    employer for purposes of the Act.
    9914    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    President of Operations of the HTH Corporation and the
    Pacific Beach Corporation had decision-making authority as
    to all labor-related issues for the Hotel and represented the
    Hotel in the negotiations. David Mori served as the chief
    spokesperson for the Union.
    As previously noted, the Union was certified on August 15,
    2005. Between November 29, 2005 and December 14, 2006,
    the Union and the Hotel engaged in thirty-seven bargaining
    sessions. Throughout these sessions, the Hotel insisted on
    three contractual provisions that the Union charged were so
    objectionable as to evidence the Hotel’s refusal to bargain in
    good faith.
    First, the Hotel insisted on a union recognition clause pro-
    viding:
    The employer has and shall maintain at any and all
    times its sole and exclusive right to unilaterally and
    arbitrarily change, amend, and modify the certified
    bargaining unit . . . and any and all hours, wages,
    and/or other terms and conditions of employment at-
    will [sic].
    The Hotel also proposed a management rights clause specify-
    ing that all terms and conditions of employment, including the
    right “to select, hire, discipline and discharge employees at
    will,” “shall remain vested exclusively in the Hotel.” The
    third objected-to provision set forth the Hotel’s proposed
    grievance procedure: The Hotel insisted that all employee or
    Union complaints be adjudicated by the relevant department
    manager, with appeals to the director of human resources and
    ultimately to the general manager of the Hotel.
    As the ALJ remarked,
    these three proposals [were] all of a piece. The first
    is a demand for [cession] of any control whatsoever
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT                9915
    over the bargaining unit itself. The second sets
    parameters which allow the Union virtually no say in
    the nature of the jobs held by employees which the
    Union represents. The third, [while] facially allow-
    ing for some sort of appeal procedure in the event of
    an on-the-job grievance, actually sets up only an illu-
    sion . . . [as] it all end[s] up in the hands of the gen-
    eral manager . . . .
    In large part because of the Hotel’s insistence on these
    three provisions, the parties had not reached an agreement on
    an initial contract by January 1, 2007. On that date, PBHM
    assumed management of the facility and workforce.
    PBHM, a newly formed subsidiary of the Outrigger Group,
    had entered into a management agreement with the Pacific
    Beach Corporation on September 6, 2006, well after collec-
    tive bargaining with the Union had begun. The management
    agreement required PBHM to hire all current Hotel employees
    at the same jobs, with the same rates of pay and benefits and
    the same seniority dates. PBHM was also to be responsible
    for bargaining with the Union. Under the terms of the man-
    agement agreement, however, the approval of the Hotel’s
    owner was required before PBHM could agree to any contract
    “if the cost to the Hotel under that [contract] exceeds . . .
    $350,000,” or if the contract exceeded one year in duration
    and could not be terminated upon thirty days’ notice.
    Because, as PBHM’s lead negotiator testified, a collective
    bargaining agreement lasting less than a year or terminable
    upon thirty days’ notice would be of limited value and also
    because any plausible agreement lasting longer than a year
    would cost more than $350,000, the management agreement
    effectively gave the Hotel veto power with regard to PBHM’s
    negotiations with the Union. The management agreement also
    required that its terms be kept confidential, so PBHM could
    not inform the Union of the Hotel’s broad reservation of the
    right to reject contracts.
    9916    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    The Union and PBHM reached tentative accord on most
    items and, by the end of June, 2007, were on the verge of
    reaching an overall agreement. PBHM requested Hotel
    approval to propose a contract which it believed the Union
    would accept. PBHM also requested that the Hotel permit it
    to disclose to the Union the Hotel’s reservation of the right to
    reject contracts. When the Hotel did not consent to the con-
    tract or to disclosure, PBHM informed the Hotel that if the
    Hotel continued to refuse to grant its two requests for consent,
    PBHM would believe itself unable to fulfill its obligation to
    bargain in good faith under the Act, and the Hotel would be
    in violation of its covenant to “reasonably consent to . . .
    requests” under its management agreement with PBHM. Four
    days later, the Hotel exercised its right to terminate the man-
    agement agreement with PBHM.
    Effective December 1, 2007, Pacific Beach Corporation
    resumed its management of the facility. The Hotel required all
    employees to reapply for their jobs, and then reinstated most,
    but not all, employees. The District Court found that, out of
    union animus, the Hotel did not continue the employment of
    five bargaining committee members. Also effective December
    1, 2007, the Hotel withdrew recognition from the Union,
    based on Minicola’s observations that attendance at Union
    rallies had declined and unspecified “verbal and written indi-
    cations that the majority of employees did not want to be rep-
    resented by the Union.” From then on, the Hotel refused to
    bargain with the Union. The Hotel also unilaterally granted
    wage increases to certain employees and changed employees’
    work schedules and responsibilities. In July, 2008, the Hotel
    determined that it had received signatures from a majority of
    bargaining unit employees on a petition stating that the
    employees did not desire Union representation and thereupon
    purported to withdraw recognition a second time.
    4.   Likelihood of success: § 8(a)(5)
    The Board will find that an employer has violated its duty
    to bargain under § 8(a)(5) of the Act if the employer has
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT          9917
    failed to bargain in good faith with a union, see Regency Serv.
    Carts, Inc., 
    345 N.L.R.B. 671
    , 671 (2005), or if it has engaged
    in a per se violation of its duty to bargain, regardless of its
    good faith. See, e.g., NLRB v. Katz, 
    369 U.S. 736
    , 743 (1962).
    To determine a party’s good faith, the Board looks to the
    “totality of the [r]espondent’s conduct, both at and away from
    the bargaining table.” Hardesty Co., 
    336 N.L.R.B. 258
    , 259
    (2001) (internal quotation marks omitted), enf’d 
    308 F.3d 859
    (8th Cir. 2002). An employer is not required to “make conces-
    sions or yield any position fairly maintained,” NLRB v.
    Holmes Tuttle Broadway Ford, Inc., 
    465 F.2d 717
    , 719 (9th
    Cir. 1972), but is “obliged to make some reasonable effort in
    some direction to compose his differences with the union.”
    Regency Serv. Carts, Inc., 345 N.L.R.B. at 671 (internal quo-
    tation marks omitted) (emphasis in original). Thus, “mere pre-
    tense at negotiations with a completely closed mind and
    without a spirit of cooperation does not satisfy the require-
    ments” of § 8(a)(5). Id. (internal quotation marks omitted).
    Here, the ALJ determined that the Hotel violated § 8(a)(5)
    by (1) engaging in bad faith bargaining in 2006; (2) engaging
    in bad-faith bargaining through PBHM in 2007; and (3) com-
    mitting per se violations by refusing to bargain and unilater-
    ally changing terms and conditions of employment after it
    withdrew recognition from the Union in December 2007. The
    Regional Director argues, and the District Court concurred,
    that the Board was likely to agree with the ALJ’s § 8(a)(5)
    conclusions and is likely to be upheld in that respect upon
    judicial review. We agree.
    [17] (i) “[T]he Board has held that a proposal that vested
    exclusive control in the employer on the setting of wages,
    while offering little more than the status quo in return, was
    significant evidence of an intent to frustrate agreement, and in
    conjunction with other indicia of bad faith, violated of Section
    8(a)(5) of the Act.” In re Liquor Indus. Bargaining Grp., 
    333 N.L.R.B. 1219
    , 1220 (2001), enf’d 50 F. App’x 444 (D.C. Cir.
    9918    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    2002). More generally, while “the mere insistence upon a
    management-rights clause is not a per se violation of the Act,
    the Board has consistently held that a violation is made out
    when, as here, the employer demands a contractual provision
    which would exclude the labor organization from any effec-
    tive means of participation in important decisions affecting
    the terms and conditions of employment of its members.”
    United Contractors Inc., 
    244 N.L.R.B. 72
    , 73 (1979) (foot-
    note omitted), enf’d 
    631 F.2d 735
     (7th Cir. 1980). Taken
    together, the Hotel’s proposed recognition clause, manage-
    ment rights provision, and one-sided grievance procedure
    would exclude the Union from any meaningful representa-
    tional role. As a result, the Board was likely to find that the
    Hotel’s insistence on these three clauses is exceedingly per-
    suasive evidence of the Hotel’s lack of good faith in bargain-
    ing during 2006.
    [18] In addition, the Regional Director points to, and the
    ALJ and the District Court both found, other evidence of bad-
    faith bargaining. See A-1 King Size Sandwiches, Inc., 
    265 N.L.R.B. 850
    , 858 (1982) (adopting the ALJ’s conclusion that
    an employer bargained in bad faith “primarily” based on the
    employer’s “bargaining proposals and positions,” especially
    “viewed in the light of statements indicative of [the employ-
    er’s] attitude toward collective bargaining”). That evidence
    included Minicola’s repeated reminders that the Union had
    won by a one-vote margin, notwithstanding the fact that the
    Board found that the Hotel had engaged in objectionable con-
    duct preceding the election that quite possibly affected the
    margin of victory. Moreover, the Hotel’s objectionable con-
    duct preceding both elections, as well as its subsequent viola-
    tions of § 8(a)(3) and (5), discussed below, constitute further
    evidence from which the Board could have inferred that the
    Hotel had no intent to resolve its differences with the Union
    in 2006. In light of this evidence and the Hotel’s bargaining
    position, the Director has established a sufficient likelihood
    that the Board would reasonably determine that the Hotel bar-
    gained in bad faith in 2006.
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT                  9919
    [19] (ii) The Hotel also challenges the District Court’s
    finding that the Board was likely to determine that the Hotel
    bargained in bad faith from January 1, 2007 to December 1,
    2007, the period during which PBHM was responsible for
    bargaining with the Union. The Court held the record ade-
    quate to support the conclusion that PBHM acted as an agent
    for the Hotel in collective bargaining and that the Hotel’s can-
    cellation of the management agreement with PBHM, when a
    collective bargaining agreement was imminent, while contin-
    uing to keep its veto authority over a prospective agreement
    secret, constituted bad-faith bargaining. The Regional Direc-
    tor asks us to affirm that holding.16
    The District Court’s reasoning as to this point was compre-
    hensive and persuasive. Rather than repeat and summarize it,
    we append that portion of the District Court’s opinion, with
    some clarifying redactions. See infra Appendix A.
    The Hotel’s three objections to that reasoning are unavail-
    ing. It is true that the ALJ did not hold that PBHM was the
    Hotel’s agent, but he did nonetheless hold that the Hotel was
    the statutory employer during the period of the management
    agreement. The District Court was under no obligation to
    adopt the ALJ’s reasoning wholesale to issue § 10(j) relief.
    The District Court instead needed only to determine whether
    the Board was likely to determine that the Hotel was the statu-
    16
    One initial point bears consideration with regard to this time period:
    It would seem not to matter whether the Hotel engaged in bad-faith bar-
    gaining while the PBHM management agreement was in effect, if it did
    so both before and afterward, as we would affirm the interim bargaining
    order no matter whether the Hotel bargained in bad faith during the PBHM
    management agreement period. The District Court, however, ordered the
    Hotel to “resume contract negotiations and honor all tentative agreements
    entered into from the point [the Hotel] and the Union, and PBHM and the
    Union, left off negotiations on November 30, 2007.” Thus, whether it was
    “just and proper,” 
    29 U.S.C. § 160
    (j), to require the Hotel to resume bar-
    gaining from the tentative agreements reached by PBHM could turn on
    whether the Hotel was a statutory employer when PBHM reached those
    agreements. For that reason, we reach the latter issue.
    9920    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    tory employer, and to be affirmed by this Court in so deter-
    mining.
    The Hotel challenges the District Court’s agency determi-
    nation on its merits only by arguing that that determination
    stands in tension with PBHM’s statement that the HTH Cor-
    poration was no longer the employer and that the District
    Court based its agency finding “simply” on the Hotel’s power
    to cancel the management agreement. Neither of these objec-
    tions bears weight. PBHM’s statements about who the
    employer was did not prevent the Board from answering that
    legal question itself. And the District Court based its agency
    determination on the fact that the Hotel reserved the right, in
    secret, to veto any likely collective bargaining agreement, not
    simply on its power to cancel the management agreement.
    (iii) Finally, as the District Court determined, the Regional
    Director has a strong likelihood of establishing that the Hotel
    violated § 8(a)(5) after December 1, 2007, the date as of
    which the management agreement with PBHM ended. It is
    undisputed that the employer from that date on was the Hotel.
    The Hotel did not resume bargaining at that point. Instead, it
    withdrew recognition from the Union.
    An employer may only withdraw recognition from a union
    based on “objective evidence” of a loss of majority support,
    see Levitz Furniture Co. of the Pac., Inc., 
    333 N.L.R.B. 717
    ,
    723-25 (2001), and, even then, withdraws recognition “at its
    peril,” 
    id. at 725
    . “If the union contests the withdrawal of rec-
    ognition in an unfair labor practice proceeding, the employer
    will have to prove by a preponderance of the evidence that the
    union had, in fact, lost majority support at the time the
    employer withdrew recognition. If it fails to do so, it will not
    have rebutted the presumption of majority status, and the
    withdrawal of recognition will violate Section 8(a)(5).” 
    Id.
    (footnote omitted). The Hotel has not presented any objective
    evidence of a loss of majority support as of December 1,
    2007.
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT          9921
    [20] In any case, “employers may not withdraw recogni-
    tion in a context of serious unremedied unfair labor practices
    tending to cause employees to become disaffected from the
    union.” 
    Id.
     at 717 n.1. The Board was likely to find that the
    Hotel’s bad-faith bargaining in 2006 and 2007, as well the
    § 8(a)(3) violations discussed below, constituted pervasive
    unfair labor practices sufficient to taint any evidence showing
    that the Union had lost the support of employees. Conse-
    quently, the Hotel could not have validly withdrawn recogni-
    tion in December 2007, even if it had had objective evidence
    of the Union’s loss of majority support.
    The Hotel argues that it was able to rebut the presumption
    that the unfair labor practices caused the loss of majority sup-
    port. But it was unlikely to be able to do so. The Hotel did not
    resume bargaining with the Union after the unfair labor prac-
    tices in 2006 and 2007. See Lee Lumber & Bldg. Material
    Corp., 
    322 N.L.R.B. 175
    , 178 (1996) (“In the absence of
    unusual circumstances, . . . [the] presumption of unlawful
    taint can be rebutted only by an employer’s showing that
    employee disaffection arose after the employer resumed its
    recognition of the union and bargained for a reasonable period
    of time without committing any additional unfair labor prac-
    tices that would detrimentally affect the bargaining.”). The
    Board was therefore likely to determine, and to be affirmed
    by this Court in so determining, that the Hotel committed a
    violation of § 8(a)(5) when it withdrew recognition on
    December 1, 2007.
    The July 2008 petition submitted by the Hotel and purport-
    ing to show a loss of majority support for the Union is, as the
    District Court found, irrelevant, both because of the effect of
    the prolonged unfair labor practices on employee support for
    the Union and because the Hotel withdrew recognition on
    December 1, 2007, without any objective evidence of the loss
    of union support, and refused to bargain with the Union there-
    after. Whether the Hotel purported to withdraw recognition a
    9922    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    second time, and whether it had a basis for doing so, simply
    does not matter.
    Additionally, if the Board found that the withdrawal of rec-
    ognition was improper, it would likely also have found that
    the Hotel committed a per se violation of § 8(a)(5) by unilat-
    erally changing the terms and conditions of bargaining unit
    employees’ employment after unlawfully withdrawing recog-
    nition from the Union. See Local Joint Exec. Bd. v. NLRB,
    
    540 F.3d 1072
    , 1075 (9th Cir. 2008).
    5.   Likelihood of success: § 8(a)(3)
    [21] The District Court determined that the Director was
    likely to succeed in showing that the Hotel violated § 8(a)(3)
    by terminating five Union leaders, all long-term Hotel
    employees and all members of the Union’s negotiation team,
    when it reclaimed management responsibilities from PBHM.
    The Hotel limits its challenge to this determination to arguing
    that the District Court applied the wrong legal standard, main-
    taining the Hotel did not terminate but only refused to rehire
    the employees on December 1, 2007. The theory is that
    PBHM was a distinct employer from the Hotel, so that the lat-
    ter was hiring afresh as of December 2007.
    The District Court found that the Hotel decided not to con-
    tinue the employment of the five long-term employees
    because of their leadership roles in the Union. The Hotel does
    not now argue that this finding was clearly erroneous. Refus-
    ing to hire new employees because of their prior union
    involvement is as much an unfair labor practice as is firing
    current employees for that reason. See FES (A Division of
    Thermo Power), 
    331 N.L.R.B. 9
    , 12 (2000), enf’d 
    301 F.3d 83
    (3d Cir. 2002); id. at 12-13 (applying the discriminatory dis-
    charge framework from Wright Line, 
    251 N.L.R.B. 1083
    (1980), to refusal-to-hire violations). While the General
    Counsel must in the hiring context prove “that there was at
    least one available opening for the applicant,” 
    id. at 12
    , the
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT                     9923
    Hotel does not contest that there were such openings here. As
    to union animus, the burden is on the Regional Director to
    demonstrate its role in motivating the employment decision
    with regard to either a termination or a failure to hire, and
    both the ALJ and District Court found that the Regional
    Director had met that burden for each of the five excluded
    employees.17
    B.    Likelihood of Irreparable Harm
    Small rejected, as inconsistent with Winter, Miller’s hold-
    ing that a court may presume irreparable harm in § 10(j) and
    § 10(l) cases if a likelihood of success on the merits in the
    unfair labor practice proceeding is established. 
    611 F.3d at 490, 494
    . At the same time, Small retained from Miller, as
    consistent with Winter, the underlying irreparable injury stan-
    dard applicable in cases such as this one: In the context of the
    NLRA, “permit[ting an] alleged unfair labor practice to reach
    fruition and thereby render meaningless the Board’s remedial
    authority is irreparable harm.” 
    Id. at 494
     (quoting Miller, 
    19 F.3d at 460
    ) (alteration in original). In other words, while a
    district court may not presume irreparable injury with regard
    to likely unfair labor practices generally, irreparable injury is
    established if a likely unfair labor practice is shown along
    with a present or impending deleterious effect of the likely
    unfair labor practice that would likely not be cured by later
    relief. In making the latter determination, inferences from the
    nature of the particular unfair labor practice at issue remain
    available.
    For instance, with regard to the central statutory violations
    17
    As the above discussion of PBHM’s status as an agent suggests, we
    do not mean to indicate that the Hotel did not remain the statutory
    employer throughout. If it did remain the employer, then the District Court
    was correct to apply the test for terminations, not refusals to hire. Our
    point in the text is only that this consideration does not matter for purposes
    of the § 8(a)(3) analysis.
    9924    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    likely established here, violations of § 8(a)(5), continuation of
    that unfair labor practice, failure to bargain in good faith, has
    long been understood as likely causing an irreparable injury
    to union representation. The Board long ago observed that:
    Employees join unions in order to secure collective
    bargaining. Whether or not the employer bargains
    with a union chosen by his employees is normally
    decisive of its ability to secure and retain its mem-
    bers. Consequently, the result of an unremedied
    refusal to bargain with a union, standing alone, is to
    discredit the organization in the eyes of the employ-
    ees, to drive them to a second choice, or to persuade
    them to abandon collective bargaining altogether.
    Karp Metal Prods. Co., 
    51 N.L.R.B. 621
    , 624 (1943) (foot-
    note omitted). As the Seventh Circuit has likewise noted,
    “[a]s time passes, the benefits of unionization are lost and the
    spark to organize is extinguished. The deprivation to employ-
    ees from the delay in bargaining and the diminution of union
    support is immeasurable.” NLRB v. Electro-Voice, Inc., 
    83 F.3d 1559
    , 1573 (7th Cir. 1996). Consequently, even if the
    Board subsequently orders a bargaining remedy, the union is
    likely weakened in the interim, and it will be difficult to recre-
    ate the original status quo with the same relative position of
    the bargaining parties. That difficulty will increase as time
    goes on. And the Board generally does not order retroactive
    relief, such as back pay or damages, to rank-and-file employ-
    ees for the loss of economic benefits that might have been
    obtained had the employer bargained in good faith. See 2
    HIGGINS, supra, at 2775. Thus, a finding of likelihood of suc-
    cess as to a § 8(a)(5) bad-faith bargaining violation in particu-
    lar, along with permissible inferences regarding the likely
    effects of that violation, can demonstrate the likelihood of
    irreparable injury, absent some unusual circumstance indicat-
    ing that union support is not being affected or that bargaining
    could resume without detriment as easily later as now.
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT           9925
    In a similar vein, “the discharge of active and open union
    supporters risks a serious adverse impact on employee interest
    in unionization and can create irreparable harm to the collec-
    tive bargaining process.” Pye v. Excel Case Ready, 
    238 F.3d 69
    , 74 (1st Cir. 2001) (internal quotation marks omitted); see
    
    id.
     (observing that other employees’ “fear of employer retalia-
    tion after the firing of union supporters is exactly the ‘irrepa-
    rable harm’ contemplated by § 10(j)”). For these reasons, a
    likelihood of success as to a § 8(a)(3) violation with regard to
    union activists that occurred during contract negotiations or
    an organizing drive largely establishes likely irreparable
    harm, absent unusual circumstances.
    [22] We have already determined that the District Court
    did not abuse its discretion or make any errors of law in find-
    ing that the Director had established a likelihood of success
    with regard to the bad-faith bargaining and the exclusion of
    union leaders from the workforce violations. The same evi-
    dence and legal conclusions, along with permissible infer-
    ences regarding the likely interim and long-run impact of the
    unfair labor practices that were likely to be found, preclude
    the conclusion that the District Court abused its discretion in
    finding a likelihood of irreparable harm.
    The Hotel’s primary argument as to why the Director can-
    not show irreparable harm is the contention that the Director’s
    delay in filing the § 10(j) petition is fatal to his claim that
    interim relief is necessary to prevent irreparable harm. The
    first unfair labor practice charge was filed on January 22,
    2007; the Director issued an administrative complaint on
    August 29, 2008, covering many incidents, including the
    withdrawal of recognition and the exclusion of the five union
    leaders from the workplace, that occurred long after the initial
    charge was filed. The Director filed the § 10(j) petition on
    January 7, 2010, after the ALJ decision upholding the Direc-
    tor’s various unfair labor practice allegations. By awaiting the
    ALJ decision, the Director made the District Court’s task in
    evaluating the propriety of interim relief much easier, and
    9926    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    much more likely to be carried out accurately, as the Court
    had the benefit of a record developed over thirteen days of
    hearings and also of the ALJ’s legal analysis and conclusions.
    For its excessive delay contention, the Hotel relies on
    McDermott, in which this Court held that a district court did
    not abuse its discretion in ruling that, given a thirteen- to
    seventeen-month delay between the alleged occurrence of
    unfair labor practices and the filing of a § 10(j) petition, “an
    interim order . . . [was unlikely to] provide any genuine reas-
    surance to employees beyond that provided by a final Board
    order.” McDermott, 
    593 F.3d at 965
     (internal quotation marks
    omitted). At the same time, McDermott recognized that
    “delay by itself is not a determinative factor in whether the
    grant of interim relief is just and proper.” 
    Id.
     (internal quota-
    tion marks omitted). Rather, “[t]he factor of delay is only sig-
    nificant if the harm has occurred and the parties cannot be
    returned to the status quo or if the Board’s final order is likely
    to be as effective as an order for interim relief.” 
    Id.
     (internal
    quotation marks omitted).
    McDermott’s observation regarding the effect of delay in
    that case is inapposite for several reasons. First, with respect
    to its conclusion that the delay in seeking relief properly sup-
    ported the finding of a lack of irreparable harm, because of
    the First Amendment interests the employer in that case
    invoked, McDermott was applying a special, heightened stan-
    dard. See McDermott, 
    593 F.3d at 958
     (adopting and applying
    United Bhd. of Carpenters’s conclusion that “in light of the
    risk that protected First Amendment speech would be
    restrained . . . ‘only a particularly strong showing of likely
    success, and of harm . . . as well, could suffice’ ” (quoting
    United Bhd. of Carpenters, 
    409 F.3d at
    1208 n.13) (second
    ellipsis in original) (emphasis added)); id. at 964 (“In light of
    the First Amendment issues in this case, we conclude that the
    district court did not abuse its discretion by declining to grant
    preliminary relief. The standard for such relief is a tough one,
    taking into account [United Bhd. of Carpenters’s] increased
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT           9927
    demands.” (emphasis added)). As the District Court in this
    case noted, no First Amendment interests are here at stake,
    and viewed under ordinary irreparable injury standards, “[a]s
    more time passes, it becomes less likely that these discharged
    employees will return to the Hotel,” undermining the union-
    ization effort. Norelli v. HTH Corp., 
    699 F. Supp. 2d 1176
    ,
    1203-04 (D. Haw. 2010).
    Second, in this case, the record provided specific support
    for the conclusions that there would likely be irreparable harm
    beyond that which could be remedied once the Board had
    ruled, and that interim relief was more likely to curb the ongo-
    ing unfair labor practices than subsequent relief. For one
    thing, the former employees whose interim reinstatement the
    Regional Director sought were members of the bargaining
    committee. Having current employees on the bargaining com-
    mittee in daily contact with the other employees and therefore
    able to judge the impact of various bargaining proposals on
    their constituencies is likely to affect not only the other
    employees’ willingness to adhere to union support, but also
    the interim bargaining process itself. For that reason, the
    § 8(a)(3) relief in this case is intimately tied up with the
    interim bargaining order.
    Moreover, here, the passage of time did not entirely pre-
    clude the District Court’s ability to restore the status quo. The
    Union was willing to represent the employees and to bargain
    on their behalf under an interim bargaining order. Recogniz-
    ing and bargaining in good faith during the period the Board
    is considering the exceptions to the ALJ’s ruling both would
    directly restore to the employees the advantages of day-to-day
    union representation during that period, advantages that can-
    not be restored retroactively, and also could lead to the con-
    clusion of a collective bargaining agreement, with
    concomitant employee benefits, during the interim period.
    Thus, the interim relief ordered immediately remedied statu-
    tory injuries as to which no retroactive relief is available.
    9928    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    Finally, of course, there is the fact that McDermott was
    reviewing denial of interim relief under an abuse-of-discretion
    standard, while we are reviewing the grant of relief under that
    same standard.
    [23] For each of these independent reasons, we conclude
    that the District Court was not required to deny relief because
    the Regional Director awaited the ALJ’s decision before filing
    the § 10(j) petition.
    C.   Balance of the Hardships
    The District Court determined that the balance of the hard-
    ships weighed in the Director’s favor. The primary hardship
    the Hotel had advanced was the protection of its employees
    from the Union, which, the Hotel claims, the employees did
    not want to represent them. The Hotel renews that hardship
    argument before us. We also reject it.
    “[I]n considering the balance of hardships, the district court
    must take into account the probability that declining to issue
    the injunction will permit the alleged[ ] unfair labor practices
    to reach fruition and thereby render meaningless the Board’s
    remedial authority.” Miller, 
    19 F.3d at 460
    . For that reason,
    the District Court’s determination that the Regional Director
    had shown likely irreparable harm to the collective bargaining
    process meant that there was also considerable weight on his
    side of the balance of the hardships.
    The Hotel’s asserted countervailing interest, its employees’
    alleged desire not to be represented by the Union, fails to out-
    weigh the hardships advanced by the Regional Director. As an
    initial matter, there is “nothing unreasonable in giving a short
    leash to the employer as vindicator of its employees’ organi-
    zational freedom.” Auciello Iron Works, Inc. v. NLRB, 
    517 U.S. 781
    , 790 (1996). For that reason, courts generally are
    skeptical about an employer’s claimed “benevolence as its
    workers’ champion against their certified union.” Id.; see also
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT          9929
    Fall River Dyeing & Finishing Corp. v. NLRB, 
    482 U.S. 27
    ,
    50 n.16 (1987).
    [24] More importantly, by establishing a strong likelihood
    of success on the merits of the alleged § 8(a)(3) and (5) viola-
    tions, the Regional Director showed that it was more likely
    than not that the Hotel had committed pervasive unfair labor
    practices. As the Board’s case law indicates, in the context of
    pervasive unremedied unfair labor practices, it becomes
    impossible to know if employees truly no longer want repre-
    sentation by the elected union, as their expressed preferences
    are generally tainted by the effects of the unfair labor prac-
    tices. See Lee Lumber, 322 N.L.R.B. at 177-78. In all likeli-
    hood, it will only be possible accurately to gauge union
    support after the Hotel ceases and desists from its allegedly
    unfair labor practices and resumes bargaining with the Union
    —precisely the relief the Regional Director sought and the
    District Court granted. The District Court, therefore, had no
    reason to give significant weight to the Hotel’s assertions con-
    cerning support for the Union, and so properly assessed the
    balance of the hardships.
    D.   Public Interest
    “In § 10(j) cases, the public interest is to ensure that an
    unfair labor practice will not succeed because the Board takes
    too long to investigate and adjudicate the charge.” Miller, 
    19 F.3d at 460
    . Ordinarily then, when, as here, the Director
    makes a strong showing of likelihood of success and of likeli-
    hood of irreparable harm, the Director will have established
    that preliminary relief is in the public interest.
    The Hotel contests that conclusion as applied here, object-
    ing that the Director “was literally asking the District Court
    to grant the Board’s remedy, before the Board itself even has
    a chance to decide the case.” But, in most bad-faith bargain-
    ing cases, a § 10(j) remedy will be identical, or at least very
    similar, to the Board’s final order. This precept follows from
    9930     FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    the nature of interim § 10(j) relief and of the Board’s final
    remedial power.
    [25] The purpose of § 10(j) relief is “to preserve the
    Board’s remedial power.” Miller, 
    19 F.3d at 459-60
    . The task
    of the Board in devising a final remedy is “to take measures
    designed to recreate the conditions and relationships that
    would have been had there been no unfair labor practice.”
    Franks v. Bowman Transp. Co., 
    424 U.S. 747
    , 769 (1976)
    (internal quotation marks omitted). Very often, the most
    effective way to protect the Board’s ability to recreate such
    relationships and restore the status quo will be for the court
    itself to order a return to the status quo. See Scott, 241 F.3d
    at 660 (observing that “injunctive relief under section 10(j) is
    intended to preserve the status quo pending final action by the
    Board”). So the District Court cannot have abused its discre-
    tion just because it entered an order similar to the one the
    Board was likely to enter in this case.18 We have thus no rea-
    son to disturb the District Court’s determination that injunc-
    tive relief was in the public interest.
    CONCLUSION
    For the foregoing reasons, the District Court’s injunction is
    AFFIRMED.
    18
    We also decline the Hotel’s invitation to follow Eisenberg v. Hartz
    Mountain Corp., 
    519 F.2d 138
    , 144 (3d Cir. 1975), which imposed a six-
    month temporal limitation on all § 10(j) relief (subject, in certain circum-
    stances, to extension). No other court of appeals has followed Eisenberg
    in imposing such a rule. Cf. Pye v. Teamsters Local Union No. 122, 
    61 F.3d 1013
    , 1025 (1st Cir. 1995) (“abjur[ing] the Third Circuit’s rule” and
    leaving the decision to impose a temporal limitation on § 10(j) relief
    within “the sound discretion of the district court”). We have never adopted
    a per se rule imposing a fixed temporal limitation on all § 10(j) relief.
    Under no requirement to impose such a limitation, the District Court did
    not abuse its discretion in declining to do so in this case.
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT         9931
    APPENDIX A
    Appended Excerpt of Norelli v. HTH Corp., 
    699 F. Supp. 2d 1176
     (D. Haw. 2010)
    c. Whether Respondents engaged in bad faith bargaining
    from January 2007 through November 2007
    In September 2006, Koa and PBHM signed the [Manage-
    ment Agreement (the “MA”)] for PBHM to take over “the
    marketing, operation, direction, Hillsborough maintenance,
    management, and supervision of all portions of the Hotel,”
    effective January 2007. Both Respondents and PBHM told the
    Union that in light of the MA, PBHM and not Respondents
    was the employer of the Hotel employees. Despite these
    assertions, the ALJ found that “although Respondents con-
    tractually delegated PBHM to run the Hotel and to bargain
    collectively with the Union on Respondents’ behalf [during
    this time], at no time were Respondents relieved of the obliga-
    tion to bargain in good faith with the Union” and that Respon-
    dents engaged in bad faith bargaining during this time period.
    The ALJ came to this conclusion by finding that Respon-
    dents were the “true employer” of the Hotel staff during this
    time. Petitioner has filed a limited cross-appeal requesting
    that the Board make an explicit finding of agency. As
    explained below, the court does not reach whether the Board
    will determine that Respondents were the “true employer,”
    but rather concludes that the Board will find and the Ninth
    Circuit will affirm that PBHM was an agent of Respondents
    for purposes of negotiating a [collective bargaining agreement
    (“CBA”)], and that Respondents never intended to permit
    PBHM to enter into a CBA with the Union.
    i. Respondents’ and PBHM’s principal/agent relationship as
    to CBA negotiations
    An “employer” for purposes of the NLRA “includes any
    person acting as an agent of an employer, directly or indirect-
    9932    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    ly.” 
    29 U.S.C. § 152
    (2). The NLRA further provides that “[i]n
    determining whether any person is acting as an ‘agent’ of
    another person so as to make such other person responsible
    for his acts, the question of whether the specific acts per-
    formed were actually authorized or subsequently ratified shall
    not be controlling.” 
    29 U.S.C. § 152
    (13).
    The Board applies common law agency principles to deter-
    mine the existence of an agency relationship. See, e.g., Tyson
    Fresh Meats, Inc., 
    343 N.L.R.B. 1335
    , 1336 (2004). An
    agency relationship may therefore exist between a purported
    agent and principal where the agent possesses either actual or
    apparent authority to act on the principal’s behalf: “actual
    authority refers to the power of an agent to act on his princi-
    pal’s behalf when that power is created by the principal’s
    manifestation to him. That manifestation may be either
    express or implied.” 
    Id.
     (quoting Commc’n Workers Local
    9431 (Pacific Bell), 
    304 N.L.R.B. 446
     n.4 (1991)).
    Petitioner has presented evidence from which the Board
    will likely conclude and the Ninth Circuit will affirm that
    PBHM was simply acting as Respondents’ agent for purposes
    of negotiating the CBA. Respondents, through the MA, gave
    PBHM express authority to negotiate a CBA with the Union.
    Despite the MA’s assertion that PBHM “is an independent
    contractor, and nothing in this Agreement or in the relation-
    ship of [Respondents and PBHM] shall constitute a partner-
    ship, joint venture, agency, or other similar relationship,”
    Respondents retained ultimate control over the negotiations.
    Specifically, the MA required PBHM to obtain Respondents’
    approval prior to entering into any CBA:
    Operator shall obtain Owner’s approval of any
    agreement affecting the Hotel (i) the term of which
    is more than one (1) year in length and that cannot
    be terminated upon thirty (30) days’ notice by Oper-
    ator, or (ii) if the cost to the Hotel under that agree-
    ment exceeds Three Hundred Fifty Thousand Dollars
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT                 9933
    ($350,000.00), or (iii) that extends beyond the Initial
    Term and cannot be terminated upon thirty (30)
    days’ notice by Operator.
    Section 3.2.c of the MA effectively gave Respondents veto
    power of any proposed CBA between PBHM and the Union-
    given the long term negotiations with the Union, PBHM was
    not interested in a CBA for less than one year because it
    “would hardly give [PBHM] . . . a[ ] stable period to develop
    relationships with the employees and [ ] to operate the busi-
    ness.” Additionally, a one-year collective bargaining agree-
    ment would cost the Hotel more than $350,000, requiring
    Respondents’ approval.
    Indeed, despite Minicola’s and PBHM’s outward state-
    ments to the Union that HTH was no longer operating the
    Hotel, PBHM worked under the assumption that Koa—as the
    Hotel’s “owner”—must approve any CBA between PBHM
    and the Union. For example, both Wilinsky and Rand sent let-
    ters to Respondents, seeking Koa’s approval on proposals to
    the Union, which PBHM believed would result in a CBA.
    Wilinsky explained to [the Hotel’s owner] that “[PBHM] can-
    not bargain in good faith with the Union until and unless [it]
    receive[s] [Koa’s] consent.”3
    In opposition, Respondents suggest that the MA was a
    “typical management agreement” under which PBHM oper-
    ated as the owner and employer at the Hotel. The court rejects
    this argument. While Respondents may have hoped to create
    the appearance that PBHM was . . . the . . . employer, the MA
    was not “typical” but rather allowed Respondents to retain
    control over the Union negotiations, creating the principal-
    agent relationship described above.
    3
    The court’s conclusion is confirmed by Respondents’ decision to can-
    cel the MA only four days after PBHM sought their approval of contract
    terms that would have resulted in a CBA. As explained below, it appears
    that Respondents canceled the MA to prevent the Union from learning of
    its role in negotiations.
    9934    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    In sum, the record supports that while Respondents cer-
    tainly attempted to distance themselves from the Union nego-
    tiations by using PBHM as the “official” operator of the
    Hotel, PBHM’s control was illusory because Respondents
    held the ultimate authority over Union negotiations. Accord-
    ingly, the Board will likely find and the Ninth Circuit will
    affirm that the MA did not vest to PBHM Respondents’
    employer status but instead merely made PBHM Respon-
    dents’ agent.
    The court recognizes that the ALJ did not make an agency
    determination and instead found that Respondents were the
    “true” employers of the Hotel employees. The ALJ’s “true
    employer” language does not change the court’s analysis.
    Petitioner alleged in its Conformed Complaint that PBHM
    served as Respondents’ agent within the meaning of 
    29 U.S.C. § 152
    (13) for the purposes of engaging in collective
    bargaining with the Union and operating the Hotel. Further,
    implicit in the ALJ Decision’s finding that Respondents were
    the true employers is that PBHM was acting on Respondents’
    behalf during this time period. Given that Petitioner seeks a
    limited cross-appeal seeking an agency determination, the
    court finds that on the record presented, the Board will likely
    make and the Ninth Circuit will affirm this determination.
    ii. Respondents’ bad faith bargaining during this time period
    On August 3, 2007—four days after PBHM sought its
    approval of contract terms which would have resulted in a
    CBA—Respondents canceled the MA with PBHM. Based
    upon the record presented, Petitioner asserts that Respondents
    never had any intention of allowing PBHM to enter into a
    CBA with the Union and canceled the MA to prevent Respon-
    dents from having to reject the proposed CBA and/or disclose
    its veto power over the CBA to the Union. The court agrees
    that the Board will find and the Ninth Circuit will affirm that
    Respondents engaged in bad faith bargaining over this time
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT        9935
    period by having PBHM negotiate with the Union while at the
    same time knowing that it would never approve any CBA.
    The evidence establishes that Minicola clearly did not want
    a CBA with the Union, much less any Union presence at the
    Hotel. During initial negotiations, Minicola told PBHM that
    [the Hotel’s owner] was upset with the employees for voting
    for the Union, and that Respondents would move to decertify
    the Union at the end of the certification year in 2006. Rather
    than move to decertify the Union, Respondents entered into
    the MA with PBHM, who was well aware that Minicola was
    “very unhappy” with the concept of a CBA.
    The terms of the MA required that it be kept confidential,
    and the Union was not aware of its language giving Respon-
    dents veto power over a CBA. PBHM nonetheless negotiated
    with the Union and by June 29, 2007, the parties were close
    to entering into an agreement with only “a few issues out-
    standing.” Respondents were aware that a CBA was imminent
    —PBHM told Respondents of this progress and even
    requested direction given its understanding that Respondents
    did not want a finalized CBA. By letter dated July 30, 2007,
    PBHM asked Koa, as “owner” under the MA, to consent to
    PBHM providing the MA’s contract approval provision to the
    Union (along with other provisions as well), and that Koa
    approve 11 specific proposals for the CBA. PBHM explained
    that if it made these 11 proposals, the Union would accept
    them and the parties would likely enter into a CBA. PBHM
    further asserted that if Respondents refused to consent,
    Respondents would be in breach of the MA and that PBHM
    would no longer be able to bargain in good faith with the
    Union. PBHM received no response from Respondents.
    Instead, on August 3, 2007, Respondents terminated the MA,
    effective December 30, 2007.
    At the time Respondents canceled the MA, they were faced
    with some hard decisions regarding PBHM and the Union.
    They could reject PBHM’s proposals and allow PBHM to dis-
    9936    FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    close the MA’s contract approval provision to the Union, but
    then the Union would know of Respondents’ involvement and
    authority on Union negotiations. Alternatively, Respondents
    could have approved the proposals, but then the Union would
    be on the verge of a CBA—the very result Respondents had
    been trying to avoid since negotiations began in 2006. The
    third alternative—to cancel the MA and purport to take over
    the Hotel operations as a new employer—avoided both of
    these results. Given the facts presented, it appears that
    Respondents canceled the MA simply to derail the final stages
    of the Union negotiations and prevent the Union from learn-
    ing of its role in negotiations over this time period. Accord-
    ingly, the Board will likely find and the Ninth Circuit will
    affirm that Respondents engaged in bad faith bargaining dur-
    ing this time period.
    In opposition, Respondents provide no explanation why
    they terminated the MA except for a vague reference to “per-
    formance issues,” which, from the record, may refer to
    PBHM’s delay in installing Stellex, PBHM’s failure to keep
    occupancy rates up, PBHM’s changes to projected perfor-
    mance figures, disputes over fees and commissions, and the
    fish deaths in the aquarium. The record does not support that
    these excuses are valid reasons for terminating the MA.
    As to the delay in installing Stellex, Outrigger’s proprietary
    property management and reservation system, it was eventu-
    ally installed and properly operating within the Hotel by May
    2007. Further, Minicola had worked at Outrigger for 15 years
    and was familiar with the Stellex system, such that he should
    have anticipated that installing Stellex takes significant effort.
    As to PBHM’s projected occupancy rate and performance
    figures, Respondents asserted before the ALJ that PBHM did
    not perform up to par with its projections, yet Minicola testi-
    fied that the decline in the Hotel’s occupancy was in part due
    to the decline in the tourism economy. Moreover, Wallace
    explained during the time PBHM was managing the Hotel,
    FRANKL v. HTH CORPORATION; KOA MANAGEMENT         9937
    profits “were in excess of [PBHM’s] projections and consid-
    erably in excess of the prior year’s operations.”
    As for PBHM’s changes to projected performance figures,
    the MA required PBHM to submit a formal budget to Respon-
    dents within 90 days of the start of its management of the
    Hotel. PBHM submitted a preliminary budget in a timely
    fashion, and Respondents approved PBHM’s request to
    extend the time allotted to PBHM to prepare a formal budget,
    allowing PBHM enough time to acquire knowledge of how
    the property operates. Once PBHM finished its formal budget,
    PBHM revised its projected performance figures to take into
    account the formal budget. These changes were therefore in
    line with basic budgeting principles and not a basis for termi-
    nation.
    Regarding the fees and commissions, Respondents and
    PBHM had disagreements regarding the 1.5% chain service
    fee PBHM proposed to charge Respondents for providing ser-
    vices to the Hotel and the 2.5% commission Respondents
    wanted to charge PBHM on all Japanese wholesale business.
    The parties resolved these disputes, however, with Respon-
    dents accepting the 1.5% charged to the Hotel after PBHM
    explained the basis for this charge, and PBHM continuing to
    pay the 2.5% commission to Respondents.
    Finally, as for the dead fish in the aquarium, it is unclear
    whether Respondents truly assert this problem as a reason for
    terminating the MA because Minicola did not identify it as a
    reason in his affidavit before the ALJ. In any event, PBHM
    apparently addressed this issue by meeting with the chief
    engineer to stabilize the oxygen in the tank and replacing the
    dead fish.
    In sum, Respondents’ alleged reasons for terminating the
    MA are unsupported. The Board will likely find and the Ninth
    Circuit will affirm that Respondents engaged in bad faith bar-
    gaining by allowing PBHM to negotiate with the Union while
    9938   FRANKL v. HTH CORPORATION; KOA MANAGEMENT
    at the same time knowing that they would never approve a
    CBA, and then canceling the MA simply to derail the negotia-
    tions between the Union and PBHM and hide their position as
    Hotel employer.
    

Document Info

Docket Number: 10-15984

Citation Numbers: 650 F.3d 1334

Filed Date: 7/13/2011

Precedential Status: Precedential

Modified Date: 1/12/2023

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