Opinion
No. 15-70520 No. 15-70630
06-13-2017
SPACE NEEDLE, LLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SPACE NEEDLE, LLC, Respondent.
NOT FOR PUBLICATION
NLRB Nos. 19-CA-098988 19-CA-107024 19-CA-098936 19-CA-098908 19-CA-108459
National Labor Relations Board MEMORANDUM On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board Argued and Submitted June 8, 2017 Seattle, Washington Before: McKEOWN, CALLAHAN, and IKUTA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Space Needle, LLC petitions for review, and the National Labor Relations Board (the "Board") cross-petitions for enforcement, of the Board's order finding that Space Needle violated Sections 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3) and (1), by failing to recall servers Julia Dube and Tracey McCauley from layoff. We have jurisdiction under 29 U.S.C. § 160(e) and (f), and we affirm.
We are required to uphold the Board's findings of fact if they are supported by substantial evidence. E. Bay Auto. Council v. N.L.R.B., 483 F.3d 628, 633 (9th Cir. 2007). "[I]nferences drawn by the Board should not be replaced by our own, if the record supplies a reasonable basis to support those drawn by the Board." N.L.R.B. v. Winkel Motors, Inc., 443 F.2d 38, 40 (9th Cir. 1971) (per curiam).
The standard of review drives our decision here. Based on the ALJ's credibility determinations, the temporal sequence of events, the conduct of the parties, and the corroborating testimony, substantial evidence supported the ALJ's conclusions that the Board made its prima facie showing that Dube's protected activity was a substantial or motivating factor in the failure to recall Dube and McCauley and that Space Needle failed to demonstrate that it would have taken the same action regardless of Dube's union activity. Frankl ex rel. N.L.R.B. v. HTH Corp., 693 F.3d 1051, 1062 (9th Cir. 2012).
Accordingly, Space Needle's petition for review is DENIED and the Board's cross-application for enforcement is GRANTED with respect to the matters addressed in this disposition.
On June 6, 2017, we granted the parties' joint motion to dismiss all other issues raised in this appeal. --------
Each party shall pay its own costs on appeal.