Altura Communication Solutions, LLC v. National Labor Relations Board

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALTURA COMMUNICATION
SOLUTIONS, LLC,
Petitioner,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent,
IBEW LOCAL 21,
Intervenor.
No. 20-71522
NLRB No. 13-CA-174605
MEMORANDUM*
NATIONAL LABOR RELATIONS
BOARD,
Petitioner,
v.
ALTURA COMMUNICATION
SOLUTIONS, LLC,
Respondent.
No. 20-71705
NLRB No. 13-CA-174605
On Petition for Review of an Order of the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAY 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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National Labor Relations Board
Argued and Submitted May 7, 2021
Seattle, Washington
Before: BOGGS,** BERZON, and MURGUIA, Circuit Judges.
Altura Communications Solutions, LLC (Altura) appeals the National Labor
Relations Board’s (NLRB or the Board) finding that Altura did not bargain in good
faith with the International Brotherhood of Electrical Workers Local 21 (the Union).
“We must affirm the NLRB if its findings of fact are supported by substantial
evidence and it correctly applied the law.” Int’l All. of Theatrical Stage Emps., Local
15 v. NLRB (IATSE Local 15), 957 F.3d 1006, 1013 (9th Cir. 2020) (citation
omitted). We hold that the Board’s decision is supported by substantial evidence,
and we affirm.
1. The NLRB properly considered the totality of the parties’ conduct,
including, but not limited to, the contract proposals. The Administrative Law Judge
(ALJ) recounted the bargaining history in detail, including comments made,
proposals advanced, provisions agreed upon and refused, and bargaining behavior.
Having done so, the ALJ found, and the Board affirmed, that Altura prematurely
declared bargaining impasse; declined to schedule in-person bargaining sessions
** The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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(departing from the parties’ past negotiating practice); set impermissible
preconditions on in-person bargaining by requiring written proposals ahead of
scheduled sessions; and repeatedly dismissed the Union’s proposals without
discussion. The ALJ and the Board held that this conduct, together with the nature
of Altura’s proposals at the time impasse was declared, evidenced bad faith. The
Board declined to adopt the ALJ’s conclusion that Altura’s unilateral
implementation of contract terms evidenced bad faith. In basing its decision on the
ALJ’s factual findings and these objective factors, the Board properly considered
“the totality of the parties’ conduct.” Sparks Nugget, Inc. v. NLRB, 968 F.2d 991,
994 (9th Cir. 1992) (citation omitted).
2. The Board’s conclusion was supported by substantial evidence. The NLRB
may infer bad faith where an employer’s contract proposals “would exclude the labor
organization from any effective means of participation in important decisions
affecting the terms and conditions of employment of its members.” Frankl v. HTH
Corp., 650 F.3d 1334, 1359 (9th Cir. 2011) (quoting United Contractors Inc., 244
N.L.R.B. 72, 73 (1979), enforced, 631 F.2d 735 (7th Cir. 1980)). Here, Altura’s
proposals granted the company unilateral control over terms and conditions of
employment that had previously been governed by the collective bargaining
agreement, including several categories of benefits. The proposals also allowed
Altura unilateral authority to reassign any and all bargaining-unit work to non-union

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employees or contractors and excluded the company’s expanded proposed
management rights as well as the benefits no longer covered by the agreement from
the contract’s grievance and arbitration procedures.
The Board’s conclusion that the degree of control Altura sought in these
proposals indicates that Altura “lack[ed] a serious intent to . . . reach an acceptable
common ground,” IATSE Local 15, 957 F.3d at 1016 (alteration omitted) (quoting
Liquor Indus. Bargaining Grp., 333 N.L.R.B. 1219, 1220 (2001)), is a permissible
inference from the record, see Kitsap Tenant Support Servs., Inc., 366 N.L.R.B. No.
98, slip op. at *11 (2018) (citing Regency Serv. Carts, Inc., 345 N.L.R.B. 671, 675,
722 (2005)). This conclusion is further supported by Altura’s expressed goal of
treating bargaining unit employees “equally” with employees who are not union
represented and by its broad new wording for the proposed management-rights
clause, including the reservation of “all rights and authority possessed or exercised
by the Company prior to the certification of the Union.” Considering the totality of
the parties’ conduct, including the contract proposals, substantial evidence supports
the NLRB’s conclusion that Altura failed to bargain in good faith, in violation of §§
8(a)(5) and 8(a)(1) of the National Labor Relations Act. 29 U.S.C. § 158(a).
PETITION DENIED and ORDER ENFORCED.

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