KAVA HOLDINGS, LLC, DBA Hotel Bel-Air v. National Labor Relations Board

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAVA HOLDINGS, LLC, DBA
Hotel Bel-Air,
Petitioner,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent,
UNITE HERE LOCAL 11,
Respondent-Intervenor.
No. 21-70225
NLRB No. 31-
CA-074675
OPINION
NATIONAL LABOR RELATIONS
BOARD,
Petitioner,
v.
KAVA HOLDINGS, LLC, DBA
Hotel Bel-Air,
Respondent.
No. 21-70638
21-71334
NLRB No. 31-
CA-074675

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2 K AVA H OLDINGS, LLC V. NLRB
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted October 20, 2022
Seattle, Washington
October 18, 2023
Before: Ryan D. Nelson, Danielle J. Forrest, and Jennifer
Sung, Circuit Judges.
Opinion by Judge Sung
SUMMARY*
Labor Law
The panel denied in part and dismissed in part Kava
Holdings, LLC’s petition for review and granted the
National Labor Relations Board’s cross-petition for
enforcement of its order, which found that Kava committed
unfair labor practices in violation of Sections 8(a)(1),
8(a)(3), and 8(a)(5) of the National Labor Relations Act.
Intervenor UNITE HERE Local (the Union) was the
exclusive collective bargaining representative for a unit of
employees whom Kava employed at the Hotel Bel-
Air. When the Hotel reopened after extensive renovations,
Kava refused to rehire 152 employees even though they were
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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K AVA H OLDINGS, LLC V. NLRB 3
qualified for the open positions and refused to recognize the
Union as the unit employees’ bargaining representative.
The panel held that substantial evidence supported the
Board’s finding that Kava committed an unfair labor practice
by refusing to rehire union-affiliated former employees so
that Kava could avoid its statutory duty to bargain with the
Union. Substantial evidence supported the Board’s finding
of anti-union animus where the Board properly drew an
inference of animus from Kava’s prior unlawful conduct, the
Board reasonably inferred animus from the testimony of a
Kava human resources manager, and there was more than
substantial evidence of Kava’s generalized animus against
former employees based on their union affiliation. The
panel rejected Kava’s argument that it affirmatively proved
that it refused to rehire the former employees for legitimate
business reasons.
The panel held that substantial evidence supported the
Board’s finding that Kava committed an unfair labor practice
by refusing to recognize and bargain with the Union as it
reopened the Hotel, and by unilaterally changing the
bargaining unit’s established, pre-closure terms and
conditions of employment.

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

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K AVA H OLDINGS, LLC V. NLRB 5
OPINION
SUNG, Circuit Judge:
For some years, intervenor UNITE HERE Local 11
(Union) was the exclusive collective bargaining
representative for a unit of employees whom Kava Holdings
LLC employed at the Hotel Bel-Air. The bargaining unit
included kitchen workers, dining and room service
employees, housekeepers, garage and front desk employees,
gardeners, maintenance employees, and more. In September
2009, Kava temporarily closed the Hotel for extensive
renovations and laid off all the unit employees. In July 2011,
as Kava prepared to reopen the Hotel, Kava conducted a job
fair to fill about 306 unit positions. Approximately 176
union-affiliated former employees applied for those
positions. Kava refused to rehire 152 of them.
The National Labor Relations Board found that Kava
committed unfair labor practices by refusing to rehire former
employees because of their union affiliation, refusing to
recognize and bargain with the Union, and unilaterally
changing unit employees’ terms and conditions of
employment, in violation of Sections 8(a)(1), 8(a)(3), and
8(a)(5) of the National Labor Relations Act, 29 U.S.C.
§ 158(a)(1), (3), (5). The Board ordered various remedies,
including reinstatement of the former employee applicants
who were affected by Kava’s discriminatory conduct. Kava
petitions for review of the Board’s order and a supplemental
remedial order, and the Board cross-applies for enforcement.
Because the Board’s findings are supported by substantial
evidence, we deny Kava’s petition for review and grant the
Board’s application for enforcement.

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6 K AVA H OLDINGS, LLC V. NLRB
BACKGROUND
Kava’s conduct surrounding the temporary closure of the
Hotel Bel-Air gave rise to two separate but related Board
orders finding that Kava committed multiple unfair labor
practices. The first order, Hotel Bel-Air I, addressed Kava’s
conduct at the start of the temporary closure. See Hotel Bel-
Air, 358 NLRB 1527 (2012), adopted by 361 NLRB 898
(2014), enforced, 637 F. App’x 4 (D.C. Cir. 2016). The
second order, Hotel Bel-Air II, addressed Kava’s conduct
upon reopening and is the subject of this appeal. See Hotel
Bel-Air, 370 NLRB No. 73 (2021).1
When Kava temporarily closed the Hotel in September
2009, Kava and the Union initially bargained over the
closure’s effects on the laid-off employees. But after some
months, Kava ended those negotiations. In Hotel Bel-Air I,
the Board found that Kava violated its duty to bargain in
good faith in two ways: by unilaterally implementing its
“last, best, and final offer” on severance, waiver, and release
terms without having first reached a valid impasse in
negotiations with the Union, and by bypassing the Union and
dealing directly with the laid-off employees. 358 NLRB at
1527–28. As to the second violation—unlawful engagement
in direct dealing—Kava asked the laid-off employees to sign
waivers of their recall rights in exchange for severance
payments. Id. The Board ordered Kava to rescind the
waivers and bargain in good faith with the Union. Id. at
1528–29.
While the unfair labor practice charges underlying Hotel
Bel-Air I were pending, Kava prepared to reopen the Hotel.
1 The Board also issued a third, supplemental order, Hotel Bel-Air III,
regarding a remedial issue. See Hotel Bel-Air, 371 NLRB No. 27 (2021).

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K AVA H OLDINGS, LLC V. NLRB 7
Both before and after the renovation, the Hotel Bel-Air was
a five-star luxury hotel. Although Kava planned significant
updates to the Hotel’s service model upon reopening, the job
descriptions and duties for most unit positions remained
essentially the same.
In July 2011, a few months before the Hotel’s reopening,
Kava conducted a three-day job fair. The job fair
advertisements stated that Kava sought candidates with
“exceptional talent,” “a passion for excellence, a warm
friendly, and positive attitude, and strong verbal
communication skills.” Kava also noted that “[p]revious
luxury hospitality experience” was “desirable.”
Kava invited its union-affiliated former employees to
apply during the first morning of the job fair and reserved
the remaining two-and-a-half days for members of the
public. This schedule allowed Kava to easily “distinguish
[union-affiliated former employees] from other applicants.”
Hotel Bel-Air II, 370 NLRB No. 73, slip op. at 12.
At the job fair, applicants completed an initial written
application that included an employment history section.2
Then, they proceeded through a three-step interview process.
First, all applicants lined up for an initial interview, during
which they stated the position they were applying for, their
evening and weekend availability, and their reasons for
wanting to work at the Hotel. Second, some applicants
advanced to a same-day departmental interview, during
which they were asked specified questions about their work
experience. Third, applicants who passed the departmental
interview were scheduled for final interviews after the job
2 As discussed further below, Kava deviated from this approach with
respect to some of the former employees.

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8 K AVA H OLDINGS, LLC V. NLRB
fair. After the three interviews, management made hiring
decisions.
At the time of the job fair, Kava was hiring for about 306
unit positions. Approximately 176 union-affiliated former
employees applied for those positions at the job fair. Kava
did not hire 152 of them. The Board found, and Kava does
not dispute, that the former-employee applicants “were
qualified for the open positions, and many had several prior
years of positive evaluations while they worked for [the
Hotel Bel-Air].”
When Kava reopened the Hotel in October 2011, Kava
refused to recognize the Union as the unit employees’
collective bargaining representative. Kava also made various
unilateral changes to the bargaining unit’s terms and
conditions of employment, including wages, benefits,
breaks, and paid time off.
The Union filed an unfair labor practice charge regarding
Kava’s reopening conduct, which NLRB Region 31 placed
in abeyance pending the outcome of Bel-Air I. Eventually,
the D.C. Circuit enforced Hotel Bel-Air I. 637 F. App’x at 5.
Then, NLRB Region 31 took the present case out of
abeyance and issued a complaint, which was heard by an
administrative law judge (ALJ). After a 21-day trial, the ALJ
issued a thorough decision with extensive findings of fact.
At trial, Kava contended that it did not hire the union-
affiliated former employees because they lacked the
demeanor or skills needed for the type of luxury hotel service
that Kava intended to provide upon reopening. After a
detailed analysis of Kava’s job fair records, however, the
ALJ found that Kava’s proffered reasons for not rehiring the
employees were pretextual. The ALJ found that the union-
affiliated former employees who participated in the July

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K AVA H OLDINGS, LLC V. NLRB 9
2011 job fair had the requisite experience and training for
the positions they had applied for, and that many of them had
received positive work evaluations while working for the
Hotel. Yet, at the job fair, Kava excluded most of the former
employees at the initial interview stage for “unexplained” or
“obviously insufficiently explained reasons” or because of a
“bogus explanation.” Id. Additionally, for many of the
former employees, Kava did not follow its established three-
step hiring process and gave no explanation for treating
those former employees differently.
Based on Kava’s job fair records, the testimony of a
Human Resources manager, and Kava’s prior unlawful
conduct, the ALJ found that Kava’s anti-union animus—that
is, Kava’s desire to reopen the Hotel Bel-Air as a non-union
hotel—contributed to Kava’s decision not to rehire the
former employees. Specifically, the ALJ found that Kava
intended “to prevent a majority of former employees from
being rehired when the Hotel reopened” so that Kava could
avoid its statutory duty to recognize and bargain with the
Union. Hotel Bel-Air II, 370 NLRB No. 73, slip op.at 12.
Ultimately, the ALJ found that Kava discriminatorily
refused to rehire its union-affiliated former employees, in
violation of Sections 8(a)(3) and (1) of the NLRA. Hotel Bel-
Air II, 370 NLRB No. 73, slip op. at 11. The ALJ also found
that Kava refused to recognize and bargain with the Union
upon reopening, and that Kava unilaterally changed unit
employees’ terms and conditions of employment, in
violation of Sections 8(a)(5) and (1) of the NLRA. Id. at 13.3
The ALJ ordered Kava to reinstate its union-affiliated former
3 Violations of Sections 8(a)(3) and (5) produce derivative violations of
Section 8(a)(1). Metro. Edison Co. v. NLRB, 460 U.S. 693, 698 n.4
(1983); see also 29 U.S.C. § 158(a)(1).

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10 K AVA H OLDINGS, LLC V. NLRB
employees and to make them whole for any lost earnings or
benefits, and interim search-for-work and employment
expenses. The ALJ also ordered Kava to bargain with the
Union and cease and desist from unilaterally changing the
terms and conditions of employment. Id. at 14.
Kava filed exceptions to the ALJ’s decision with the
Board. The Board affirmed the ALJ’s rulings, findings, and
conclusions, and adopted the ALJ’s recommended order.4
Id. at 1.
STANDARD OF REVIEW
“A court must uphold a Board decision when substantial
evidence supports its findings of fact and when the agency
applies the law correctly.” United Nurses Ass’ns of Cal. v.
NLRB, 871 F.3d 767, 777 (9th Cir. 2017) (citation and
quotation marks omitted).
The Board’s factual findings are “conclusive” “if
supported by substantial evidence on the record considered
as a whole.” 29 U.S.C. § 160(e). When reviewing factual
findings, “a court may not ‘displace the Board’s choice
between two fairly conflicting views, even though the court
4 The Board adopted the ALJ’s recommended order with a few
modifications. In relevant part, when affirming the ALJ’s finding that
anti-union animus contributed to Kava’s decision not to rehire the former
employees, the Board did not rely on the disparity between the number
who applied and the number who were hired, nor did it rely on Glenn’s
Trucking Co., 332 NLRB 880 (2000), enforced, 298 F.3d 502 (6th Cir.
2002). Hotel Bel-Air II, 370 NLRB No. 73, slip op. at 1 n.4. The Board
also severed and remanded a remedial issue regarding 13 unit employees
who were left out of the ALJ’s reinstatement order. Later, the Board
issued a supplemental order that required Kava to offer reinstatement to
those 13 employees, provided that the General Counsel identified them
during subsequent compliance proceedings. Hotel Bel-Air III, 371
NLRB No. 27, slip op. at 2.

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K AVA H OLDINGS, LLC V. NLRB 11
would justifiably have made a different choice had the
matter been before it de novo.’” United Nurses, 871 F.3d at
777 (quoting Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951)).
The Board has “special expertise in drawing” inferences
of credibility and unlawful motive, and “its determinations
are entitled to judicial deference.” Kallmann v. NLRB, 640
F.2d 1094, 1099 (9th Cir. 1981); see also Pay’n Save Corp.
v. NLRB, 641 F.2d 697, 702 (9th Cir. 1981) (“The
determination of motive . . . is particularly within the
purview of the NLRB.”). “We defer to any ‘reasonably
defensible’ interpretation of the NLRA by the Board.”
United Nurses, 871 F.3d at 777 (quoting Retlaw Broad. Co.
v. NLRB, 53 F.3d 1002, 1005 (9th Cir. 1995)).
DISCUSSION
I. Discriminatory Refusal to Rehire
Substantial evidence supports the finding that Kava
committed an unfair labor practice in violation of Sections
8(a)(1) and (3) of the NLRA, 29 U.S.C. § 158(a)(1) and (3),
by refusing to rehire union-affiliated former employees so
that Kava could avoid its statutory duty to bargain with the
Union.
Section 8(a)(3) of the Act prohibits an employer from
“discriminating in regard to hire . . . [in order to] discourage
membership in any labor organization.” 29 U.S.C.
§ 158(a)(3). An employer violates Section 8(a)(3) by
refusing to hire job applicants because of their union
affiliation. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 181–
89 (1941).
In cases alleging a discriminatory refusal to hire, the
General Counsel typically must show “(1) that the

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12 K AVA H OLDINGS, LLC V. NLRB
respondent was hiring, or had concrete plans to hire, at the
time of the alleged unlawful conduct; (2) that the applicants
had experience or training relevant to the announced or
generally known requirements of the positions for hire, or in
the alternative, that the employer has not adhered uniformly
to such requirements, or that the requirements were
themselves pretextual or were applied as a pretext for
discrimination; and (3) that antiunion animus contributed to
the decision not to hire the applicants.” FES, A Div. of
Thermo Power, 331 NLRB 9, 12 (2000), aff’d, 301 F.3d 83
(3d Cir. 2002). Here, it is undisputed that Kava was hiring
for over 300 positions at the time of the alleged
discrimination and that the union-affiliated former-
employee applicants had relevant training and experience for
the open positions. Kava disputes only the Board’s finding
that anti-union animus was a motivating factor in Kava’s
decision not to hire the union-affiliated former employees.
To determine whether anti-union animus was a
motivating factor in Kava’s hiring decisions, the Board
applied the causation test established in Wright Line, 251
NLRB 1083 (1980). “Under Wright Line, the General
Counsel must make a showing sufficient to support the
inference that protected conduct was a motivating factor in
the employer’s decision.” United Nurses, 871 F.3d at 778
(citations and quotation marks omitted). An employer’s
unlawful motivation can be inferred from direct or
circumstantial evidence. New Breed Leasing Corp. v. NLRB,
111 F.3d 1460, 1464–66 (9th Cir. 1997). Direct evidence of
actual motive “that is not also self-serving” rarely exists.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470
(9th Cir. 1966). Further, we give “special deference” to the
Board where, as here, it draws derivative inferences from the

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K AVA H OLDINGS, LLC V. NLRB 13
evidence. NLRB v. Tischler, 615 F.2d 509, 511 (9th Cir.
1980).
Once the General Counsel has made this initial showing,
the burden of persuasion shifts “to the employer to
demonstrate that the same action would have taken place
even in the absence of protected conduct.” Healthcare Emps.
Union, Loc. 399 v. NLRB, 463 F.3d 909, 919 (9th Cir. 2006)
(quoting Wright Line, 251 NLRB at 1089). “An employer
cannot prove this affirmative defense where its asserted
reasons for [its action] are found to be pretextual.” United
Nurses, 871 F.3d at 779 (citations and quotation marks
omitted).
Here, Kava contends that the Board erred by finding that
the General Counsel made a sufficient showing under Wright
Line. For the General Counsel’s initial burden under Wright
Line, a sufficient showing generally consists of three
elements: “(1) union or other protected activity by the
employee, (2) employer knowledge of that activity, and (3)
animus against union or other protected activity on the part
of the employer.” Intertape Polymer Corp., 372 NLRB No.
133, slip op. at 7 (2023). Kava does not dispute (1) that the
former employees’ Union affiliation is protected activity, or
(2) that Kava had knowledge of that activity. Kava disputes
only the third element, contending that there is insufficient
evidence of animus. Kava also contends that it affirmatively
proved that it had legitimate business reasons for refusing to
rehire the former employees.
A. Anti-union Animus
Here, substantial evidence supports the Board’s finding
of anti-union animus. That evidence includes: (1) Kava’s
prior unlawful conduct; (2) the testimony of Kava Human
Resources Manager Sandra Abrizu; and (3) Kava’s hiring

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14 K AVA H OLDINGS, LLC V. NLRB
conduct, including job fair records revealing that Kava
disfavored former-employee applicants and that Kava’s
proffered reasons for rejecting them were pretextual. Hotel
Bel-Air II, 370 NLRB No. 73, slip op. at 7–10. We address
Kava’s arguments about each category of evidence, and the
evidence as a whole, in turn.
1.
Kava argues that the Board erred by drawing an
inference of animus in this case from Kava’s prior unfair
labor practice conduct in Bel-Air I. We disagree. An
employer’s prior unfair labor practices may support a finding
of unlawful motive. See, e.g., Kallmann, 640 F.2d at 1097–
1100.
Kava’s argument hinges on its misreading of Mt.
Clemens General Hospital, 344 NLRB 450 (2005), which
Kava asserts broadly prohibits inferring animus from an
employer’s prior unlawful conduct. But Mt. Clemens
recognizes that prior unfair labor practice violations are
relevant in determining whether animus exists in a
subsequent case. Id. at 455-56 (collecting examples). Mt.
Clemens did not overrule that longstanding precedent.
Rather, Mt. Clemens found that the circumstances presented
there were materially different from the prior cases it
discussed. As the Board explained in Mt Clemens, animus
could not be inferred from Mt. Clemens’s prior unfair labor
practice case because the events underlying the prior case
had occurred four years earlier and had no factual connection
to the events at issue in the present case. Id. at 456.
Unlike in Mt. Clemens, the events at issue in Hotel Bel-
Air I are connected and close in time to the events at issue
here. The unfair labor practice charges in Hotel Bel-Air I
concern Kava’s conduct towards the same union-affiliated

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K AVA H OLDINGS, LLC V. NLRB 15
employees during the same renovation closure. Hotel Bel-
Air I, 358 NLRB at 1527. In Hotel Bel-Air I, the Board found
that Kava violated its duty to bargain during the renovation
closure by unilaterally implementing its “last, best, and final
offer” on severance, waiver, and release terms without first
reaching a valid impasse with the Union, and by bypassing
the Union and dealing directly with laid-off employees. Id.
Kava engaged in unlawful direct dealing by asking the laid-
off employees to sign waivers of their recall rights in
exchange for severance payments. Id. at 1527–28. Kava
engaged in this unlawful conduct during the initial eight
months of Kava’s closure of the Hotel Bel-Air for
renovation, and Kava conducted the job fair and hiring
process at issue in the present case only a year later. The
Board could reasonably infer from Kava’s conduct in both
cases—asking union-affiliated employees to waive their
recall rights in exchange for severance pay and refusing to
rehire union-affiliated employees upon reopening the
Hotel—that Kava intended to prevent union-affiliated
employees from comprising a majority of the Hotel Bel-Air
workforce upon reopening. Thus, Kava’s unlawful conduct
in Bel-Air I is substantial evidence supporting the finding of
animus in the present case.
2.
Kava argues that the Board erred by inferring animus
from the testimony of a Kava human resources manager,
Sandra Arbizu. The Board drew an inference of animus from
the following exchange: Counsel asked Arbizu whether
Kava had made “any preparations” to “deal with the Union”
upon reopening. Arbizu answered “yes,” and then explained
that Kava was conducting training on “being good
managers,” which “is preventative kind of work that we do
to educate our managers so that your employees do not need

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16 K AVA H OLDINGS, LLC V. NLRB
a third party to speak for them.” Counsel then asked Arbizu
if she meant that Kava was taking “preventative measures to
make sure that a union doesn’t need to come, or [the
employees] don’t need to be represented by a union, because
those things are being taken care of,” and Arbizu answered
affirmatively. Because Arbizu testified that Kava was taking
“preventative” measures aimed at persuading employees
that they would not need a union to come and represent them,
the Board inferred that Kava was intending to reopen as a
non-union hotel.
Kava argues that we should interpret Arbizu’s testimony
differently from the Board because when counsel asked
Arbizu point blank whether Kava was “preparing to open as
a non-union hotel without the prior union,” she responded,
“No. . . it’s not about a union or non-union. It’s part of
preparing your staff so that they’re ready to deal with things
that are going to come along.” Although Arbizu’s statements
are “capable of noncoercive interpretation,” “[i]t is not for
us . . . to weigh differing interpretations.” NLRB v. Fort
Vancouver Plywood, 604 F.2d 596, 599 n.1 (9th Cir. 1979).
We ask only whether the factfinder’s interpretation was
“reasonable.” Id. (citing Penasquitos Village, Inc. v. NLRB,
565 F.2d 1074, 1080–82 (9th Cir. 1977)). Here, the inference
drawn by the ALJ and sustained by the Board was
reasonable.
3.
Kava takes issue with the Board’s findings, based on
Kava’s job fair records, that Kava treated its union-affiliated
former employees differently than other applicants and that
its proffered reasons for not rehiring those employees were
pretextual. Kava does not meaningfully dispute the Board’s
analysis of Kava’s job fair records. Instead, Kava argues for

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K AVA H OLDINGS, LLC V. NLRB 17
the first time on appeal that the Board could not consider the
job fair records because they are “hearsay” and “inherently
unreliable.” Because Kava did not urge this evidentiary
objection before the Board, Kava waived it, and we are
jurisdictionally barred from considering it. See 29 U.S.C.
§ 160(e) (“[N]o objection that has not been urged before the
Board . . . shall be considered by the court, unless the failure
or neglect to urge such objection shall be excused because of
extraordinary circumstances.”); NLRB v. Friendly Cab Co.,
512 F.3d 1090, 1103 n.10 (9th Cir. 2008) (“Section 10(e) of
the Act constitutes a jurisdictional bar to this court
considering claims not raised before the NLRB.”).
We conclude that the Board reasonably inferred animus
from this evidence. Intertape, 372 NLRB No. 133, slip op.
at 13 (“[T]he Board “has routinely inferred animus and a
causal connection from, among other factors, . . . disparate
treatment of the employee; and reliance on pretextual
reasons for the action.”).
4.
Kava also contends that holistically there is insufficient
evidence to demonstrate a causal connection between any
animus and Kava’s decision not to rehire its union-affiliated
former employees. We disagree. As noted above, we review
for substantial evidence the Board’s factual finding that the
record supports an inference of causation, and we defer to
the Board’s “special expertise” in making such inferences.
Kallmann, 640 F.2d at 1099; Pay’n Save Corp., 641 F.2d at
702; Universal Camera Corp., 340 U.S. at 488. Kava’s prior
unlawful conduct in Hotel Bel-Air I, Arbizu’s testimony, and
the job fair records that show disparate treatment of former
employees and pretext are more than enough to support an
inference that anti-union animus was a motivating factor in

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18 K AVA H OLDINGS, LLC V. NLRB
Kava’s refusal to rehire its union-affiliated former
employees. See New Breed, 111 F.3d at 1465 (finding that
employer’s “clandestine hiring practices” and false promises
to retain union-affiliated employees were substantial
evidence to support inference that employer’s hiring
practices were motivated by anti-union animus).
Kava asserts that Tschiggfrie Properties, Ltd., 368
NLRB No. 120, slip op. at 1 (2019), heightened the General
Counsel’s evidentiary burden under Wright Line, and that
the Board failed to apply that heightened standard in this
case. Kava’s reading of Tschiggfrie is incorrect. Indeed, the
Board recently confirmed that Tschiggfrie did not heighten
or otherwise modify the General Counsel’s burden. See
Intertape, 372 NLRB No. 133, slip op. at 7–11
(acknowledging that “the Board’s decision in Tschiggfrie . .
. was susceptible to misinterpretation” and “mak[ing] clear
that Tschiggfrie did not alter the General Counsel’s burden
under the longstanding Wright Line framework”).
In support of the argument that stronger or more direct
evidence of animus is required, Kava argues that, under
Tschiggfrie, “more than ‘circumstantial evidence of any
animus or hostility’ is needed” and “a clear causal nexus
must be proven at the prima facie stage.” The Board in that
case, however, merely clarified that the General Counsel
does not “necessarily” satisfy their burden to show that
protected conduct was a motivating factor in the employer’s
decision “through evidence of general animus or hostility
toward union or other protected activity alone.” Tschiggfrie,
368 NLRB No. 120, slip op. at 7–8 n.25 (emphasis added).
The Board then took pains to explain that it was not requiring
the General Counsel to present direct evidence of motive,
and that it was not adding an undefined “nexus” element to
the Wright Line test. Id. at 8. Further, the Board emphasized

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K AVA H OLDINGS, LLC V. NLRB 19
that it was adhering to its “longstanding principle that
‘[p]roof of discriminatory motivation can be based on direct
evidence or can be inferred from circumstantial evidence
based on the record as a whole.’” Id. at 11 (quoting Embassy
Vacation Resorts, 340 NLRB 846, 848 (2003)).
5.
Finally, Kava argues that the Board erred in finding that
Kava was motivated by “generalized” animus against its
former employees as a group, because of their union
affiliation. Relying again on Tschiggfrie, Kava asserts that
the Board has held that the General Counsel cannot rely on
evidence of generalized animus to prove a violation of
Section 8(a)(3), and must instead introduce evidence of
individualized animus, that is, animus towards certain
employees because of their particular union activities or
sentiments. Again, Kava misreads Tschiggfrie.
In Tschiggfrie, the Board clarified that the General
Counsel’s animus evidence “must be sufficient to establish
that a causal relationship exists between the employee’s
protected activity and the employer’s adverse action against
the employee.” 368 NLRB No. 120, slip op. at 8. The Board
further explained that “evidence of animus that is ‘general’
in that it is not tied to any particular employee, may
nevertheless be sufficient, under the circumstances of a
particular case, to give rise to a reasonable inference that a
causal relationship exists between the employee’s protected
activity and the employer’s adverse action.” Id.; see also
Great Lakes Chem. Corp. v. NLRB, 967 F.2d 624, 628 (D.C.
Cir. 1992) (“[W]holesale rejection of former [] employees
because they were Union members is, by its nature, equally
applicable to each employee. Retail proof regarding each
individual would be surplusage.”). The Board recently re-

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20 K AVA H OLDINGS, LLC V. NLRB
emphasized “that the Board in Tschiggfrie did not revise the
Wright Line framework by adding a requirement that the
General Counsel must show particularized motivating
animus towards an employee’s own protected activity.”
Intertape, 372 NLRB No. 133, slip op. at 13.
Kava also contends that there is not enough evidence to
establish it harbored any generalized animus against its
former employees because of their union affiliation. We
reject this contention. The showing here (e.g., Kava’s prior
unfair labor practices, HR manager Arbizu’s testimony, job
fair records showing disparate treatment, and the Board’s
finding of pretext) is more than substantial evidence of
Kava’s generalized animus against former employees based
on their union affiliation.
B. Affirmative Defense
In addition to challenging whether sufficient evidence
establishes that Kava engaged in discriminatory hiring, Kava
argues that it affirmatively proved that it refused to rehire the
former employees for legitimate business reasons. Kava
does not offer employee-specific explanations for its
decisions. Rather, Kava broadly asserts that it refused to
rehire its former employees because it intended to adopt a
new luxury service model upon reopening and it wanted
employees who were well-suited to that model.
The Board found that Kava’s proffered reasons for
refusing to hire former employees were pretextual, based on
the ALJ’s detailed analysis of Kava’s own records, which
the Board fully adopted. Hotel Bel-Air II, 370 NLRB No. 73,

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K AVA H OLDINGS, LLC V. NLRB 21
slip op. at 1, 11–13.5 Kava does not meaningfully challenge
that analysis. Nor does Kava argue that the Board’s
descriptions of the record or examples given are inaccurate.
Although Kava asserts that the Board “cherry-picked”
examples, Kava does not point to any evidence that the
examples the Board provided are not representative of the
former employees as a whole. Because the Board found that
Kava’s asserted reasons for not hiring the former employees
were pretextual, Kava cannot prove this affirmative defense.
See United Nurses, 871 F.3d at 779 (citing In re Stevens
Creek Chrysler Jeep Dodge, Inc., 357 NLRB 633, 637
(2011)).
To the extent Kava is asking this Court to “reweigh the
evidence, try the case de novo, or substitute [its] judgment
for that of the Board,” El Paso Elec. Co. v. NLRB, 681 F.3d
651, 656 (5th Cir. 2012), we may not do so, United Nurses,
871 F.3d at 777.
II. Unlawful Refusal to Bargain
Under Section 8(a)(5) of the NLRA, it is an unfair labor
practice for an employer to “refuse to bargain collectively
with the representatives of [its] employees.” 29 U.S.C.
§ 158(a)(5). An employer has a duty to negotiate with its
represented employees’ union over potential changes in their
terms and conditions of employment. 29 U.S.C. § 158(d);
see also NLRB v. Wilder Const. Co., 804 F.2d 1122, 1124–
25 (9th Cir. 1986) (discussing an employer’s “continuing
duty . . . to recognize and to bargain with the union”).
5 Because the Board adopted the ALJ’s analysis, we treat the Board’s
order and the adopted ALJ analysis as one order. See Hotel Bel-Air II,
370 NLRB No. 73, slip op. at 1.

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22 K AVA H OLDINGS, LLC V. NLRB
Substantial evidence supports the Board’s finding that
Kava committed an unfair labor practice in violation of
Sections 8(a)(1) and (5) of the NLRA, 29 U.S.C. § 158(a)(1)
and (5), by refusing to recognize and bargain with the Union
as it reopened the Hotel, and by unilaterally changing the
bargaining unit’s established, pre-closure terms and
conditions of employment.
The Board found that the “evidence clearly supports the
fact that the shutdown of the Hotel was planned as a
temporary renovation” and that Kava’s bargaining
relationship with the Union “survived the hiatus” in Hotel
operations, even after the collective bargaining agreement
expired on September 30, 2009. Hotel Bel-Air II, 370 NLRB
No. 73, slip op. at 13. Accordingly, the Board held that Kava
was obligated to recognize and bargain with the Union over
the effects of the temporary shutdown and rehiring, and that
Kava was prohibited from unilaterally changing the terms
and conditions of unit members’ employment. Id. at 13–14.
Kava does not dispute that it failed to recognize or bargain
with the Union, nor that it unilaterally changed the terms and
conditions of unit employees’ employment. Kava properly
raises only one issue: Whether Kava’s duty to bargain
survived the temporary shutdown of the Hotel.6
To determine whether a collective bargaining
relationship and the parties’ related duties survive a
shutdown in employer operations, the Board primarily
considers the “critical distinction between a temporary
shutdown and an indefinite, apparently permanent,
shutdown.” Golden State Warriors, 334 NLRB 651, 654 n.8
6 Kava’s remaining arguments are jurisdictionally barred because Kava
failed to raise them before the Board. See 29 U.S.C. § 160(e); Friendly
Cab Co., 512 F.3d at 1103 n.10.

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K AVA H OLDINGS, LLC V. NLRB 23
(2001) (collecting cases), enforced, 50 F. App’x 3 (D.C. Cir.
2002). The Board also considers whether the employees who
were laid off or discharged because of the shutdown had a
“reasonable expectation of reemployment.” El Torito-La
Fiesta Rests., Inc. v. NLRB, 929 F.2d 490, 495–96 (9th Cir.
1991).7
Importantly, Kava does not dispute that the Hotel closure
was temporary and that it “planned from the outset” to
reopen the Hotel after renovations were complete. Kava
challenges only the Board’s finding that the bargaining unit
employees had a reasonable expectation of rehire.
In Hotel Bel-Air I, 358 NLRB at 1528, the Board
determined that the bargaining unit employees “retained a
reasonable expectation of recall from layoff” when Kava
closed the Hotel for renovations. The Board further
concluded that the employees’ reasonable expectation of
recall continued after the collective bargaining agreement
expired on September 30, 2009, and beyond Kava’s
unlawful direct dealing with the bargaining unit employees
on July 7, 2010. Id. In fact, the Board found that Kava’s July
7, 2010, offer to provide severance payments to the
bargaining unit employees in exchange for their waiver of
their recall rights “took it for granted that unit employees had
some expectation of recall.” Id. The Board relied on that
finding in this case. Hotel Bel-Air II, 370 NLRB No. 73, slip
op. at 12–13.
Kava cannot collaterally attack the finding in Bel-Air I
that the former employees enjoyed a reasonable expectation
7 The Board considers “a reasonable expectation of recall to be
synonymous with a reasonable expectation of reemployment” or rehire.
El Torito, 929 F.2d at 495 n.4.

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24 K AVA H OLDINGS, LLC V. NLRB
of rehire when the Hotel closed for renovations on
September 30, 2009. Instead, Kava asserts that things
changed after July 2010, so that the employees no longer
enjoyed a reasonable expectation of rehire by July 2011,
when Kava conducted the job fair, or by October 2011, when
Kava reopened the Hotel.
Kava asserts that the employees could no longer have a
reasonable expectation of rehire in July 2011 because their
contractual right to recall had expired by then. That
argument, however, fails for two reasons. First, as a factual
matter, the expiration of the employees’ contractual right to
recall is not a change in circumstance that occurred between
July 7, 2010, and July 2011, because the contractual right to
recall expired before July 7, 2010 (when Kava made its
unlawful direct offer of severance payments in exchange for
employees’ waiver of their recall rights).8 Second,
employees do not need a contractual or other legal right to
reemployment to have a “reasonable” expectation of
reemployment. See, e.g., El Torito, 929 F.2d at 496 (finding
that employees retained reasonable reemployment
expectation after contractual right expired).
Kava argues that this case is comparable to two cases
where the Board found that the employees did not have a
reasonable expectation of rehire: Sterling Processing Corp.,
291 NLRB 208 (1988), and Cen-Vi-Ro Pipe, 180 NLRB 344
(1969), enforced, 457 F.2d 775 (9th Cir. 1972). Those cases,
however, are materially distinguishable. In both, the
employer closed its facility for economic reasons, the
shutdown was “indefinite,” and the possibility of reopening
8 Under the parties’ collective bargaining agreement, the employees’
contractual right to recall expired after they had been in continual layoff
status for 9 months, which was on June 30, 2010.

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K AVA H OLDINGS, LLC V. NLRB 25
was contingent on business deals or changes that might not
occur. See Sterling, 291 NLRB at 208–10; Cen-Vi-Ro Pipe,
180 NLRB at 345–47. But here, as Kava acknowledges, the
Hotel’s “re-opening was planned from the outset.” As noted
above, the distinction between a temporary shutdown and an
indefinite one is “critical” to the Board’s determination of
whether a collective bargaining relationship survives the
hiatus in operations. Therefore, Kava has not identified any
change in circumstance that occurred after July 2010 that
could negate the employees’ reasonable expectation of
rehire, and the Board’s finding that the Kava employees
retained a reasonable expectation of reemployment is
consistent with precedent and supported by substantial
evidence.
CONCLUSION
We DENY Kava’s petition for review, except for the
arguments that we DISMISS for lack of jurisdiction because
Kava failed to raise them below. We GRANT the Board’s
cross-petition, and we enforce the Board’s orders in full.
PETITION DENIED IN PART, DISMISSED IN
PART; CROSS-PETITION GRANTED.

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