On February 22, 2024, a panel of judges for the United States Court of Appeals for the Ninth Circuit issued an unpublished opinion upholding enforcement of a National Labor Relations Board (“NLRB”) order holding that a restaurant, Grill Concepts Services, Inc. (“Grill Concepts”) violated the National Labor Relations Act by refusing to bargain in good faith with the UNITE HERE Local 11 union. The panel granted NLRB’s petition for enforcement and denied Grill Concepts’ petition for review.

NLRB alleged that Grill Concepts engaged in a course of bad faith conduct between November 2020 to May 2021, and refused to consider Local 11’s proposals at bargaining sessions in December 2020 and January 2021.

Grill Concepts argued that given the economic exigency caused by the COVID-19 pandemic, it could not have entered into a longer-term contract with Local 11. The Ninth Circuit found that the narrow economic exigency exception did not apply to obviate the employer’s duty to negotiate, even though the employer did not have an obligation to reach an agreement. Additionally, the panel found that Grill Concepts failed to establish that Local 11 had lost majority support, and did not credit affidavits from employees describing a decline in bargaining momentum during the pandemic. The panel found that the record supported NLRB’s finding and granted its petition for enforcement.

While the opinion is unpublished and does not have precedential value, it is another victory for unions in California. Local 11 has been particularly active in California, and was a driving force in the passage of the FAST Recovery Act, Assembly Bill 1228.

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