Hampton Inn

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 238 First FM Joint Ventures, LLC d/b/a Hampton Inn & Suites–Chicago River North and International Brotherhood of Teamsters, Local 727, AFL– CIO, Petitioner. Case 13–RC–20292 May 23, 2000 ORDER DENYING REVIEW BY CHAIRMAN TRUESDALE, AND MEMBERS FOX, LIEBMAN, HURTGEN, AND BRAME On March 27, 2000, International Brotherhood of Teamsters, Local 727, AFL–CIO (the Petitioner), filed a petition in the above-captioned case, seeking to represent all full-time and regular part-time door attendants and bell persons employed by Hampton Inn Suites Hotel (the Employer), excluding all office and clerical employees, guards and supervisors. On April 11, 2000, the Regional Director approved a Stipulated Election Agreement exe- cuted by the Employer and the Petitioner in a unit of all full-time and regular part-time bell persons employed by the Employer, excluding all office clerical employees, professional employees, guards, and supervisors. The stipulated unit includes four employees. On April 11, 2000, the same day on which the Re- gional Director approved the Stipulated Election Agree- ment, the Petitioner filed a second petition in Case 13– RC–20300 in a unit of all full-time and part-time house- keeping, laundry, and hostess attendants employed by the Employer, excluding all office clerical employees, guards, and supervisors. On April 12, 2000, the Employer requested permis- sion from the Regional Director to withdraw from the Stipulated Election Agreement in the instant case. The Employer contended that it should be permitted to with- draw because a newly filed petition in Case 13–RC– 20300 seeks an election in a unit of employees that share a community of interest with those already included in the stipulated unit. On April 21, 2000, the Regional Di- rector denied the Employer’s request, indicating that the Petitioner’s second petition did not present unusual cir- cumstances contemplated by the Board for withdrawal from a Stipulated Election Agreement.1 On April 28, 2000, the Employer sought review of the Regional Director’s denial of its request to withdraw from the Stipulated Election Agreement. The Em- ployer’s request for review is denied. In its request for review, the Employer reiterates the argument made to the Regional Director, namely, it should be permitted to withdraw from the Stipulated Election Agreement in the instant case because a newly filed petition in Case 13–RC–20300 seeks an election in a unit of employees that share a community of interest among those already included in the stipulated unit. It is well established that once an election agreement has been approved, a party may withdraw therefrom only upon an affirmative showing of unusual circumstances or by agreement of the parties. Sunnyvale Medical Center, 241 NLRB 1156 (1979); Unifemme, Inc., 226 NLRB 607 (1976). Although the Employer contends that the stipu- lated unit shares a community of interest with those em- ployees whom Petitioner seeks to include in the second petition, it is the Board’s practice to honor concessions made in the interest of expeditious handling of represen- tation cases, even if the Board may have reached a dif- ferent result upon litigation. Highlands Regional Medi- cal Center, 327 NLRB 1049 (1999). Thus, the question as to whether the stipulated unit shares a sufficient com- munity of interest with the employees sought in the sec- ond petition, or whether the Board would include or combine them in one unit upon litigation, are issues not relevant to determining whether the Stipulated Election Agreement should be enforced. Highlands Regional Medical Center, supra. 1 It is undisputed that on April 25, 2000, the Region held a hearing on the second petition and the Employer litigated its contention that the stipulated unit and the unit petitioned-for in the second case share a community of interest. Inasmuch as the petition in Case 13–RC–20300 is not before us, we make no finding as to that petition. Our dissenting colleagues contend that unusual cir- cumstances are present here because the Petitioner with- held a material fact, namely, it did not reveal its intent to file a second petition, and the Employer was unaware of this fact.2 The dissent concedes that election agreements are contracts, binding on the parties who execute them, T & L Leasing, 318 NLRB 324 (1995), citing Barceloneta Shoe Corp., 171 NLRB 1333, 1334 (1968), but argues that we should not enforce this stipulation because the Petitioner allegedly withheld information regarding its plans to file a second petition. Initially, we know of no legal precedent requiring a labor organization to identify its organizing plans or forfeit an executed stipulated elec- tion agreement. Nor does the dissent cite any. Further, the Employer, who was represented by counsel during this proceeding, was not deprived of its right to raise any unit issues when negotiating the election agreement. The Employer's counsel knew, or at the very least should have known, that by stipulating to the appropriateness of the unit in this case, it was opening up the possibility that this Union or another union could organize and seek to represent employees in a unit comprising either part or all of its remaining employees. Nevertheless, the Em- ployer decided, in the interest of expeditious handling of a representation case, to concede the appropriateness of the unit, and it is the Board’s practice to honor that con- cession, even though the Board may have reached a dif- 2 Whether or not the Employer was aware of the Union’s plans is irrele- vant to us. The dissent also relies on the fact that the second petition was filed within hours of execution of the election agreement, which it con- tends qualifies as “unusual circumstances.” We disagree. The mere fact that the Petitioner chose to file a second petition does not qualify as “un- usual.” Indeed, labor organizations frequently file petitions in different units, at various times after they have filed an initial petition. The time frame involved here does not alter our analysis. 331 NLRB No. 35 HAMPTON INN & SUITES 239 ferent result upon litigation. Highlands Regional Medi- cal Center, supra. The Board has long held that a stipu- lated unit will not be cast aside solely because it desig- nates a unit we might find inappropriate had resolution of the issue not been agreed upon by the parties. Otis Hos- pital, 219 NLRB 164, 165 (1975); The Leonard Hospital, 220 NLRB 1042 (1975). Thus, even assuming that the stipulated unit is an inappropriate one, we will give full force and effect to that stipulation, provided that it does not contravene the provisions of the Act or established Board policy. Inasmuch as the Employer has not shown that the stipulated unit contravenes statutory or estab- lished Board policy, we shall hold the Employer to its stipulation. MEMBERS HURTGEN AND BRAME, dissenting. We would permit withdrawal from the stipulation or, at least, hold a hearing on certain matters discussed below. On April 11, the Union and the Employer stipulated to an election in a unit of bell persons (four employees). Case 13–RC–20292. Within hours of this stipulation, the Union filed a second petition in a “wall to wall” unit (32 employees), excluding bell-persons.1 Case 13–RC– 20300. In the absence of a hearing, our colleagues as- sume arguendo that, at the time of the stipulation: (1) the Union knew that it would imminently file the second petition; and (2) the Employer did not know that fact. Clearly, the aforementioned fact was a material one. If the Employer had known of the imminent second peti- tion, the Employer would not have entered into the stipu- lation. This is because the stipulation undercuts the Em- ployer’s contention that the unit in Case 13–RC–20300 is inappropriate, i.e., that the appropriate unit must include employees in both of the cases. Indeed, by approving the stipulation, our colleagues effectively preclude a finding that the employees covered thereby are to be in the broader unit. 1 The “wall to wall” language is that of the Employer. In the ab- sence of a refutation or hearing, we cannot assume that the language is inaccurate. In our view, a stipulation is a contract between the par- ties, whereby the parties waive certain rights to a hearing under the Act. The contract is subject to the approval of the Board. We would not permit the contract to stand where, as here, a material fact has been withheld by one party and not known by the other party, to the detriment of the latter party. This “hide the ball” conduct is incon- sistent with the Board’s obligation to have an orderly and rational process for resolving unit issues. If the stipula- tion were set aside, the Board could order a consolidated hearing and could determine whether there should be one unit or two units or some other combination. By retain- ing the stipulation, the Board precludes that process.2 Our colleagues in the majority have misread our posi- tion. We do not say that a union must “identify is organ- izational plans or forfeit an executed stipulation agree- ment.” Our position is much more narrow and precise. We are dealing only with the specific circumstances of this case, i.e., where a union fails to disclose its present intention to imminently file a second petition, which sec- ond petition is material to the decision of whether to stipulate as to a first petition. We need go no further than those precise facts. Finally, we do not quarrel with the proposition that parties can stipulate to a unit that the Board, after litiga- tion, would not have found appropriate. However, the problem here is with the process of obtaining the stipula- tion, not the fact that the stipulated unit may be inappro- priate. 2 We recognize that any stipulated unit, by its nature, has a poten- tial impact on the shape of future units. However, the instant case presents “unusual circumstances” because: (1) the petitions were within hours of each other; (2) the Union knew of the imminent petition and the Employer did not; and (3) these matters were material.