Trump Ruffin Commercial, LLC d/b/a Trump International Hotel Las Vegas

364 NLRB No. 143 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Trump Ruffin Commercial, LLC d/b/a Trump Inter- national Hotel Las Vegas and Local Joint Execu- tive Board of Las Vegas, affiliated with Unite Here International Union. Case 28–CA–181475 November 3, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed on August 4, 2016, by Local Joint Executive Board of Las Vegas, af- filiated with UNITE HERE International Union (the Un- ion), the General Counsel issued the complaint on Au- gust 17, 2016, alleging that Trump Ruffin Commercial, LLC d/b/a Trump International Hotel Las Vegas (the Respondent) has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to recognize and bargain with it following the Union’s certification in Case 28–RC–153650. (Official notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and deny- ing in part the allegations in the complaint, and asserting affirmative defenses. On September 1, 2016, the General Counsel filed a Motion for Summary Judgment. On September 2, 2016, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response, and the Union also filed a response joining the General Counsel’s motion. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification of representative based on its objections to the election in the underlying representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).1 Accordingly, we grant the Motion for Summary Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a lim- ited liability company with an office and place of busi- ness in Las Vegas, Nevada (the Respondent’s facility) and has been engaged in operating a hotel providing food and lodging. During the 12-month period ending August 4, 2016, the Respondent, in conducting its operations described above, purchased and received at its facility goods valued in excess of $50,000 directly from points located outside the State of Nevada, and derived gross revenues in ex- cess of $500,000. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on Decem- ber 4 and 5, 2015, the Union was certified on March 21, 2016,2 as the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: All full-time, regular part-time, and on-call employees in housekeeping, food and beverage (including all pool employees), and guest services employed by the Em- ployer at the Trump International Hotel in Las Vegas, Nevada; excluding all other employees including but not limited to front-desk employees, engineering and maintenance employees, office clerical employees, sales and marketing employees, security employees, human resources employees, finance employees, reve- nue employees, reservations, gift shop, spa, concierge 1 Member Miscimarra agrees that summary judgment is appropriate in this unfair labor practice case because the Respondent has not pre- sented any new matters that were not previously resolved in the prior representation case. Member Miscimarra did not participate in the prior representation case, and does not reach or pass on the merits of the Board’s decision in that case. 2 The original Decision and Certification of Representative, issued by the Regional Director on March 21, 2016, inadvertently omitted from the description of the unit the unit exclusions set forth in the stipu- lated election agreement. Accordingly, on August 16, 2016, the Re- gional Director issued a corrected Certification of Representative, cor- recting the description of the unit. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 and owner/guest relations, PBX, confidential employ- ees, managerial employees, guards, and all supervisors as defined under the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain At all material times, Brian Baudreau has held the po- sition of Managing Director and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent within the mean- ing of Section 2(13) of the Act. About March 22, 2016, the Union requested that the Respondent recognize and bargain collectively with the Union as the exclusive collective-bargaining representa- tive of the unit. Since about March 29, 2016, the Re- spondent has failed and refused to do so. We find that the Respondent’s conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since March 29, 2016 to rec- ognize and bargain with the Union as the exclusive col- lective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to recognize and bargain on request with the Un- ion and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Respondent, Trump Ruffin Commercial, LLC d/b/a Trump International Hotel Las Vegas, Las Vegas, Neva- da, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Local Joint Executive Board of Las Vegas, affiliated with UNITE HERE International Union as the exclusive collective-bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time, regular part-time, and on-call employees in housekeeping, food and beverage (including all pool employees), and guest services employed by the Em- ployer at the Trump International Hotel in Las Vegas, Nevada; excluding all other employees including but not limited to front-desk employees, engineering and maintenance employees, office clerical employees, sales and marketing employees, security employees, human resources employees, finance employees, reve- nue employees, reservations, gift shop, spa, concierge and owner/guest relations, PBX, confidential employ- ees, managerial employees, guards, and all supervisors as defined under the Act. (b) Within 14 days after service by the Region, post at its facility in Las Vegas, Nevada, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” TRUMP RUFFIN COMMERCIAL, LLC D/B/A TRUMP INTERNATIONAL HOTEL LAS VEGAS 3 ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since March 29, 2016. (c) Within 21 days after service by the Region, file with the Regional Director for Region 28 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. November 3, 2016 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Philip A. Miscimarra, Member ______________________________________ Lauren McFerran, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with Local Joint Executive Board of Las Vegas, affiliat- ed with UNITE HERE International Union as the exclu- sive collective-bargaining representative of our employ- ees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the fol- lowing appropriate bargaining unit: All full-time, regular part-time, and on-call employees in housekeeping, food and beverage (including all pool employees), and guest services employed by the Em- ployer at the Trump International Hotel in Las Vegas, Nevada; excluding all other employees including but not limited to front-desk employees, engineering and maintenance employees, office clerical employees, sales and marketing employees, security employees, human resources employees, finance employees, reve- nue employees, reservations, gift shop, spa, concierge and owner/guest relations, PBX, confidential employ- ees, managerial employees, guards, and all supervisors as defined under the Act. TRUMP RUFFIN COMMERCIAL, LLC D/B/A TRUMP INTERNATIONAL HOTEL LAS VEGAS The Board’s decision can be found at www.nlrb.gov/case/28-CA-181475 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.