Davidson Hotel Company LLC (Chicago Marriott at Medical District/UIC)

368 NLRB No. 110 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. Davidson Hotel Company, LLC (Chicago Marriott at Medical District/UIC) and UNITE HERE, Local 1. Case 13–CA–229523 November 6, 2019 DECISION AND ORDER BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL This is a refusal-to-bargain case in which the Respond- ent, Davidson Hotel Company LLC (Chicago Marriott at Medical District/UIC), is contesting the Union’s certifica- tion as bargaining representative in the underlying repre- sentation proceedings. Pursuant to a charge filed by UNITE HERE, Local 1 (the Union) on October 19, 2018, the General Counsel issued a complaint on June 26, 2019, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing to recognize and bargain with the Union following the Un- ion’s certifications in Cases 13–RC–217485 and 13–RC– 217487. (Official notice is taken of the record in the rep- resentation 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 denying in part the allegations in the complaint and asserting affirmative defenses. On July 18, 2019, the General Counsel filed a Motion for Summary Judgment. On July 24, 2019, the Board is- sued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be 1 Chairman Ring took no part in the consideration of this case. 2 The Respondent’s answer denies the complaint allegations that the bargaining units are appropriate, that the Union is the properly certified exclusive collective-bargaining representative of the employees in the units, and that the Respondent’s refusal to bargain with the Union vio- lates Sec. 8(a)(5) and (1). The Respondent also denies knowledge of whether the Union filed the charge in this proceeding, although it admits that it received the charge. In addition, the Respondent asserts as affirm- ative defenses that: (1) the units improperly include supervisory employ- ees; (2) the petition for representation violates the petition-bar rule; (3) laboratory conditions were destroyed by improper acts by union repre- sentatives and agents; and (4) the units were improper under the commu- nity of interest standard in PCC Structurals, Inc., 365 NLRB No. 160 (2017). These issues were fully litigated and resolved in the underlying representation proceeding and therefore do not raise any litigable issues in this proceeding. See Voices for Int’l Bus. & Educ., Inc. d/b/a Int’l High Sch. of New Orleans, 365 NLRB No. 66, slip op. at 1 fn. 1 (2017), enfd. 905 F.3d 770 (5th Cir. 2018); see also STP Nuclear Operating Co., 367 NLRB No. 102, slip op. at 1 fn. 1 (2019). Finally, the Respondent asserts that the complaint fails to state a claim upon which relief can be granted, and that the complaint is vague and therefore the Respondent has been denied due process. The Respondent has not offered any ex- planation or evidence to support these bare assertions. Thus, we find that these affirmative defenses do not preclude summary judgment in this granted. The Respondent filed an Opposition to the Mo- tion for Summary Judgment. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.1 Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the Union’s certifications based on contentions that were raised and rejected in the underlying representation proceeding.2 In its Opposition, the Re- spondent reiterates the arguments previously made in the representation hearing, contending that they constitute special circumstances requiring the Board to depart from its typical practice and consider arguments previously made in the representation case proceedings.3 We reject the Respondent’s argument that this case pre- sents special circumstances. All representation issues raised by the Respondent were or could have been litigated in the prior representation proceedings. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro- ceedings. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.4 On the entire record, the Board makes the following proceeding. See, e.g., George Washington Univ., 346 NLRB 155, 155 fn. 2 (2005), enfd. 2006 WL 4539237 (D.C. Cir. 2006); Circus Circus Hotel, 316 NLRB 1235, 1235 fn. 1 (1995). 3 On September 30, 2019, the Respondent filed a notice of supple- mental authority, pursuant to Rule 102.6, asserting that the Board’s de- cision in Boeing Co., 368 NLRB No. 67 (2019), supports its position that the petitioned-for units are inappropriate and that a single unit combining the Food & Beverage employees (F&B) and the Housekeeping employ- ees would be more appropriate. The General Counsel responded on Oc- tober 10, 2019, denying that the Boeing decision affects the outcome of this case. We find no merit in the Respondent’s contention that Boeing requires a fresh analysis of the previously litigated unit-appropriateness issues. 4 The Respondent’s request that the complaint be dismissed is there- fore denied. Member Emanuel dissented from the Board’s order denying review in the underlying representation proceeding. Member Emanuel would have granted review, finding that the Employer raised a substan- tial issue as to the appropriateness of the petitioned-for separate house- keeping and F&B units, consistent with PCC Structurals, Inc., 365 NLRB No. 160 (2017), and The Boeing Co., supra. While he remains of that view, Member Emanuel agrees that Respondent has not presented any new matters that are properly litigable in this unfair labor practice proceeding and would grant the motion for summary judgment on this basis. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, Davidson Hotel Company LLC (Chicago Marriott at Medical Dis- trict/UIC), an Illinois corporation, with an office and place of business in Chicago, Illinois, has been engaged in the business of providing hotel services. During the calendar year preceding issuance of the complaint, a representative period, Respondent derived gross revenues in excess of $500,000. During this same period of time, the Respond- ent derived more than $50,0005 in gross revenue from sales or performance of services directly to customers out- side the State of Illinois. 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, UNITE HERE Local 1, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following representation elections held on May 2, 2018 in case 13–RC–217485 (housekeeping unit) and case 13– RC–217487 (food and beverage unit), the Union was cer- tified on August 28, 2018, as the exclusive collective-bar- gaining representative of the employees in the following appropriate units: Housekeeping Unit: All regular part-time and full-time housekeeping em- ployees (including room attendants, housekeeping su- pervisors, laundry attendants, and house persons) em- ployed by Davidson Hotel Company, LLC (Chicago Marriott at Medical District/UIC) located at 625 S. Ash- land, Chicago, Illinois facility; excluding all other em- ployees, valet employees, engineering employees, food and beverage employees, front desk department em- ployees, guards, managers, and supervisors as defined in the Act. Food and Beverage Unit: All regular part-time and full-time food and beverage employees including dishwashers, cooks, outlet servers, room service servers, banquet servers, banquet captains, bartenders, and lounge attendants employed by Da- vidson Hotel Company, LLC (Chicago Marriott at Med- ical District/UIC) at its facility located at 625 S. 5 The complaint (par. 2(b)) contained an apparent typographical error, alleging that the Respondent derived $5000 in gross revenue from out of state. We correct the error. We further note that the Respondent admits Ashland, Chicago, Illinois; excluding all other employ- ees, valet employees, engineering employees, house- keeping employees, front desk department employees, guards, managers, and supervisors as defined in the Act. On June 5, 2019, the Board denied the Respondent’s request for review of the Union’s certification in Cases 13–RC– 217485 and 13–RC–217487. The Union continues to be the exclusive collective-bargaining representative of the employ- ees in the above appropriate units under Section 9(a) of the Act. B. Refusal to Bargain By email dated June 12, 2019, the Union requested that the Respondent bargain collectively with it as the exclu- sive collective-bargaining representative of the employees in the two units. In a letter dated June 19, 2019, the Re- spondent informed the Union that it would not recognize and bargain with the Union in either the housekeeping or food and beverage units. Since that date, the Respondent has failed and refused to recognize and bargain with the Union. 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 June 19, 2019, to recog- nize and bargain with the Union as the exclusive collec- tive-bargaining representative of employees in the appro- priate units, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 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 bargain on request with the Union, and, if an un- derstanding 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 bar- gain 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), that, at all material times, it has been an employer engaged in commerce within the meaning of the Act. DAVIDSON HOTEL COMPANY, LLC (CHICAGO MARRIOTT AT MEDICAL DISTRICT/UIC) 3 enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Re- spondent, Davidson Hotel Company LLC (Chicago Mar- riott at Medical District/UIC), Chicago, Illinois, its offic- ers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with UNITE HERE Local 1 as the exclusive collective-bar- gaining representative of the employees in the housekeep- ing and food and beverage bargaining units. (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 exclusive representative of the employees in the following appropri- ate units on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: Housekeeping Unit: All regular part-time and full-time housekeeping em- ployees (including room attendants, housekeeping su- pervisors, laundry attendants, and house persons) em- ployed by Davidson Hotel Company, LLC (Chicago Marriott at Medical District/UIC) located at 625 S. Ash- land, Chicago, Illinois facility; excluding all other em- ployees, valet employees, engineering employees, food and beverage employees, front desk department em- ployees, guards, managers, and supervisors as defined in the Act. Food and Beverage Unit: All regular part-time and full-time food and beverage employees including dishwashers, cooks, outlet servers, room service servers, banquet servers, banquet captains, bartenders, and lounge attendants employed by Da- vidson Hotel Company, LLC (Chicago Marriott at Med- ical District/UIC) at its facility located at located at 625 S. Ashland, Chicago, Illinois; excluding all other em- ployees, valet employees, engineering employees, housekeeping employees, front desk department 6 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the employees, guards, managers, and supervisors as de- fined in the Act. (b) Within 14 days after service by the Region, post at its facility in Chicago, Illinois, copies of the attached no- tice marked “Appendix.”6 Copies of the notice, on forms provided by the Regional Director for Region 13, after be- ing signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered 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 employees and former employees em- ployed by the Respondent at any time since June 19, 2019. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsi- ble official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. November 6, 2019 ______________________________________ Lauren McFerran, Member _____________________________________ Marvin E. Kaplan, Member _____________________________________ William J. Emanuel, Member (SEAL) NATIONAL LABOR RELATIONS BOARD United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 4 DECISIONS OF THE 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 vi- olated 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 ac- tivities. WE WILL NOT fail and refuse to recognize and bargain with UNITE HERE Local 1 (the Union) as the exclusive collective-bargaining representative of our employees in the housekeeping and food and beverage bargaining units. 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 con- ditions of employment for our employees in the following bargaining units: Housekeeping Unit: All regular part-time and full-time housekeeping em- ployees (including room attendants, housekeeping su- pervisors, laundry attendants, and house persons) em- ployed by us at our 625 S. Ashland, Chicago, Illinois facility; excluding all other employees, valet employees, engineering employees, food and beverage employees, front desk department employees, guards, managers, and supervisors as defined in the Act. Food and Beverage Unit: All regular part-time and full-time food and beverage employees including dishwashers, cooks, outlet servers, room service servers, banquet servers, banquet captains, bartenders, and lounge attendants employed by us at our facility located at 625 S. Ashland, Chicago, Illinois; ex- cluding all other employees, valet employees, engineer- ing employees, housekeeping employees, front desk de- partment employees, guards, managers, and supervisors as defined in the Act. DAVIDSON HOTEL COMPANY LLC (CHICAGO MARRIOTT AT MEDICAL DISTRICT/UIC) The Board’s decision can be found at www.nlrb.gov/case/13-CA-229523 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.