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

National Labor Relations Board - Board Decisions

Nov 6, 2019

368 NLRB No. 110 (N.L.R.B. 2019)

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.