Stamford Plaza Hotel and Conference Center and Stamford Plaza, LP, a Joint and/or Single Employer

National Labor Relations Board - Board Decisions

Nov 26, 2014

361 N.L.R.B. 1010 (N.L.R.B. 2014)

1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Stamford Plaza Hotel & Conference Center and
Stamford Plaza, LP, a joint and/or single em-
ployer and United Food and Commercial Work-
ers Union, Local 371. Cases 01–CA–098145 and
34–RC–081443
November 26, 2014
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
On May 9, 2013, the Board issued a Decision and Or-
der in this proceeding, which is reported at 359 NLRB
No. 119 (not reported in Board volumes). Thereafter, an
application for enforcement was filed in the United
States Court of Appeals for the District of Columbia Cir-
cuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014). Thereafter, the Board issued an order
setting aside the Decision and Order, and retained this
case on its docket for further action as appropriate.
The National Labor Relations Board has consolidated
the underlying representation proceeding with this unfair
labor practice proceeding and delegated its authority in
both proceedings to a three-member panel.
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. The Board’s May 9, 2013 decision states
that the Respondent is precluded from litigating any rep-
resentation issues because, in relevant part, they were or
could have been litigated in the prior representation pro-
ceeding. The prior proceeding, however, also occurred at
a time when the composition of the Board included two
persons whose appointments to the Board had been chal-
lenged as constitutionally infirm, and we do not give it
preclusive effect. Accordingly, we consider below the
representation issues that the Respondent has raised in
this proceeding.
In its response to the Notice to Show Cause, the Re-
spondent states that it “reasserts all of the issues raised in
the representation case.”1 In this regard, the Respondent
1 The Respondent also argues that it should be allowed to challenge
the appropriateness of the stipulated unit because the Board had no
valid quorum when it issued its decision in Specialty Healthcare, 357
NLRB 934 (2011), and therefore the certified unit is improper. We
reject this argument. First, the Respondent offers no justification for its
filed three objections to the election in Case 34–RC–
081443. In Objection 1, the Respondent alleges that
there were “threats of, and actual, violence that created
an atmosphere of intimidation and actually intimidated
voters who wanted to vote against the Petitioner.” Ob-
jection 2 alleges that “the election was affected by having
the election held where there was pending a “Type II
Unfair Labor Practice Charge.” Objection 3 refers to “all
issues raised in the representation hearing.” On July 13,
2012, the Regional Director issued his Report on Objec-
tions in which he recommended that all of the Respond-
ent’s objections be overruled. On July 18, 2012, the Re-
spondent filed exceptions to the Regional Director’s Re-
port on Objections which addressed only Objection 1.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
Respondent’s objections to the election held June 22,
2012, and the Regional Director’s report recommending
disposition of them. The election was conducted pursu-
ant to a Stipulated Election Agreement. The tally of bal-
lots shows 5 votes for and 1 against the Petitioner, with
no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has adopted the Regional Direc-
tor’s findings and recommendations,2 and finds that a
certification of representative should be issued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for United Food and Commercial Workers In-
ternational Union, Local 371, and that it is the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:

All full time and regular part time banquet housemen
employed by Stamford Hospitality, LP d/b/a Stamford
Plaza Hotel and Conference Center, LP and Stamford
Plaza, LP, joint employers, at the Stamford, Connecti-
cut facility; but excluding office clerical employees, all
other employees, and guards, professional employees
and supervisors as defined in the Act.
failure to assert this argument in a timely fashion prior to the election.
Rather, the Respondent entered into a Stipulated Election Agreement in
this case in which it waived the right to a hearing and expressly agreed
to the conduct of a secret ballot election. See ManorCare of Kingston,
PA, LLC, 361 NLRB 186, 186 fn. 1 (2014). In any event, the Board
issued its Specialty Healthcare decision on August 26, 2011, a time
when the Board unquestionably had a quorum. See NLRB v. Noel
Canning, supra; see also Matthew Enterprise, Inc. d/b/a Stevens Creek
Chrysler Jeep Dodge v. NLRB, No. 11–1310 (D.C. Cir., Nov. 7, 2014)
(finding Member Becker’s recess appointment constitutional under
Noel Canning).
2 In the absence of exceptions, we adopt pro forma the Regional Di-
rector’s recommendation to overrule the Respondent’s Objections 2 and
3.
361 NLRB No. 115

STAMFORD PLAZA HOTEL & CONFERENCE CENTER 1011

NOTICE TO SHOW CAUSE
As noted above, the Respondent has refused to bargain
for the purpose of testing the validity of the certification
of representative in the U.S. Courts of Appeals. Alt-
hough Respondent’s legal position may remain un-
changed, it is possible that the Respondent has or intends
to commence bargaining at this time. It is also possible
that other events may have occurred during the pendency
of this litigation that the parties may wish to bring to our
attention.
Having duly considered the matter,
1. The General Counsel is granted leave to amend the
complaint on or before December 8, 2014, to conform
with the current state of the evidence.
2. The Respondent’s answer to the amended complaint
is due on or before December 22, 2014.
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before January 12, 2015 (with affidavit of
service on the parties to this proceeding), as to why the
Board should not grant the General Counsel’s motion for
summary judgment. Any briefs or statements in support
of the motion shall be filed by the same date.