367 NLRB No. 139 (N.L.R.B. 2019)

Troutbrook Company, LLC d/b/a Brooklyn 181 Hospitality, LLC

National Labor Relations Board - Board DecisionsJun 3, 2019

367 NLRB No. 139 (N.L.R.B. 2019)

367 NLRB No. 139 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. Troutbrook Company, LLC d/b/a Brooklyn 181 Hos- pitality, LLC and New York Hotel and Motel Trades Council, AFL–CIO. Case 29–CA–232891 June 3, 2019 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS MCFERRAN AND KAPLAN 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 December 18, 2018, by New York Hotel and Motel Trades Council, AFL-CIO (the Union), the General Counsel issued the complaint on February 11, 2019, alleging that Trout- brook Company, LLC d/b/a Brooklyn 181 Hospitality, LLC (the Respondent) has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to recognize and bargain with it follow- ing the Union’s certification in Case 29–RC–216327. (Official notice is taken of the record in the representa- tion proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(d). Frontier Ho- tel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allega- tions in the complaint and asserting affirmative defenses. On March 11, 2019, the General Counsel filed with the National Labor Relations Board a Motion for Summary Judgment. On March 14, 2019, the Board issued an or- der 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 General Coun- sel filed a reply to the Respondent’s response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the Union’s certification of repre- sentative 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). 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 do- mestic corporation with its principal office located at 515 Madison Avenue, 31st Floor, New York, New York, and a place of business located at 181 3rd Avenue, Brooklyn, New York, and has been engaged in the operation of a hotel. During the 12-month period preceding the issuance of the complaint, which period is representative of the Re- spondent’s operations generally, the Respondent, in its course and conduct of business operations described above, derived gross annual revenues in excess of $500,000, and purchased and received at its Brooklyn facility goods, supplies, and materials in excess of $5,000 directly from enterprises located outside of the State of New York. 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 The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: Included: All full-time and regular part-time front-desk employees, housemen/bellmen, housekeepers, laundry attendants and food and beverage employees employed by the Employer at 181 3rd Avenue, Brooklyn, New York. Excluded: Executive management, sales personnel, fire safety directors, all other employees including guards and supervisors, as defined by the National Labor Rela- tions Act. On June 26, 2018, the Board conducted a representa- tion election among the Respondent’s unit employees. On August 3, 2018, based on objections to that election, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 the Regional Director for Region 22 ordered that a rerun election be conducted.1 On September 6, 2018, the Board conducted a rerun election among the Respondent’s unit employees. A majority of the unit employees who voted in the Septem- ber 6, 2018 election selected the Union as the exclusive collective-bargaining representative of the Respondent’s unit employees. On September 24, 2018, the Regional Director for Re- gion 22 issued a Decision on Objections and Certifica- tion of Representative, certifying the Union as the exclu- sive collective-bargaining representative of the unit. On December 13, 2018, the Board denied the Respondent’s request for review of the Regional Director’s Decision. Troutbrook Co. LLC, 367 NLRB No. 56 (Dec. 13, 2018).2 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 On October 2, October 16, and December 17, 2018, the Union, in writing, requested that the Respondent commence negotiations for an initial collective- bargaining agreement regarding the terms and conditions of employment for the Respondent’s unit employees. On October 19, 2018, the Respondent, in writing, refused the Union’s request to commence negotiations for an initial collective-bargaining agreement covering unit employ- ees. Since that date, the Respondent has failed and re- fused 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 October 19, 2018, 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 1 The case was transferred to the Regional Director for Region 22 because the Respondent’s election objections included allegations of misconduct by Region 29. 2 In opposing the General Counsel’s summary judgment motion, the Respondent repeats a claim, first made in its request for review, that alleged misconduct by the Union before the first election had a “con- tinuing impact” on the rerun election. The Respondent did not offer any evidence of such “continuing impact” in its request for review and does not do so here. We note further that the Respondent did not file unfair labor practice charges related to the Union’s alleged misconduct. 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 bargain on request with the Union 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 on 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, Troutbrook Company, LLC d/b/a Brooklyn 181 Hospitality, LLC, Brooklyn, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with New York Hotel and Motel Trades Council, AFL-CIO 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 concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment: Included: All full-time and regular part-time front-desk employees, housemen/bellmen, housekeepers, laundry attendants and food and beverage employees employed by the Employer at 181 3rd Avenue, Brooklyn, New York. Excluded: Executive management, sales personnel, fire safety directors, all other employees including guards and supervisors, as defined by the National Labor Rela- tions Act. TROUTBROOK CO., LLC D/B/A BROOKLYN 181 HOSPITALITY, LLC 3 (b) Within 14 days after service by the Region, post at its facility in Brooklyn, New York, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 29, 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- 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 October 19, 2018. (c) Within 21 days after service by the Region, file with the Regional Director for Region 29 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. June 3, 2019 ______________________________________ John F. Ring, Chairman ______________________________________ Lauren McFerran, Member ______________________________________ Marvin E. Kaplan, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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.” 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 vio- lated 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 New York Hotel and Motel Trades Council, AFL- CIO (the Union) as the exclusive collective-bargaining representative of our employees 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: Included: All full-time and regular part-time front-desk employees, housemen/bellmen, housekeepers, laundry attendants and food and beverage employees employed by the Employer at 181 3rd Avenue, Brooklyn, New York. Excluded: Executive management, sales personnel, fire safety directors, all other employees including guards and supervisors, as defined by the National Labor Rela- tions Act. TROUTBROOK COMPANY, LLC D/B/A BROOKLYN 181 HOSPITALITY, LLC DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4 The Board’s decision can be found at www.nlrb.gov/case/29-CA-232891 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.