[00:00:05] Speaker 03:
Case number 19-1235 et al.

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Davidson Hotel Company, LLC, Chicago Marriott, at Medical District slash UIC, Petitioner, National Labor Relations Board.

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Mr. Delanquil for the petitioner, Ms.

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Isbell for the respondent, Mr. Treadwell for the intervener.

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Good morning.

[00:00:27] Speaker 00:
Good morning.

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and may it please the court counsel, your honors.

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I'm Mark Delacueil arguing on behalf of the Petitioner Davidson Hotel Company.

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The fundamental error in the NLRB's decision in this case is its lack of consistency with prior decisions on the appropriate composition of a bargaining unit at a full service hotel.

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First, the decision is irreconcilable with an LRB precedent in Ramada, Beverly Hills.

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Second, the decision is inconsistent with the board's reasoning in denying a previous petition of the union to certify a bargaining unit, including both housekeeping and food and beverage employees at this hotel.

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And the inevitable result of these inconsistent decisions is a fractured bargaining unit that does not include front desk employees and that while putatively including separate units of housekeeping and food and beverage is being treated functionally as a single unit.

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First, I'd like to address the NLRB's precedent in Ramada Beverly Hills.

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Our position is that this case is on all fours with Ramada Beverly Hills.

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First, concerning the critical topic of functional integration, both the hotel in this case and Ramada Beverly Hills employed a single general manager with final hiring and firing authority, as well as final authority over policy at the hotel.

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Second.

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In the board reference opinions,

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Logian and Western Lodging, correct?

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It did, Your Honor.

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All right.

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And when you look at those opinions, the board reviews its full service small hotel cases, specifically Ramada Beverly Hills, Ramada Atlantic,

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Romana in West, and it talks about what it looks for to come within that kind of precedent.

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And it says specifically what it's looking for.

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And the findings here were that those elements did not exist here in the Davidson Hotel.

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And those findings, your honor, are unsupported by substantial evidence.

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And I'd like to address briefly Western Council.

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That's a different argument.

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The argument was that the board's decision was irreconcilable with its precedent.

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I'm saying at least the board cited cases where it distinguished its precedent, including

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Ramada.

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Your Honor, the standard of review for a decision like this is articulated in Blue Man Vegas and other cases is whether the board's decision is arbitrary or unsupported by substantial evidence.

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With regard to the board's distinctions of Ramada-Beverly Hills, the distinctions are unsupported by substantial evidence, which makes its decision arbitrary, i.e.

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irreconcilable, with the Ramada-Beverly Hills cases.

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And with respect to the Western lodging and lodgian cases, there are serious distinctions that make this case far more like Ramada-Beverly Hills

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Even on the record, the board found in Western lodging, there was no centralized management and hiring by division supervisors, which cuts far against the type of functional integration that you see at this hotel.

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And in Logion, the board's decision was influenced by a factor of which there's no evidence in the record in this case, which is regional industry practice about the appropriate compositions of bargaining units.

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That was a key factor in several of the decisions cited by the NLRB and the union, including Logion as well as Omni.

[00:05:13] Speaker 04:
All I'm getting at is that there are distinctions

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But the findings as to the Davidson Hotel discuss the nature of the management control, the nature of the transfers between employees.

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And in the board's view, found that that type of management structure and transfer, for example, did not exist at the Davidson Hotel.

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And you argue, as I understand it,

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Those findings are unsupported by evidence in the record.

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And I think what I, the core of my argument is that those findings are irreconcilable with Ramada Beverly Hills because they are not in fact inconsistent with what happened in Ramada Beverly Hills.

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And if they were viewed to be inconsistent, and I don't necessarily view them to be inconsistent, that they would then be unsupported by substantial evidence.

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So I'd like to address the specific factual findings of this case and Ramada Beverly Hills to show the similarities in the key topics that go to determining whether it's appropriate to exclude a unit of employees like the front desk employees.

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First is functional integration.

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Both hotels employed a single general manager with final hiring and firing and policy authority, as well as a rotating manager on duty authority system that made the heads of different groups of employees at the hotel in charge of the hotel when the general manager was not there.

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Second,

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were common terms and conditions.

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In both cases, there are common terms and conditions that govern all employees.

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Third is functional integration to perform services for the guests.

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And here is where I think some of the substantial evidence issue comes in.

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If you look at Ramada Beverly Hills and other decisions like Atlanta Hilton and Western Hotel, the core to functional integration isn't whether there is some type of job overlap between employees.

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It's whether all of the employees are being directed by a central management to serve the ultimate goal of the employer at the facility, in this case to provide a seamless experience for the hotel's guests.

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But isn't that true of all hotel employees?

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When I go to a hotel, I may see the doorman and I ask him, where's the restaurant?

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And I ask him, who's the best?

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You know, whatever.

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So I don't understand this seamless experience when the board has acknowledged that approach, but broken down some of these things.

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And at least it found that your general manager

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did not have the type of control in these units that it held were appropriate.

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That was true in some of these other hotels.

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And you're saying that is a finding that is unsupported by substantial evidence?

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It is unsupported by substantial evidence as much as it is viewed as different than Ramada hotels.

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And I heard two points in your question, Judge Rogers.

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The first is whether all hotels aim to provide a seamless experience for their guests through central management.

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And I don't think that's necessarily the case.

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What I was trying to get at is that all of these hotels, especially these small hotels, are trying to make the guests happy.

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All right?

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I agree with that.

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That doesn't mean that there can't be appropriate units

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I agree, Your Honor, that trying to make the guest happy does not mean that it would be appropriate to have any particular bargaining unit.

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But where there is substantial interaction between the employees, in this case, the board found regular daily interaction between the front desk as well as the housekeeping and food and beverage employees,

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And there's a centralized management.

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And the management is virtually identical in Ramada Beverly Hills and this hotel with the general manager and the manager on duty system.

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That that's the type of functional integration the board has looked at to find that there is and it is not appropriate to have separate bargaining units of the housekeeping and the food and beverage.

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Industries is your I mean, are you focusing more on the lack of substantial evidence here or on the board's failure to adequately distinguish its other precedents, you know, along the lines of LeMoyne Owens and other cases like that.

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Or are you making are those two distinct arguments.

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I'm not clear from what you're saying if you're viewing them as part of the same argument or if there are two distinct arguments.

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I think, Your Honor, our argument is primarily, and I apologize if this was not clear earlier, that the decision here is not reconcilable with Ramada Beverly Hills, so the former.

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And in response to certain specific factual points, we believe that they are unsupported by substantial evidence.

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But even if you take the board's findings as a whole, we believe they are still

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The specific factual findings that it made as opposed to the ultimate conclusions applying the law to those facts are irreconcilable with Ramada Beverly Hills.

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And you raised those claims before the regional director as well as the board.

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We raised those claims before the regional director and the board, and the board split 2-1 on those claims with member Emanuel dissenting.

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He would have found, as we argued, that the only appropriate bargaining unit at this hotel includes both

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food and beverage and front desk.

[00:11:39] Speaker 01:
So I understand.

[00:11:43] Speaker 01:
I thought your argument was number one, in the first go round, the reason that the regional director rejected the two units or the single unit was because it didn't incorporate the front desk employees.

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Is that correct?

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That's correct.

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And we do believe that the decision, the second decision to certify the separate housekeeping and food and beverage units was inconsistent with the reasoning of the NLRB's first decision.

[00:12:11] Speaker 01:
If you had to put the front desk people into the single unit, why isn't that also the death knell for the two units?

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We believe it is.

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And we believe if you look, and this is on page 231 of the Joint Appendix, and this is the second inconsistency, Your Honor, if you look at page 231 of the Joint Appendix,

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the regional director listed five reasons why it was inappropriate to exclude front desk employees.

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First, they had substantially the same terms and conditions.

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That applies whether you have separate units for housekeeping and food and beverage.

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Second, there was regular contact between employees to serve guests.

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That also applies whether or not you have separate housekeeping and food and beverage units.

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Third, the employees were scheduled based on hotel occupancy.

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That applies equally whether you have separate front food and beverage and housekeeping units.

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Fourth, the employees had the same orientation.

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That applies equally whether you have separate food and beverage and housekeeping units.

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And fifth, that there was some interchange between front desk and housekeeping as well as front desk and food and beverage.

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That applies equally whether you have separate

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food and beverage and housekeeping units.

[00:13:31] Speaker 01:
Okay.

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I had a third question to follow up.

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If in fact the front desk employees and by law should have been included in the single unit.

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And also in the original opinion, the regional director said that it was appropriate to separate out the food and beverage in the room service or the room people.

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Correct.

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then what unit would you put the, if you have two units, which is what was suggested, you can have two units, which was what was suggested in the original opinion, what unit, if you tried to put any, the union tried to put two units together or separate the units, what unit would you put the front desk people in?

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they would go with housekeeping, Your Honor.

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That's an alternative argument we've made.

[00:14:22] Speaker 01:
And the reason... So let me just understand.

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Why doesn't that mean that the beverage unit is okay?

[00:14:31] Speaker 00:
Well, that is our alternative argument, is that if the court doesn't find that the only appropriate unit at this hotel includes food and beverage, housekeeping, and front desk, that alternatively it should find that housekeeping needs to include front desk, they're part of the same rooms division at the hotel, and there's substantial interchange between

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those units.

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But, you know, in particular, you know, there's there are substantial similarities there.

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I would say as to the consistency of the decisions, we recognize that in an under reason dicta footnote on the final page of the regional director's first decision, he suggests that

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a separate unit approach may be appropriate, but we believe when you consider the consistency of decisions, particularly in a single case, you need to go to the reasoning of those decisions, not to a footnote on the last page.

[00:15:28] Speaker 01:
But my question remains, why if accepting everything you've just said in your alternative argument, what does that mean that the food and beverage unit is is okay?

[00:15:40] Speaker 01:
Yes.

[00:15:41] Speaker 01:
Okay.

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I see that I'm out of time.

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If there are further questions, I'd be happy to answer them.

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Thank you.

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We'll hear counsel for the board.

[00:15:54] Speaker 07:
Thank you, Your Honor.

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May it please the court, Kelly Isbell here on behalf of the National Labor Relations Board.

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In making a unit determination, the board's task is to ensure that the petition for units are an appropriate unit for bargaining.

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It does not have to choose the most appropriate unit or the only appropriate unit.

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And this court does not overturn board unit determinations unless Davidson has proved that those units are truly inappropriate, which it has not done on this record.

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So if we look at each unit individually, the housekeeping unit and the food and beverage unit, each of those units the board determined share an internal community of interest.

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They are separately supervised.

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They have different skills, different functions, different training.

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Then the board compared those two units to the front desk employees to see whether or not the differences between the housekeeping, the food and beverage, and the front desk, whether or not their differences outweighed their similarities, and determined on the basis of this record that they do.

[00:17:06] Speaker 07:
All three, I'll just call them units for the sake of ease in speaking,

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all three groups of employees or units have separate supervision.

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There is a general manager who is over the hotel, but each one of those groups of employees has a separate manager who is over their work lives, who decides whether or not to discipline them, who has initial hiring authority.

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Each of those groups of employees has different functions, different jobs within the hotel.

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They work somewhat different hours.

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They have different training.

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So the food and beverage people have alcohol and food handling licensing requirements.

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Front desk employees get customer service training that the housekeeping employees don't get.

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The regional director found that, yes, this hotel has some functional integration.

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But when we're talking about functional integration, we're not talking about just whether or not there's a general manager over the hotel.

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We're talking about whether or not the employees, how closely they work together to accomplish a single task.

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So housekeepers go clean the rooms.

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Of course, they work in conjunction with the front desk because if the front desk doesn't check people into the hotel, there is no room to clean.

[00:18:26] Speaker 06:
I mean, I guess, you know, on a lot of these, you know, factual determinations about how the hotel works together, of course, the board, you know, we defer to a lot of the board's factual findings in this area.

[00:18:40] Speaker 06:
But I'm concerned about the fact that they raised a number of cases, you know, the cases that were just discussed by petitioner, that the board did not address, right?

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And it seems that the board has some obligation

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under Lemoyne Owens and other cases to distinguish other cases.

[00:19:01] Speaker 06:
And if they're going to be deciding and adjudicating cases on a case by case basis and petitioner raises cases that are arguably very similar facts, doesn't the board have an obligation to distinguish those other cases?

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And wouldn't that at a minimum require then at least a remand to the board to distinguish those earlier precedents?

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I don't recall that they explicitly raised the issue that the regional director did not distinguish certain cases.

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I mean, I would have to go back through the decision and direction of election to make sure he didn't mention Atlanta Hilton.

[00:19:41] Speaker 06:
Well, I think the briefing is pretty clear that they raised these cases and distinguished them in a number of ways.

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But I mean, a different issue.

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If the argument is actually that the board failed or the regional director here

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failed in his responsibility to adequately distinguish cases, that has to be raised.

[00:20:01] Speaker 07:
But I don't think they didn't raise that issue.

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That particular legal issue?

[00:20:07] Speaker 07:
No, Your Honor.

[00:20:09] Speaker 01:
Are you talking raising before the board or raising in this court?

[00:20:14] Speaker 07:
Raising before the board.

[00:20:15] Speaker 07:
Right.

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If they believe the regional director made either an incorrect factual finding or an incorrect legal finding, they have to raise that before the board.

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and they filed exceptions to the regional director's decision and direction of election.

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But the regional director went through many cases and showed why this is not the kind of case where functional integration required him to put all these employees together.

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Functional integration in a case like Atlanta Hilton, the general manager there had control over minor details such that he was controlling how elevator doors were cleaned.

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In Ramada Beverly Hills, there was substantial interchange between employees.

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Housekeeping employees and bell staff who were attached to the front desk were both delivering food throughout the hotel.

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Bell staff and front desk assisted with housekeeping.

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So those kinds of findings are just not here.

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The front desk

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I think the testimony is that maybe three times a year when the hotel is severely overcrowded, they might have to strip beds.

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But cleaning hotel rooms is not part of their job.

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The housekeeping group does not fill in for the front desk.

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They do not do anything at the front desk.

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Food and beverage employees don't assist the housekeepers.

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What we have is a little bit of contact, which the regional director acknowledged.

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and some functional integration because it is a hotel and everyone is trying to ensure that there is a good guest experience.

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But doing a particular task like preparing a meal or serving a drink or cleaning a hotel room, you do not need the front desk to come and help you do that.

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You need them to check in people, you need them to do their own work.

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And that's the difference between the kind of functional integration in a case like

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Atlanta Hilton or Ramada Beverly Hills.

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So here the board did two types of analysis, right?

[00:22:28] Speaker 07:
You first have to determine that the employees in the petition for unit share community of interest.

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Clearly they do.

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Housekeeping and food and beverage units are traditional industry units.

[00:22:44] Speaker 07:
then it looked at whether or not they are different from the front desk.

[00:22:48] Speaker 07:
Just sharing similar terms and conditions of employment is not enough to require the board to put everyone together.

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And it does not show that the units are truly inappropriate.

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They use the same parking lot.

[00:23:01] Speaker 07:
They use the same cafeteria.

[00:23:03] Speaker 07:
They clock in at the same time clock, but they do not have the same supervision.

[00:23:08] Speaker 07:
They do not have the same hours necessarily.

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They don't do the same jobs.

[00:23:17] Speaker 07:
So I'm not sure if your honors have additional questions for me on this issue.

[00:23:29] Speaker 07:
Should we talk a little bit about the first case?

[00:23:31] Speaker 07:
I think there was some concern about the initial regional director's decision here and why the two cases are different and why they came out differently.

[00:23:41] Speaker 07:
In the very first case, the union petitioned for a combined

[00:23:45] Speaker 07:
or petition for a combined unit of housekeeping and food and beverage leaving out the front desk.

[00:23:50] Speaker 07:
The regional director did the same analysis he did here.

[00:23:53] Speaker 07:
Do those two groups of employees share a community of interest?

[00:23:57] Speaker 07:
Yes, same terms and conditions of employment, same parking lot, same time clock, the same general manager.

[00:24:03] Speaker 07:
But when you compare them to the front desk, that's when the differences appear.

[00:24:08] Speaker 07:
Because the front desk also uses the same time clock, same cafeteria, same parking lot,

[00:24:13] Speaker 07:
have almost the same terms and conditions of employment.

[00:24:18] Speaker 06:
I'm sorry.

[00:24:19] Speaker 06:
So I was just looking through the materials here and it does seem that they raised this question about the departure, the regional director's departure from board precedents before the board and it's request for review.

[00:24:35] Speaker 06:
They say in one of their headers and then have further discussion, substantial question exists concerning the legality of the unit based on the RD's departure from the board's precedent.

[00:24:47] Speaker 06:
So it does seem that they raised it before the board.

[00:24:51] Speaker 07:
Then my apologies, because sometimes those requests for review can be a little long and I don't remember everything.

[00:24:58] Speaker 07:
I think the regional director here adequately distinguished the precedent.

[00:25:04] Speaker 07:
Remember hotel cases, almost every unit determination case.

[00:25:09] Speaker 07:
They're decided on the facts and are decided on a case by case basis.

[00:25:14] Speaker 07:
And the regional director was very clear about why he made the functional integration decision he made in this case.

[00:25:22] Speaker 07:
He relied on cases that are very similar to this case.

[00:25:25] Speaker 07:
And the fact that he didn't distinguish very specific cases, I don't think that that does not show that he didn't do his due diligence in reviewing the law in this area and applying that law to these facts.

[00:25:39] Speaker 07:
which show that there is not enough functional integration to require the board to find that individual units of housekeepers and food and beverage are truly inappropriate.

[00:25:49] Speaker 07:
Remember, it just has to be an appropriate unit for bargaining.

[00:25:53] Speaker 01:
What was the regional director's rationale for not including the front desk employees in either the beverage or the housekeeping units?

[00:26:07] Speaker 07:
First of all, you start with the petition for a unit.

[00:26:09] Speaker 07:
So that's your starting place.

[00:26:12] Speaker 07:
And the front desk employees have no more community of interest with either group.

[00:26:21] Speaker 07:
They have similar terms and conditions of employment, but there's nothing that require them to be in either group.

[00:26:28] Speaker 07:
in either group.

[00:26:29] Speaker 07:
They are separately supervised from the housekeeping employees.

[00:26:34] Speaker 07:
They're in the same room division, but the room division has no manager.

[00:26:38] Speaker 07:
They are each supervised by a separate, either the front desk supervisor or the housekeeping supervisor.

[00:26:44] Speaker 07:
And those two people report to the general manager.

[00:26:47] Speaker 07:
So they're at the same level of, and other than that, in the same terms and conditions of employment, time clock, parking lot,

[00:26:54] Speaker 07:
some interchange and some interaction during the day.

[00:26:57] Speaker 01:
You realize that what you've just said is totally inconsistent with the original decision saying you had to include the front desk employees.

[00:27:07] Speaker 07:
The original decision said that you couldn't have a unit that was a combined housekeeping and food and beverage without the front desk because what they share

[00:27:22] Speaker 07:
What all three groups share are the same.

[00:27:27] Speaker 07:
Does that make sense?

[00:27:28] Speaker 07:
I'm thinking of the blue man.

[00:27:29] Speaker 07:
Okay.

[00:27:32] Speaker 07:
So you've got three groups of employees.

[00:27:34] Speaker 07:
They all share some things in common, some terms and conditions of employment.

[00:27:38] Speaker 07:
They all report to the general manager.

[00:27:41] Speaker 07:
They all work at the same hotel.

[00:27:43] Speaker 07:
Each group shares those same things, but each group also has its own internal community of interest.

[00:27:51] Speaker 07:
which makes all three groups different from each other.

[00:27:54] Speaker 07:
So if you take two of those groups and put them together, what they share, they also share with the third group.

[00:28:01] Speaker 07:
So if you put front desk and food and beverage together, they do share some terms and conditions of employment and some community of interest factors.

[00:28:10] Speaker 07:
But what they share, they also share with the housekeepers.

[00:28:15] Speaker 07:
The differences between the three groups

[00:28:18] Speaker 07:
outweigh the similarities.

[00:28:20] Speaker 07:
That's the basis of the board's findings in the first.

[00:28:22] Speaker 01:
Like this rock is heavier than that string is long.

[00:28:28] Speaker 07:
If you want to put it that way, right?

[00:28:29] Speaker 07:
I mean, sharing the same, some of the same terms and conditions of employment, because remember the front desk now has lower, higher wages and lower medical costs.

[00:28:40] Speaker 01:
Okay.

[00:28:40] Speaker 01:
Got your argument.

[00:28:41] Speaker 07:
Thank you.

[00:28:43] Speaker 07:
If there are no more.

[00:28:44] Speaker 04:
So to respond,

[00:28:47] Speaker 04:
to what I think I understand is petitioner's argument.

[00:28:53] Speaker 04:
It said to the regional director, we're just like Ramada Beverly Hills.

[00:29:04] Speaker 04:
And the board never said, no, you're not.

[00:29:09] Speaker 04:
What it did was to cite its decisions that discussed

[00:29:16] Speaker 04:
Ramada Beverly Hills, Ramada Atlanta, and a number of other hotels, identifying the factors the board interpreted those precedents to focus on.

[00:29:34] Speaker 04:
What I think I hear in argument, and I'll ask counsel for petitioner, is that, and I heard my colleague

[00:29:44] Speaker 04:
discuss a Supreme Court case, it wasn't cited either, to the board.

[00:29:50] Speaker 04:
But the question is, from the point of view of this court's review of the board's decision, is it legal error in the sense of being arbitrary and capricious

[00:30:13] Speaker 04:
if the board cites to authority distinguishing its precedent but doesn't specifically say and your reliance saying that you're exactly the same as Ramada Beverly Hills is arbitrary and capricious.

[00:30:30] Speaker 04:
In other words, there has to be a separate paragraph as it were saying that petitioners relying on Beverly Hills and we don't think that is a proper

[00:30:43] Speaker 04:
case on which to rely, even though in the cases we did cite, we pointed out why Beverly Hills is different.

[00:30:52] Speaker 04:
I just want to be sure what we're saying the board has to do in response to the type of argument that was raised before the board by petitioner as to Beverly Hills.

[00:31:09] Speaker 07:
Right.

[00:31:12] Speaker 07:
I don't know of any case that required the board to specifically address every single case raised.

[00:31:20] Speaker 07:
The board is required to make, to do reason decision making.

[00:31:24] Speaker 07:
And on this record, I don't think that can be assailed.

[00:31:29] Speaker 07:
The regional director reviewed multiple cases and laid out all of the factors that the board traditionally relies on.

[00:31:37] Speaker 07:
in making community of interest decisions.

[00:31:39] Speaker 07:
And as you point out, Judge Rogers went through cases that have themselves distinguished Atlanta Hilton and Ramada Beverly Hills in cases like this.

[00:31:47] Speaker 04:
I'm trying to understand what the rule would be where we just say that it would be inappropriate for an agency to cite its precedent, including that precedent on which petitioner relies, where a petitioner

[00:32:07] Speaker 04:
is saying, essentially, we're just like Beverly Hills.

[00:32:14] Speaker 04:
I'm just trying to understand what the administrative principle would be here in that regard, because that's sort of what I hear Petitioner's Council arguing today and in its brief.

[00:32:31] Speaker 04:
You didn't talk about Beverly Hills, therefore,

[00:32:36] Speaker 04:
Your decision is arbitrary and capricious.

[00:32:41] Speaker 07:
That may, in fact, be a better question for Petitioner's Council, because I don't know of any administration.

[00:32:47] Speaker 07:
I'm sorry?

[00:32:48] Speaker 04:
I just wanted to be sure, since I won't be coming back to you, I am going to ask Petitioner's Council.

[00:32:55] Speaker 04:
But based on the questions from my colleagues and from me, to be sure we understood the argument that Petitioner's Council was making,

[00:33:05] Speaker 04:
I wanted you to have an opportunity to say why that principle either is required or isn't required.

[00:33:14] Speaker 07:
I don't believe it is required, Your Honor.

[00:33:17] Speaker 07:
I mean, the board is required to engage in reason decision making.

[00:33:21] Speaker 07:
I don't know of any case that requires the board.

[00:33:24] Speaker 07:
And in a case where it is reviewing totality of circumstances

[00:33:30] Speaker 07:
test to determine unit determinations, that it has to address very specific cases.

[00:33:36] Speaker 07:
Of course, if this were a case where someone raised PCC structurals and the board somehow didn't address the underlying unit determination test in this case, that's a different issue.

[00:33:47] Speaker 07:
But we're talking about very specific factual cases that the board, I don't know of any administrative law principle that would require the board

[00:34:00] Speaker 07:
to literally distinguish every single case that.

[00:34:03] Speaker 04:
Every single case, that's what I'm trying to distinguish on.

[00:34:07] Speaker 04:
Petitioner says, you're wrong, you're wrong for all kinds of reasons and says, your decision is inconsistent with Beverly Hills.

[00:34:17] Speaker 04:
And the board's response is, look at what we've said about Beverly Hills and all these other cases in this opinion.

[00:34:29] Speaker 04:
And they cite that.

[00:34:33] Speaker 07:
That is enough, Your Honor.

[00:34:35] Speaker 04:
So Council, excuse me.

[00:34:37] Speaker 04:
Did my colleagues have any further questions?

[00:34:40] Speaker 04:
On to Council.

[00:34:41] Speaker 02:
Thank you.

[00:34:42] Speaker 04:
All right.

[00:34:44] Speaker 04:
An intervener comes next, I believe.

[00:34:47] Speaker 02:
Yes, thank you.

[00:34:49] Speaker 02:
So first, I'd like to situate the two cases that the employer relies primarily upon, Ramona Beverly Hills and Atlanta Hilton, within the historical context of NLRB decision making in this area.

[00:35:03] Speaker 02:
For 50 years, since at least 1970, the NLRB has found regularly, consistently, that front desk employees are different.

[00:35:15] Speaker 02:
They're different because they don't do the manual labor that housekeepers and food and beverage employees engage in.

[00:35:25] Speaker 02:
And if you look at the cases, the party sites and the cases cited within those cases by a margin of about two to one,

[00:35:34] Speaker 02:
front desk employees are excluded.

[00:35:36] Speaker 02:
So this is not a situation where the NLRB has gone back and forth on major rules like we've seen with graduate students, for example, being covered by the NLRA.

[00:35:49] Speaker 02:
This is a case where there has been remarkable consistency for half a century.

[00:35:57] Speaker 01:
And so the original decision by the regional director was wrong.

[00:36:03] Speaker 02:
That may be true.

[00:36:07] Speaker 02:
That's not what's at issue here.

[00:36:13] Speaker 01:
Well, it's at issue because to the extent that the same regional director, Mr. Orr, should have distinguished or confessed to ERA in the second go-round.

[00:36:30] Speaker 02:
So, Your Honor,

[00:36:33] Speaker 02:
The first decision arose out of a petition that the union filed, the union preferred a combined unit of housekeepers and food and beverage employees.

[00:36:45] Speaker 02:
But the regional director found that the commonalities between those two groups of employees were also shared with front desk employees.

[00:36:56] Speaker 02:
And so what makes sense to have those two to the exclusion of the third.

[00:37:01] Speaker 02:
they would have that didn't make sense to the regional director.

[00:37:06] Speaker 02:
And that's consistent with the second decision, because once you separate those groups out, their internal communities of interest do differ enough from each other group that they can be bargained separately.

[00:37:21] Speaker 02:
And that's what's important here is, are we going to have a stable bargaining relationship?

[00:37:27] Speaker 02:
Is the union securing the

[00:37:31] Speaker 02:
collective goods for each group of employees that makes sense.

[00:37:36] Speaker 02:
I mean, housekeepers have different interests from food and beverage employees and who have different interests from front desk employees.

[00:37:45] Speaker 02:
And so that's what's important to keep in mind here.

[00:37:51] Speaker 02:
So not only is there consistency across 50 years of case law, there's consistency between the two decisions of the regional director.

[00:38:00] Speaker 02:
Housekeeping employees, they work alone in rooms.

[00:38:05] Speaker 02:
They have different tools.

[00:38:08] Speaker 02:
They deal with cleaners.

[00:38:11] Speaker 02:
And so these are common areas that a union would bargain over, that it wouldn't bargain over with front desk employees.

[00:38:24] Speaker 02:
And so the internal interests

[00:38:30] Speaker 02:
of each group are distinct and can be bargained separately.

[00:38:36] Speaker 02:
To the employer's point that these will be functionally treated as a single unit, that is not supported by the record.

[00:38:42] Speaker 02:
And in fact, if the employer insisted that they be bargained separately, the union would have to do that.

[00:38:50] Speaker 02:
It has a duty to bargain for each unit.

[00:38:54] Speaker 02:
That's what a bargaining unit is.

[00:38:56] Speaker 02:
So if the employer doesn't want them to be treated as one unit,

[00:39:00] Speaker 02:
It doesn't have to.

[00:39:01] Speaker 02:
It would be an unfair labor practice for the union to insist on that.

[00:39:13] Speaker 02:
I also wanted to clarify the employer brought up an unfair labor practice charge that the union filed.

[00:39:23] Speaker 02:
and saying that the employer could not go through with benefits changes.

[00:39:27] Speaker 02:
If you look at those cases, Banner Care and Mercy Hospital, that is absolutely not true.

[00:39:33] Speaker 02:
If those were scheduled, the employer could go through with them.

[00:39:37] Speaker 02:
And in fact, that charge was dismissed because the region found that those wage increases and benefits changes had not been scheduled.

[00:39:48] Speaker 02:
So we're left with discretionary wage increases

[00:39:50] Speaker 02:
that the employer gave to only front desk employees.

[00:39:55] Speaker 02:
It's treated them differently, shows they have a different community of interest.

[00:40:00] Speaker 02:
I see that my time is up.

[00:40:02] Speaker 02:
If you have more questions, I'd be happy to address them.

[00:40:08] Speaker 04:
All right, I don't see any questions.

[00:40:13] Speaker 04:
Council for petitioner.

[00:40:18] Speaker 04:
Would you like to offer a rebuttal

[00:40:20] Speaker 00:
First, I'd like to unmute.

[00:40:21] Speaker 00:
And now I'd like to offer a rebuttal.

[00:40:23] Speaker 00:
And I want to start with the question that you asked my colleague, Ms.

[00:40:28] Speaker 00:
Isbell.

[00:40:29] Speaker 00:
And that is, when does the board have to address a precedent?

[00:40:34] Speaker 00:
And Ms.

[00:40:35] Speaker 00:
Isbell said, I think what is essentially the right test that has to be reasoned decision-making by the board.

[00:40:43] Speaker 00:
But she also noted that you can't ignore the elephant in the room.

[00:40:47] Speaker 00:
She said you can't ignore PCC structurals on community of interest, for example, because it's just too important.

[00:40:55] Speaker 00:
And I agree with that as well.

[00:40:57] Speaker 00:
And in this case, Ramada Beverly Hills

[00:41:00] Speaker 00:
Is that important due to the close similarities between the facts of the Davidson Hotel in Chicago

[00:41:08] Speaker 00:
and Ramada Beverly Hills.

[00:41:11] Speaker 00:
I don't think that there is a, we're dealing a lot with standards in this case as opposed to rules.

[00:41:16] Speaker 00:
And I don't think that there is a crystal clear rule about when a specific case has to be addressed.

[00:41:22] Speaker 00:
But when it's as close as Ramada Beverly Hills is to this case, for the board's decision to be reasoned, it does have to address it.

[00:41:30] Speaker 00:
The regional director.

[00:41:32] Speaker 04:
So what I'm trying to focus on, and I think you misunderstood my question to counsel for respondent.

[00:41:39] Speaker 04:
My point is that if, in this case, the employer says, we are just like Ramada Beverly Hills, and the board's response is to cite a case in which it discusses Ramada Beverly Hills and a number of other cases in this same area, hotel cases, small hotel cases.

[00:42:10] Speaker 04:
Are you saying that there can be no reason decision making when the board does that because there must be a separate statement specifically saying, and this case is not Ramada Beverly Hills.

[00:42:28] Speaker 00:
In this case, because it's so close, I think that there does need to be a separate statement.

[00:42:35] Speaker 00:
I don't think that's a general rule for every case.

[00:42:37] Speaker 00:
But if you look at the regional director's decisions on JA304, continuing on through JA343, it's never mentioned.

[00:42:47] Speaker 00:
We raised it in exceptions to the board.

[00:42:48] Speaker 00:
It's never mentioned.

[00:42:50] Speaker 04:
You cited cases that discussed.

[00:42:53] Speaker 04:
That's what I'm trying to get you to focus on.

[00:42:55] Speaker 04:
It's like the Supreme Court decides a case on day one.

[00:42:59] Speaker 04:
And then it decides another case on day two.

[00:43:03] Speaker 04:
And then another case comes up on day three.

[00:43:07] Speaker 04:
And so the court cites to its day two decision, which discusses its day one decision.

[00:43:15] Speaker 04:
Why isn't that adequate for reasoned decision making?

[00:43:20] Speaker 04:
And your response is, no, there has to be a separate paragraph on the day one case.

[00:43:26] Speaker 04:
And I'm trying to understand what the rationale

[00:43:29] Speaker 04:
is behind that?

[00:43:31] Speaker 00:
The rationale is due to how similar the facts of the case, the day one case in your hypothetical and the instant catuses.

[00:43:42] Speaker 00:
That's the distinguishing factor.

[00:43:44] Speaker 00:
I see that I'm out of time.

[00:43:46] Speaker 00:
I had a few other brief points if the court is interested in hearing them, but if not, then I would rest.

[00:43:52] Speaker 00:
Sure.

[00:43:54] Speaker 00:
First, I'd like to address the point about

[00:44:00] Speaker 00:
internal communities of interest within food and beverage and housekeeping.

[00:44:06] Speaker 00:
Many of those were not in fact unit wide interests.

[00:44:09] Speaker 00:
Ms.

[00:44:10] Speaker 00:
Isbell mentioned the alcohol training.

[00:44:12] Speaker 00:
That's something that some parts of the food and beverage units got, like the servers and the bartenders.

[00:44:19] Speaker 00:
but not other parts of the unit like the cooks and the stewards.

[00:44:22] Speaker 00:
So those aren't the type of communities of interest that could outweigh the strong interest that front desk employees with the same terms and conditions of employment share with other members in the unit.

[00:44:36] Speaker 00:
And finally, back to Ramada Beverly Hills, there was some question about the degree of interchange

[00:44:45] Speaker 00:
And again, the facts are very similar.

[00:44:48] Speaker 00:
In that case, there was evidence of the Bell staff assisting the housekeepers that happens with regard to the Bell staff at this hotel, which there's undisputed also share responsibility for cleaning the parts of the hotel where they work.

[00:45:02] Speaker 00:
There's mention of assistance between the food and beverage.

[00:45:08] Speaker 00:
And in this case, there was substantial assistance with front desk and food and beverage for banquet events.

[00:45:14] Speaker 00:
So there was one employee who worked, I believe, 150 hours.

[00:45:18] Speaker 00:
A front desk employee worked 150 hours in the food and beverage banquets business.

[00:45:23] Speaker 00:
over a two-year period relevant to the organizing.

[00:45:28] Speaker 00:
You know, these sort of picayune distinctions in the facts, every hotel is a little bit different, just like every fingerprint's a little bit different, but those type of picayune factual distinctions are not a reasoned basis for distinguishing the cases.

[00:45:43] Speaker 00:
Thank you.

[00:45:44] Speaker 04:
Thank you.

[00:45:44] Speaker 04:
We'll take the case under advisement.