On October 23, 2020, the D.C. Circuit granted Davidson Hotel Company’s petition for review of unfair labor practices resulting from its refusal to bargain with two newly-certified bargaining units, and denied the NLRB’s cross-petition for enforcement of an order to engage in collective bargaining with those units.

The Circuit also remanded the underlying unit certification decision to the Board, noting that the NLRB failed to persuasively distinguish relevant precedent presented by the employer and otherwise address the employer’s valid arguments.


The Union initially petitioned the Regional Director to certify a single bargaining unit of hotel employees comprised of housekeeping and food and beverage employees—but excluding front desk employees. The Regional Director first considered whether the employees in the petitioned-for unit share a “community of interest,” and then if so, whether the proposed unit “share[s] a community of interest sufficiently distinct from employees excluded from the proposed unit to warrant a separate appropriate unit[.]”  The traditional “community-of-interest” factors include consideration of, among other things, job functions of the employees in question, department organization and terms and conditions of employment.

Under this standard, the Regional Director declined to certify the petitioned-for-unit, finding that the front desk employees were not sufficiently distinct from the other employees to warrant a separate unit.  However, in his conclusion, the Regional Director briefly suggested that separate units would be appropriate.

Taking the cue from the Regional Director’s suggestion regarding separate units, the Union filed two new petitions the next day to certify a unit of housekeeping employees and a separate unit of food and beverage employees. As before, the Union excluded front desk employees altogether. The Regional Director again applied the “community-of-interest” standard to the newly-proposed units, and certified the two units as appropriate and directed elections. Shortly thereafter, the employees in each unit voted in favor of the Union.

The employer refused to bargain with the newly-certified units, and the Union filed a refusal to bargain unfair labor practice charge against the employer.  In response to the charge, the employer objected to the certification, arguing that the Regional Director departed from several prior Board decisions rejecting separate bargaining units in the hotel context, as well as the precedent established by the RD in the first unit decision in this case—namely, that the RD’s decision counseled against excluding the front desk employees from the first decision, but not in the second.  The Board rejected the petition without explaining its reasoning or attempting to distinguish the precedent relied on by the employer in a 2-1 vote.

On appeal to the D.C. Circuit, the Court admonished the Board for its lack of analysis, noting the employer presented the Board with precedent that was directly analogous, holding that separate bargaining units in the hotel context were inappropriate.  The Board failed to engage in any application to the facts at hand and distinguish those cases from the present.


This decision reinforces D.C. Circuit precedent—which is important for any practicing labor law attorney, employer, union or employee, as any NLRB decision may be appealed to the D.C. Circuit—that the Board must explain its reasoning when certifying bargaining units.  Fatal to the Board’s decision here was that it failed to reconcile the Regional Director’s initial decision (which found that excluding front desk employees was inappropriate) with the subsequent decision (which concluded that front desk employees need not be included in the unit), and did not even attempt to distinguish the arguably on-point Board precedent from the hotel industry.

When remanding the case, the D.C. Circuit noted that “We should not be understood as requiring the Board to distinguish every case cited to it by a party…To say otherwise would be to hold the Board to a higher standard than we hold ourselves…. We simply reiterate that when faced with contrary precedent directly on point, the Board must distinguish it.”

Lurking in the background of this case is the Board standard for evaluating bargaining units.  Several years ago the Board changed the traditional of community of interest standard, which also relied heavily on precedent in the particular industry, in favor of the so-called “micro unit standard.”  Undoubtedly, the two separate units would be found to be appropriate under this standard.  In recent years, as political winds changed, the Board abandoned the micro unit standard in favor of the more traditional analysis.  This traditional analysis made the employer’s citation to industry precedent not only important, but fundamental to the Court’s determination.

Political winds recently shifted and so may the Board’s standard for evaluating bargaining units.

We will keep you posted!


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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.