01/14/2025: Yotel Boston Unlawfully Withdraws Recognition
A technical refusal-to-bargain case as well.
Public Service Company of New Hampshire d/b/a Eversource Energy, 374 NLRB No. 17, 01-CA-333259 (Published Board Decision)
Two IBEW Local 1837 units at Eversource Energy's Manchester facility won representation elections in late 2023. After certification, Eversource refused to bargain with either unit, claiming the units improperly included supervisory positions.
The NLRB granted summary judgment based on a fundamental principle of labor law: representation issues that were or could have been litigated in the underlying representation case cannot be relitigated in a subsequent refusal-to-bargain case. This rule, established in Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941), has two narrow exceptions: newly discovered evidence or special circumstances that would require reexamining the representation decision.
Here, Eversource admitted refusing to bargain but argued the units included statutory supervisors - an issue it had already raised and lost in the representation proceedings. Eversource did not claim to have new evidence about supervisory status, nor did it identify any special circumstances warranting reconsideration.
The Board's approach to these "technical" 8(a)(5) cases serves several important purposes:
It prevents employers from indefinitely delaying their bargaining obligation through repeated litigation of the same issues
It promotes finality in representation determinations
It provides an orderly process for employers to obtain judicial review of representation decisions
This last point is crucial because representation decisions themselves are not directly appealable to federal courts. By refusing to bargain and triggering an unfair labor practice case, an employer can eventually appeal the underlying representation issues as part of appealing the Board's unfair labor practice decision.
Because these cases typically involve admitted refusals to bargain and attempts to relitigate representation issues, the Board routinely grants summary judgment unless the employer can show new evidence or special circumstances. This streamlined approach prevents unnecessary litigation while still preserving employers' ability to seek judicial review of representation determinations through the "technical" refusal to bargain process.
The Board thus ordered Eversource to bargain with both units and specified that the certification year would begin only when good faith bargaining starts, following Mar-Jac Poultry Co., 136 NLRB 785 (1962), which ensures unions get their full year of bargaining rights despite employers' technical refusals.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Employers cannot relitigate representation issues decided during certification proceedings in subsequent unfair labor practice cases.
Mar-Jac Poultry Co., 136 NLRB 785 (1962): Bargaining obligations begin anew when the employer complies with an order to bargain, resetting the certification year.
Yotel Boston, JD-03-25, 01-CA-302444 (ALJ Decision)
UNITE HERE Local 26 represented housekeeping employees at Yotel Boston, a 326-room hotel in Boston's Seaport District. The Union secured recognition in November 2019 through a card check agreement.
Initial bargaining began in January 2020. The parties held two sessions, reaching tentative agreements on several non-economic items. COVID-19 interrupted negotiations when the hotel closed in April 2020. When it reopened in June 2020, only 11 of approximately 27-30 room attendants were recalled due to low occupancy.
In January 2021, Yotel withdrew recognition based on a petition signed by 7 employees. The Union filed unfair labor practice charges, and in December 2021, the parties reached a settlement where Yotel agreed to re-recognize the Union and resume bargaining.
Bargaining restarted in January 2022. The Union presented economic proposals including wages, benefits, and work rules. The parties met again in February 2022 to discuss Yotel's counterproposals but reached no agreements. A key dispute involved room cleaning quotas - Yotel's system counted stay-over rooms as 0.75 credits while the Union wanted all rooms counted equally.
In June 2022, an employee presented management with another petition. The first page, containing clear anti-union language, had 5 signatures. A second page with no explanatory text had 14 signatures. Based on this petition, Yotel again withdrew recognition on July 6, 2022.
The Administrative Law Judge found two violations of labor law:
The withdrawal of recognition was invalid because only the 5 signatures on the first page could be counted as evidence of rejecting the Union - not enough in a 27-person unit.
Yotel failed to bargain for a reasonable period after the settlement agreement, with only two sessions over seven months.
The ALJ ordered Yotel to recognize and bargain with the Union but denied additional remedies requested by the General Counsel such as a mandatory 12-month bargaining period.
Significant Cases Cited
Wyman Gordon Pennsylvania, LLC, 368 NLRB No. 150 (2019): Petitions must explicitly state employees' intent to disassociate from a union for signatures to be valid evidence of majority loss.
Poole Foundry & Machine Co., 95 NLRB 34 (1951): Employers must bargain in good faith for a reasonable period after recognizing a union or entering a settlement agreement.
Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001): Employers can withdraw recognition only if there is clear evidence of actual loss of majority support, or they may file an RM petition for an election.
Lee Lumber & Building Material Corp., 334 NLRB 399 (2001): Factors to evaluate whether a reasonable bargaining period has elapsed include the number of sessions, time elapsed, and progress made.