United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2020 Decided October 23, 2020

No. 19-1235

DAVIDSON HOTEL COMPANY, LLC, (CHICAGO MARRIOTT AT

MEDICAL DISTRICT/UIC),

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

UNITE HERE LOCAL 1,

INTERVENOR

Consolidated with 19-1259

On Petition for Review and Cross-Application for

Enforcement of an Order of

the National Labor Relations Board

Mark W. DeLaquil argued the cause for petitioner. With

him on the briefs were Peter G. Fischer and Renee M. Knudsen.

Kellie Isbell, Senior Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the brief

were Usha Dheenan, Supervisory Attorney, Peter B. Robb,

General Counsel, Ruth E. Burdick, Acting Deputy Associate
2

General Counsel, and David Habenstreit, Assistant General

Counsel.

Richard Treadwell argued the cause for intervenor. With

him on the brief was Paul L. More. Kristin L. Martin entered an

appearance.

Before: ROGERS and RAO, Circuit Judges, and RANDOLPH,

Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

RANDOLPH, Senior Circuit Judge: Davidson Hotel

Company petitions for review of the National Labor Relations

Board’s decision that Davidson committed unfair labor practices

by refusing to bargain with a union in two Board-certified units. 

Davidson challenges the Board’s certification of the two units. 

The Board cross-petitions for enforcement of its order. Because

the Board did not distinguish its precedents, we grant the

petition for review, deny the cross-application for enforcement,

and remand to the Board.

The National Labor Relations Act, 29 U.S.C. § 157, protects

the right of employees “to bargain collectively through

representatives of their own choosing[.]” The Act empowers the

Board to “decide in each case . . . the unit appropriate for the

purposes of collective bargaining[.]” 29 U.S.C. § 159(b). To

make this determination, the Board applies what it calls the

community-of-interest standard. PCC Structurals, Inc., 365

N.L.R.B No. 160, *6-7 (2017). First, the Board determines

whether the employees in the petitioned-for unit share a

community of interest. Id.; Blue Man Vegas, LLC v. NLRB, 529

F.3d 417, 421 (D.C. Cir. 2008) (citing NLRB v. Action Auto.,

Inc., 469 U.S. 490, 494 (1985)). Second, the Board determines
3

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[.]” PCC Structurals,

Inc., 365 N.L.R.B. at *9. Many factors are considered, ranging

from organizational structure to the terms and conditions of

employment. Id. at *6 (listing the traditional factors); see also

Sundor Brands, Inc. v. NLRB, 168 F.3d 515, 518 (D.C. Cir.

1999); United Operations, Inc., 338 N.L.R.B. 123, 123 (2002). 

The Board is not required to pick the most appropriate unit –

only an appropriate one. Dean Transp., Inc. v. NLRB, 551 F.3d

1055, 1063 (D.C. Cir. 2009) (quoting Serramonte Oldsmobile,

Inc. v. NLRB, 86 F.3d 227, 236 (D.C. Cir. 1996)). But the

Board’s discretion is not unlimited. NLRB v. Tito Contractors,

Inc., 847 F.3d 724, 729 (D.C. Cir. 2017).

Davidson operates the Chicago Marriott at Medical

District/UIC, a relatively small full-service hotel providing

dining, banquet, and other services. Three groups of employees

are at issue here: those at the front desk, those in housekeeping,

and those handling food and beverage. The union, UNITE

HERE Local 1, initially petitioned the Board’s Chicago

Regional Office to certify a single bargaining unit composed of

housekeeping and food and beverage employees. The union’s

proposed unit did not include the front desk employees. The

Regional Director declined to certify the unit. Walking through

the traditional community-of-interest factors, the Regional

Director found “that the interests of front desk employees . . .

are not sufficiently distinct from the interests of employees in

the petitioned-for unit to warrant establishment of a separate

unit.” J.A. 231. In his conclusion, the Regional Director briefly

suggested that separate units would be appropriate. J.A. 232,

n.11.

Taking the cue, the union filed two new petitions the next

day to certify a unit of housekeeping employees and a separate
4

unit of food and beverage employees. As before, the union

excluded the front desk employees. The Regional Director

again applied the community-of-interest standard to the newly

proposed units. The Regional Director then certified the two

units as appropriate and directed elections. Shortly thereafter,

the employees in each unit voted in favor of the union.

Davidson complained to the Board that the Regional

Director had departed from Board precedents and the precedent

set in the first unit decision in this case. Request for Review, 3-

4, 13-14, 25-28, NLRB Case No. 13-RC-217487 (Sept. 11,

2018). The Board rejected Davidson’s contentions by a 2-1 vote

explaining that its petition “raise[d] no substantial issues

warranting review.” J.A. 542-43. To obtain judicial review of

the certifications, Davidson refused to bargain.1 

The well-worn standard is that the court will “review the

Board’s factual conclusions for substantial evidence, defer to

[the Board’s] rules if they are rational and consistent with the

Act, and uphold the Board’s application of law to facts unless

arbitrary or otherwise erroneous.” Dean Transp., Inc., 551 F.3d

at 1060 (quoting Harter Tomato Prods. Co. v. NLRB, 133 F.3d

934, 937 (D.C. Cir. 1998)) (internal quotation marks omitted). 

“A decision of the Board that departs from established precedent

without a reasoned explanation is arbitrary.” NLRB v. Sw. Reg’l

Council of Carpenters, 826 F.3d 460, 464 (D.C. Cir. 2016)

1

 “[R]epresentation proceedings before the Board are not subject

to direct judicial review because they do not result in a final agency

order, and an employer seeking review of the record in a

representation proceeding must refuse to bargain with the union, and

suffer an unfair labor practice charge[.]” Alois Box Co. v. NLRB, 216

F.3d 69, 76 (D.C. Cir. 2000) (quoting Wackenhut Corp. v. NLRB, 178

F.3d 543, 548 (D.C. Cir. 1999)) (internal quotation marks and original

brackets omitted).
5

(quoting Comau, Inc. v. NLRB, 671 F.3d 1232, 1236 (D.C. Cir.

2012)) (internal quotation marks omitted).

 

The Board must explain its reasoning when certifying

bargaining units. LeMoyne-Owen College v. NLRB, 357 F.3d

55, 60-61 (D.C. Cir. 2004). In LeMoyne-Owen College, the

Board certified a bargaining unit of full-time faculty over the

College’s objections that the Regional Director had ignored

precedent addressing the same facts. Id. at 58-60. In granting

the College’s petition for review and remanding to the Board,

this court pointed out that “the Regional Director . . . did not

discuss or even mention a single one of the precedents on which

the College relied.” Id. at 60. Neither did the Board in either of

its terse orders denying review. Id. When “a party makes a

significant showing that analogous cases have been decided

differently, the agency must do more than simply ignore that

argument.” Id. at 61. Rather, the Board must explain its

departure. Id. “The need for an explanation is particularly acute

when an agency is applying a multi-factor test through case-bycase adjudication.” Id.

Here we face a similar situation. Neither the Regional

Director nor the Board distinguished contrary Board precedents

or the Regional Director’s first decision in this case. See

Ramada Beverly Hills, 278 N.L.R.B. 691, 691-92 (1986)

(explaining differences with a prior decision regarding the same

hotel). The previous unit decision by the same Regional

Director was sufficiently analogous that it should have been

distinguished or otherwise addressed – at least when the

Regional Director and Board were presented with the argument

that the first decision required rejection of the union’s later

petitions. See Request for Review, 13-14, NLRB Case No. 13-

RC-217487 (Sept. 11, 2018); id. Ex. 7, 13-14, 85-86 (Hr’g Tr.,

Apr. 9, 2018). Yet the Regional Director never mentioned the

prior decision beyond incorporating the record and stating that
6

“the petitioned-for unit in the instant case is different[.]” J.A.

305 n.5, 325 n.5. The Regional Director did not explain why the

same factors that counseled against excluding the front desk in

the first decision did not govern the second petitions as well.

See J.A. 231 (listing the shared conditions among the employee

groups).

 

We do not say that the Board cannot reach a different

conclusion in the second unit determination. But the Board

must explain why the balance of those factors differed from the

factors considered in the Regional Director’s first decision.2

Otherwise, the court “is left to attempt to discern for itself which

factual differences might have been determinative, without

guidance from the agency, and to assess whether making such

distinctions controlling is rational or arbitrary, again without any

agency explanation of why particular factors make a difference.” 

LeMoyne-Owen College, 357 F.3d at 61.

 

In addition, the Board failed to cite – let alone distinguish

– a single contrary precedent even though Davidson cited

several Board precedents that rejected separate units of hotel

employees under similar circumstances.3 Despite that showing,

2

 The Board and the union provided some explanation in their

briefs in this court, Red Br., 39-41, Green Br., 35-37, and at oral

argument, 36:33-37:22 (counsel for the union). But the explanation

must come from the Board itself. See Burlington Truck Lines, Inc v.

United States, 371 U.S. 156, 168-69 (1962); Erie Brush & Mfg. Corp.

v. NLRB, 700 F.3d 17, 23 (D.C. Cir. 2012). 

3

 Davidson relied most heavily on Ramada Beverly Hills, 278

N.L.R.B. 691 (1986), in which the Board rejected separate units for

hotel employees relying on the same community-of-interest factors. 

See Request for Review, 25-28, NLRB Case No. 13-RC-217487 (Sept.

11, 2018); id. Ex. 6, 236-42 (Hr’g Tr., Mar. 14, 2018); id. Ex. 7, 89

(Hr’g Tr., Apr. 9, 2018). Davidson also relied on Atlanta Hilton &
7

there is no paragraph, sentence, citation, or footnote that

distinguishes these decisions. Under LeMoyne-Owen College,

this failure is fatal. See id.

We should not be understood as requiring the Board to

distinguish every case cited to it by a party. See id. at 60; see

also Sw. Reg’l Council of Carpenters, 826 F.3d at 464 (quoting

Lone Mountain Processing, Inc. v. Sec’y of Labor, 709 F.3d

1161, 1164 (D.C. Cir. 2013)). To say otherwise would be to

hold the Board to a higher standard than we hold ourselves. Nor

is there a specific way that the Board must explain its prior

decisions. See, e.g., Hilton Hotel Corp., 287 N.L.R.B. 359, 359-

60 n.3 (1987) (distinguishing cases in text and footnotes); W.

Lodging Corp., 287 N.L.R.B. 1291, 1292 n.1 (1988)

(distinguishing cases in a footnote). We simply reiterate that

when faced with contrary precedent directly on point, the Board

must distinguish it.4

 

For the foregoing reasons, we grant the petition for review,

deny the Board’s cross-application for enforcement, and remand

to the Board for further proceedings consistent with this opinion. 

So ordered.

Towers, 273 N.L.R.B. 87 (1984). See id. Ex. 6, 236 (Hr’g Tr., Mar.

14, 2018).

4

 Because we grant the petition for review on this ground, we do

not address Davidson’s other challenges to the Board’s decision.