A recent decision by the National Labor Relations Board on union elections and bargaining orders could have a significant impact on how hoteliers respond to unionization efforts at their properties.
In the late August decision on the Cemex Construction Materials Pacific case, the NLRB created a new framework that affects employees’ rights “to bargain through representatives of their own choosing and improve the fairness and integrity of board-conducted elections,” according to a news release from the NLRB.
The new framework allows a union to be recognized as the representative when a majority of employees in “an appropriate bargaining unit” have selected the union. In turn, the employer must recognize and then bargain with the union or file for a petition for an election.
“However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and — rather than re-running the election — the board will order the employer to recognize and bargain with the union,” the NLRB news release said.
In an interview with Hotel News Now, Mike Carrouth, labor attorney and partner at Fisher Phillips, broke down the decision by the NLRB and explained what it will mean for hospitality employers as they navigate unionization efforts under the new rule.
One of the major changes coming from this new rule is that it makes it more likely that the policies an employer has in its handbook, regardless of whether they’re enforced, could be interpreted as infringing on the rights of employees, he said.
“If you’ve just got certain rules, if they can be interpreted as infringing upon the rights of employees, that’s going to be presumed unlawful and you’re going to have to prove that it’s necessary,” he said. “There’s no easier way to do it.”
Many employers are worried that one unfair labor practice will mean they’ll receive a bargaining order from the NLRB, Carrouth said. While that’s a possibility in some cases, that’s not true across the board. The unfair labor practice would have to have a wide-ranging effect, such as having a meeting with 250 people at a 600-employee hotel and saying something illegal, such as making a threat or promising a benefit to those employees.
In contrast, a kitchen supervisor making a statement to an employee that would be considered an unfair labor practice wouldn’t be big enough to qualify for a bargaining order because it wouldn’t be widely disseminated enough, he said.
“It’s a very serious decision,” he said. “The landscape has changed. It is going to be much easier for an employer to end up with having to recognize a union than before.”
Listen to the podcast above for a further breakdown of the new NLRB rule.