Hospitality Labor and Employment Law Blog : Hotel, Restaurant, Resort & Spa Lawyers & Attorneys: Epstein Becker & Green Law Firm: Hospitality Law

by: Adam C. Abrahms, James S. Frank, Kara M. Maciel, and Steven M. Swirsky

President Obama has taken action designed to bolster the National Labor Relations Board’s continuing move to bolster unions and take the National Labor Relations Act further into non-union workplaces. On April 9, 2013, President Obama announced his plan to submit three more nominees to serve the National Labor Relations Board (“NLRB”). If these and the two other pending nominations are confirmed this would bring the NLRB to its full complement of five Members. 

These new nominations – who must be confirmed by the U.S. Senate – were announced against the backdrop of the NLRB v. Noel Canning decision in which the U.S. Court of Appeals for the D.C. Circuit ruled that the NLRB now lacks constitutional authority to act because the recess appointments previously made by President Obama in January 2012 were not valid. The NLRB plans to appeal the D.C. Circuit’s decision to the U.S. Supreme Court by April 25, 2013. 

The three new nominations include the current NLRB Chairman, Mark Gaston Pearce, and two Republicans, Harry I. Johnson, III, and Philip A. Miscimarra, both lawyers in private practice. While Mr. Johnson and Mr. Miscimarra both have represented management over their careers, Chairman Pearce came to the NLRB from a practice representing unions.

Mr. Pearce has served as NLRB Chairman since August 2011, and has been a Board Member since March 2010.  Previously, Mr. Pearce, who started his career at the Board’s Buffalo, New York Regional Office in 1979, was a founding partner of Creighton, Pearce, Johnsen & Giroux from 2002 to 2010.  Before founding the Creighton, Pearce firm, Mr. Pearce worked as an associate and junior partner at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP from 1994 to 2002.

Harry I. Johnson, III is a partner with Arent Fox LLP. Previously, Mr. Johnson worked at Jones Day from 1994 to 2010. Mr. Johnson received a B.A. from Johns Hopkins University, an M.A.L.D. from Tufts University’s Fletcher School of Law and Diplomacy, and a J.D. from Harvard Law School.

Philip A. Miscimarra is a partner with Morgan Lewis & Bockius LLP, a position he has held since 2005. Since 1997, Mr. Miscimarra has also been a senior fellow at the University of Pennsylvania's Wharton Business School.  Mr. Miscimarra received a B.A. from Duquesne University, an M.B.A. from the University of Pennsylvania’s Wharton School of Business, and a J.D. from the University of Pennsylvania Law School.

President Obama previously submitted the nominations of Richard F. Griffin, Jr. and Sharon Block, who are currently serving as Board Members but whose recess appointments were struck down as invalid by the D.C. Circuit in Noel Canning. Member Block came to the NLRB from the US Department of Labor. Both of those nominations are before the Senate.

WHAT HOSPITALITY EMPLOYERS SHOULD DO NOW

Considering that all five nominations must now be confirmed by the Senate, where the Republican minority has frequently blocked the President’s nominations, it is unclear how and when the Senate will respond, and whether the NLRB will enjoy a full complement of Members in order to conduct lawful business any time soon. Merely announcing the nominations will not pave the way immediately for a full, validly appointed NLRB. Indeed, it may not be until the next Congress, following the 2014 mid-term elections that the Senate even considers a package deal with the White House.  

If a compromise could be achieved and all five Members were sworn-in this year or next, the Board would continue with a liberal, union-friendly majority with Chairman Pearce and Members Griffin and Block. They could be expected to continue a pro-union agenda, which would certainly bring continued aggressive enforcement and further broadening of the Board’s view of protected, concerted activity and the Act’s application in non-union workplaces. Moreover, there will be many questions about whether a new NLRB will be able to cure prior decisions that were put into doubt by Noel Canning.   

For now, our advice and recommendations to hospitality employers remains the same as following the ground-breaking decision of Noel Canning. Employers should closely monitor how courts in their jurisdictions decide similar cases challenging the recess appointments, and watch how the Supreme Court will address it next term, should it take the NLRB’s petition for certiorari, while watching to see what happens in the Senate.   

By: Allen B. Roberts

I wrote the February 2013 version of Take 5 Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green. In it, I discuss an alternative view of five topics that are likely to impact hospitality employers in 2013 and beyond. One topic involved the potential for labor organizing by pop-up unions in break-out units.  

Despite some perceptions of cohesiveness and political acumen, influence and wherewithal following the 2012 election cycle, labor unions represent only about 7.3 percent of the private sector workforce in the United States, and only 6.6 percent of workers are actually union members. When concentrations in certain industries and geographic areas are factored, that leaves entire swaths entirely union-free, or substantially so.

Foreseeably for the next four years, unions will continue to benefit from a National Labor Relations Board ("NLRB") that has innovated changes in substantive law and introduced procedures during the past four years that facilitate organizing and restrict the time for responsive employer communications. That advantage has not yet translated into material membership gains by "Big Labor"—although it may still.

However, together with other breakthroughs by way of social media and electronic and physical access to employer premises and communications systems, expanded interpretations of protected concerted activity, and such movements as Occupy Wall Street and grass roots organizations, conventional unions may be eclipsed, if not displaced, by one-off, special purpose organizations formed solely to serve discrete affinity groupings of employees in new bargaining units. If this occurs, it will be enabled by two bedrock principles of the National Labor Relations Act ("NLRA"), aided by a recent interpretation in case law.

First, notwithstanding the attention given by supporters and critics alike to large, well-financed conventional unions with institutionalized structures and processes, the NLRA defines a "labor organization," capable of winning certification as the exclusive representative of employees, to mean any body that exists, in whole or in part, for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. This means that an outside force, planning and funding offsite meetings and campaigns, is not necessary; something as simple as a homegrown pairing or grouping of workers having common interests or worries could qualify as a labor organization.

Second, with respect to the NLRB's formulation of a unit appropriate for collective bargaining purposes, it is not necessary that the unit be the most appropriate or that it conform to management's organizational structure. Historically, the NLRB has been mindful of its authority to make determinations of the unit appropriate for purposes of collective bargaining, consistent with legislative policy assuring that employees have the "fullest freedom" in exercising statutory rights to organize. If it survives Circuit Court of Appeals challenge on review, an NLRB standard adopted in 2011 could lead to a proliferation of small, fractionated bargaining units; it would place the burden on an employer contesting the appropriateness of a labor organization's preferred bargaining unit to show that employees excluded from the unit sought by the petitioning labor organization share an "overwhelming community of interest" with another readily identifiable group. If a readily identifiable group exists based on such factors as job classification, department, function, work location, and skills, and the NLRB finds that the employees in the group share a community of interest, the petitioned-for unit will be an appropriate unit, despite an employer's contention that employees in the unit could be placed in a larger unit that also would be appropriate—or even more appropriate.

Much as the NLRB's approach has been perceived to benefit large, established unions, it may not be surprising if employee groups, newly aware of the NLRB's outreach and enlargement of rights to engage in protected concerted activity through social media and other means, realize also that they are capable of becoming homegrown, single-purpose labor organizations with authorization from the NLRB to define a bargaining unit by its lowest common denominator—or to invade and fractionate existing bargaining units currently represented by Big Labor.

For more Take 5 Views You Can Use, read the full version here.

By Steven M. Swirsky

On Friday, November 16, I participated in a free 75-minute webinar discussion with Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board.  The webinar was moderated by Terence H. McGuire of the Practical Law Company.  We discussed:

• Factors that the NLRB considers when deciding whether to prosecute unfair labor practices based on these employment practices.
• Legal considerations surrounding these employment practices besides compliance with the National Labor Relations Act.
• The NLRB’s stance on what is and is not a lawful at will disclaimer.
• Social Media and communications policies.
• The NLRB’s position on employer requirements for confidentiality in connection with workplace investigations.
• Waivers of the right to pursue claims in class actions.
• What's next on the NLRB's prosecutorial agenda and how employers can prepare.

Click here to view this complimentary webinar, “Employment Practices Facing NLRB Scrutiny.” 

By:  Bill Milani, Susan Gross Sholinsky, Dean Silverberg,  Steve Swirsky, and Jennifer Goldman

EBG has prepared an Act Now Advisory on the NLRB’s recent stance on employment-at-will disclaimers, which are generally incorporated in employee handbooks. Two recent claims filed before the National Labor Relations Board in Arizona alleged that language used in employers handbooks regarding at-will employment (and how that arrangement could not be changed) were overly broad and could therefore chill employees’ rights under the National Labor Relations Act.

Hospitality employers should review their employee handbooks in light of the NLRB's recent enforcement position. 

By:  Evan Rosen

Yesterday, the National Labor Relations Board (the “Board”) voted, 2-1, to approve its Resolution to drastically amend the rules governing union elections.  While the Board’s stated reason for the amendment is to reduce unnecessary litigation, it is apparent that this purpose is a sham, and that the real reason is to make it significantly easier for unions to organize employees, especially those in the highly targeted hospitality industry. 

The Board did not vote on the entire proposal detailed in their June 22, 2011Notice of Proposed Rulemaking, but rather on a narrower version focused on representational hearings, appeals, and evidentiary issues. Importantly, however, the Resolution eliminates language restricting a Regional Director from scheduling an election until at least 25 days after the direction of an election. Finally, the other proposed amendments to shorten election times, which are identified in the June 22, 2011 Notice of Proposed Rulemaking, are not off the table; rather, the Board will continue to deliberate on them. The Board will now draft a final rule based on the Resolution and will vote again for the final rule to be issued.  

The Resolution will result in a shorter campaign period for elections and will make it significantly more difficult for employers to appeal unlawful election results. Under current procedures, 95% of elections are held within 55 days of a union filing of a petition for representation. The average length of time is about 38-42 days.   Under the Resolution, this period of time is likely to be reduced considerably because there will be less pre-election litigation, and the Board will no longer be required to wait 25 days to direct an election. Consequently, the Resolution shall restrict an employer’s ability to assess the appropriate unit and effectively litigate the issues. It will also impair an employer’s ability to seek Board review of a Regional Director’s election rulings by making such review “discretionary.” 

The reduction in the election time frame is particularly worrisome because union organizing often occurs “under the radar.” Frequently, union organizers have campaigned for several months leading up to the union’s filing of a petition, and have done so without the employer’s knowledge. Indeed, most unions will not even call for an election until at least 65-70 percent of the targeted workforce has signed “authorization cards” turning over to the union the employee’s right to negotiate his or her wages, benefits, and terms of conditions. 

The new rules are detrimental to employees who will not have the benefit of understanding all of the facts before they are required to vote. The current campaign period of 38-42 days generally provides sufficient time for employers to combat the union’s propaganda and to share their own views of unions with their employees. In contrast, under the Resolution, unprepared employers may lack sufficient time to share the facts with employees and rebut the union’s propaganda and promises. The lack of a clear appeals process may also incentivize unions to unlawfully coerce employees to vote for the union. This will almost certainly result in more election victories for unions.

All hospitality employers should prepare ahead of time to ensure that their workforces do not become susceptible to union organizing. Among other things, we suggest the following action items:

·         Train managers in effective labor relations so they know what to do if a union organizing drive occurs, and what they can and cannot say without committing an unfair labor practice

·         Review and update no solicitation policies and ensure they are uniformly applied

·         Conduct an internal review to determine if there are any issues that may be the impetus for a union organizing drive

·         Conduct a wage/benefit comparison to ensure your practices are competitive with competitors who have unionized workforces

·         Determine if there are additional perks and other benefits that can be given to employees to enhance loyalty for management

·         Prepare campaign materials in advance to thwart a union campaign

By:  Kara M. Maciel and Evan Rosen 

In recent weeks the Obama Administration’s National Labor Relations Board (the “Board”) has been very active in soliciting public comments and amicus briefs on a wide range of decisions and proposed regulations that could drastically change the labor relations landscape. One of these topics are the rules surrounding the scope of union solicitation on a non-unionized employer’s private property. 

We have received many inquiries from our clients about the Board's review of whether to change the solicitation rules. In light of the renewed focus on union solicitation, we want to remind you what the current rules state and what action steps the hospitality industry can take to prevent and respond to a union solicitation.

Under federal labor law, solicitation rules differ for employees and non-employees. As a general rule, employers may prohibit non-employees from engaging in solicitations or handbilling on private property. There are, however, two exceptions to this general rule. First, non-employees may have a right to access an employer’s private property if there are no other available channels of communication for which it can communicate with employees. Thus, if your employees live on company premises, this could be an issue to look into. The second exception is where the employer discriminates against the union by allowing other groups to solicit on its premises. Accordingly, if your company allows other groups – even charitable or civic organizations – to solicit on company property, you are opening the door to the union as well. 

The stated purpose of the National Labor Relations Act is to protect employee rights, and in particular, their right to engaged in protected concerted activity. Thus, employees are given greater freedom to solicit on company property than non-employees. The current rule is that an employer may restrict an employee from soliciting other employees except during working time and working locations. Thus, an employee may only solicit other non-working employees if he or she is off the clock and in a break room or non-working space. 

There are some important steps that hospitality employers should take to prevent and respond to a union solicitation effort:

1)         Draft and implement a legally enforceable no-solicitation policy.

• Insert the policy in your employee handbook.
• Place no-solicitation signs next to every entranceway.
• Consult labor counsel to ensure the policy is not overly broad, and thus illegal.

2)         Enforce the no-solicitation policy consistently and uniformly.

• Your company may not permit charitable, civic, or religious organizations to solicit on its premises if it also wishes to restrict union solicitation.
• Enforce the policy evenhandedly to all groups wishing to solicit.

3)         Provide labor relations training to all managers.

• Managers must know how to recognize union organizing.
• Managers must know what to do if they see signs of union organizing.

4)         If non-employee union solicitation occurs, politely ask the solicitor to leave the premises. 

• If the solicitor refuses to leave, call security.
• Consider whether to communicate with your employees to counteract the union’s message.
• Contact labor counsel immediately to develop a comprehensive strategy to thwart the union organizing effort.

Knowing the rules of the game and these proactive steps that you can take to protect your and your employee's privacy rights can be beneficial to effectively responding to a union organizing and solicitation attempt.