By: Paul Rosenberg
On December 9, 2011, the U.S. Court of Appeals for the District of Columbia (“the Court”) refused to enforce a National Labor Relations Board (“NLRB”) decision that a hotel unlawfully suspended hospitality workers who engaged in a work stoppage. Fortuna Enters. LP v. NLRB, D.C. Cir., No. 10-1272 (December 9, 2011). In this case, UNITE HERE – the largest hospitality union in the country – was seeking to organize employees of the hotel. While the union organizing drive was ongoing, the hotel suspended an employee pending an investigation into whether he stole property from a hotel guest. The next morning, 70-100 employees gathered in the hotel’s cafeteria demanding to speak with management regarding their co-worker’s suspension. This type of assembly is a common tactic which UNITE HERE relies upon to cause a wedge between management and the employees. In this case, the strategy proved somewhat effective.
Management requested that all employees return to work as scheduled. Many of the employees ignored this request, and those who refused to begin their scheduled shifts were suspended. In total, 77 employees were suspended for five days for insubordination and failing to follow instructions. The union filed an unfair labor practice charge against the hotel alleging that the workers’ suspension was unlawfully related to its organizing drive at the hotel.
UnderSection 7 of the National Labor Relations Act, workers have an unfettered right to form, join, or assist unions and to engage in “concerted activity” for the purpose of collective bargaining or other mutual aid or protection. Indeed, as we discussed in an earlier blog post, the NLRB recently issued a rule requiring that, in January 2012, all employers – both unionized and non-union – post a workplace poster explaining Section 7 rights. While workers are entitled to exert pressure on employers through “on the job” work stoppages in support of their Section 7 rights, such actions must be balanced against the property rights of employers. The NLRB and courts consider the following factors in applying this balancing test:
1. the reason the employees have stopped working;
2. whether the work stoppage was peaceful;
3. whether the work stoppage interfered with production, or deprived the employer access to its property;
4. whether employees had adequate opportunity to present grievances to management;
5. whether employees were given any warning that they must leave the premises or face discharge;
6. the duration of the work stoppage;
7. whether employees were represented or had an established grievance procedure;
8. whether employees remained on the premises beyond their shift;
9. whether the employees attempted to seize the employer’s property; and
10. the reason for which the employees were ultimately discharged.
In upholding the unfair labor practice charge, the NLRB noted the employer lacked a formal grievance procedure for employees to raise their concerns. However, the Court rejected this conclusion and reversed the decision of the NLRB. Specifically, the Court explained the hotel had an “open door” policy for employee complaints. The hotel’s policy allowed a “team member” to raise “problems” with a supervisor, human resources director, and general manager. Hotel managers had relied on this policy previously to address group grievances regarding uniforms, equipment and working conditions. Consequently, the Court found “the Board’s grievance procedure finding was therefore not supported by adequate evidence.”
The Fortuna case underscores the importance of including a broadly worded complaint resolution process included in your employee handbook. Having the procedure in place, however, is not the end of the story. Every hospitality employer should make certain that its employees know to whom to voice workplace complaints. Failing to update your handbook and educate your employees could lead to operational turmoil. Moreover, UNITE HERE continues to aggressively target non-union properties. Details regarding UNITE HERE’s continued efforts and tactics designed solely to organize hotel workers can be found at www.hotelworkers.rising.org. If employees are unaware that a forum is at their disposal to raise problems, UNITE HERE could lawfully permit employees to interfere with the guest experience by engaging in an “on site” work stoppage in support of their Section 7 rights.