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Ms. Pohlid

Hospitality Law

Responding to Union Organizing at Your Establishment

By Kathleen Pohlid, Founder and Managing Member, Pohlid, PLLC

Any employer response to union organizing must start well before the union campaign commences and must be in compliance with the National Labor Relations Act. Many employers are under the mistaken impression that the Act only applies to employers who have collective bargaining agreements with a union. This is not so. The Act imposes important obligations upon employers irrespective of the existence of a collective bargaining agreement and provides employees with rights, whether or not they are members of a union.

Employees - irrespective of whether they are in a union - have the right under Section 7 of the Act to engage in "concerted activity" or the right to work together to improve their conditions of employment. This includes the right to communicate amongst themselves, with union representatives even if they are not a member of the union, and with third parties in order to try to improve their pay, benefits, working conditions or to address work related complaints. Employees also have the right - irrespective of whether or not they are a member of a union - to file a complaint of a concerted activity violation with the National Labor Relations Board, which is the federal entity charged with enforcement of the Act. Employers are prohibited from infringing with employees Section 7 rights, including taking actions which may tend to "chill" an employee's right to engage in concerted activity.

Employers should ensure their policies are carefully reviewed to determine if there are provisions which could be construed to violate Section 7 rights. Additionally, they should ensure managers and supervisors are trained in employer obligations under the Act. On November 30, 2011, in Trinity Protection Services, Inc., the Board held that a security company which contracted with government entities violated its employees Section 7 rights when a manager told employees that "divulging any company knowledge to any client was prohibited by company policy and could result in disciplinary action." The Board held that such prohibition "reasonably tends to inhibit employees from bringing work-related complaints to, and seeking redress from, entities other than the employer and restraints their Section 7 rights."

Employees also have the right to freely determine whether or not they want to be a member of a union. Employers are prohibited from threatening or taking reprisals against employees for their interest in joining a union or based upon their membership in a union. Additionally, employers cannot take action which impedes the employees' rights to freely choose whether or not they want to join a union. This includes taking action to deny or prohibit employee access to union information. For example, on March 25, 2011, in New York New York, LLC, the Board held that a food service provider to hotels and restaurants violated the Act when it prohibited off-duty employees from entering the work sites to stand at the front entrance of three hotels where they were employed to distribute union promotion material to employees. The Board held that the employees engaged in a protected right to disseminate the material at their workplace when they were off-duty.

In general, the Board has held that employer rules which prohibit union solicitation on company property outside working time are unreasonable and a violation of the Act. Additionally, employer policies which prohibit solicitation during working hours and in working areas must be uniformly enforced and cannot be limited to prohibiting only union materials. More recently, in Soaring Eagle Casino & Resort, the Board issued its decision on April 16, 2013, affirming an administrative law judge's decision invalidating an employer policy which prohibited casino employees from soliciting in any work area during their working time. The ALJ held invalid an employer prohibition against soliciting in the employee hallway which consisted of multiple time clocks, a break room, and entrances to restrooms.

In addition to knowing the rights of employees and employer obligations under the Act, it is important that employers understand and be aware of the tactics union organizers utilize and the motivations for employees in joining a union. In general, unions may target employers from the outside by a union representative or member providing information or materials to an employee. Unions may also persuade a member to gain employment and to work from the inside to persuade other employees to join. Unions will seek information about the employer, its benefits, working conditions, policies, past history, and contact information about employees. The ultimate goal is to persuade the majority of employees (50% plus one) to sign union authorization cards. Once a union obtains signatures from a majority of the employees, they will ask the employer to recognize the union. If the employer refuses, then the signed cards are submitted for an election.

Employers should be careful to ensure that they do not inadvertently recognize a union by commencing negotiations or bargaining efforts. Employer representatives should be prepared and know how to respond if approached by a union representative purporting to have signed authorization cards from workers. The Board has consistently held that merely reviewing cards will not constitute recognition of a union. However, employers may desire to decline to examine or accept cards without a proper election by which a majority of the employees in an appropriate bargaining unit are able to freely choose whether or not they want to be members of a union.

In Jefferson Smurfit Corp., 331 NLRB 809 (2000), a majority of Board members declined to impose a bargaining relationship "in the absence of a clear, express, and unequivocal statement of agreement to recognize," when a manager examined the cards presented by a union representative without making a statement of intent to recognize or bargain with the union as the employees' representative. Also, in International Union of Operating Engineers, Local 150 v. NLRB, 361 F.3d 395, 400 (7th Cir. 2004), a federal court held that a manager did not recognize the union when the manager accepted the authorization cards presented to him by a union representative. The court declined to impose a bargaining relationship based upon the allegation that when the representative started discussing wages and certain conditions of employment including better winter clothing and shoes, the manager replied "not a problem." The court held that his response did not constitute a "clear and unequivocal evidence" of the intent to bargain.

However, establishments should be aware that failure to make their management aware of union organizing methods and how they should respond poses a risk. A best practice to avoid challenge by a union that the employer recognized and accepted the cards as an expression of the employees' intent is to advise managers not to look at or examine cards presented by union representatives. Employers should be aware that in Jefferson Smurfit, Board Member Fox opined that "once an employer has accepted and examined the cards proffered in support of the union's recognition demand," the employer has "bound itself to recognize the union without the necessity of a Board election, if the union's majority was demonstrated by the offered means."

Therefore, the best practice for employers who contend that a union is not in their best interest, is to decline to examine the cards and to inform the union representative that they doubt in good faith that the cards represent the choice of the majority of their employees in an appropriate bargaining unit and that they insist that an election by secret ballot be conducted under the Act.

Employees may have several reasons for considering membership in a union. Primarily, these reasons stem from the employee belief that the employer refuses to treat them fairly and to address their issues and concerns about their working conditions and that the union will improve their conditions. In fact, the Act was implemented in 1935 after Congress found an "inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association." Congress found that this inequality results in "depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries." Labor unions and pro-labor organizations have also been vigilant in examining employer safety and health history and citing OSHA citations as a basis for the need for employees to embrace union membership.

Therefore, employers can be proactive in addressing these motivations by establishing an open door policy, treating their employees fairly and with respect, responding to their concerns, implementing a robust safety and health program and ensuring that good communication is in place to inform employees about their policies.

Employers should be vigilant for signs of union organizing and should consult with counsel as to how to respond. Union material found in break areas, lunch rooms, and parking lots is an obvious sign that some form of union organizing attempt has been made. Other signs may include an increase in employee complaints and atypical incidents in which employees congregate in discussions with each other and away from the hearing of management.

When confronted by an attempt by unions to organize, the acronym "TIPS" has been helpful for employers to remember the "Don'ts in responding."

Don't Threaten

As noted above, employers are prohibited from taking or threatening adverse action against an employee for their union sympathies or involvement. Employers should also keep in mind that former union membership does not necessarily mean that an employee is pro-union.

Employers must also ensure that their policies do not threaten discipline against employees for engaging in protected activity. For example, in Soaring Eagle Casino & Resort, discussed above, the ALJ held that the Tribe also violated the Act when it suspended and subsequently discharged an employee for soliciting on behalf of the union in hallways while on break.

A violation of unlawful retaliation, requires establishing that the employee engaged in protected activity, the employer knew or suspected that the employee engaged in such activity, the employer harbored animus against the protected activity, and the employer took action because of this animus. In Soaring Eagle Casino & Resort, the ALJ considered it significant that no other employee had ever been disciplined or discharged for violating the Tribe's no-solicitation policy. This case illustrates the importance of employers enforcing policies uniformly.

Don't Interrogate

Employers are prohibited from interrogating employees to determine their sympathies and position with respect to a union. On September 21, 2010, the Board granted a default judgment against Hawk One Security, Inc. for failure to respond to a complaint of unfair labor practices. The complaint alleged that the employer interrogated employees about union activities and sympathies. While it is acceptable for employers to communicate to employees that they do not believe that a union is in the best interest of their business or their employees, employers who threaten employees or who seek to obtain information from employees about union activities risk being held in violation of the Act.

Don't Make Promises of Benefits During a Union Campaign

The Board has held that employer promises of benefits during a union campaign may interfere with the ability of employees to freely choose whether or not they want to become a union member. In G & K Services, Inc., issued on November 7, 2011, the Board rejected a hearing officer's finding that the employer did not violate the act when it promised to grant improved benefits if employees decertified the union. The Board noted that although "an employer may lawfully inform employees of the wages and benefits its nonunion employees receive and respond to requests for information from employees about such benefits," an employer may not make an implied promise of benefits. Such promises may be inferred to interfere with employees' free choice. However, an employer may rebut the inference by showing a legitimate purpose for the timing of the promise.

With respect to G & K Services, the Board held that there was no evidence for a legitimate purpose to support the timing of the promise during a union campaign. The employer's letter stated that "production employees in Memphis, TN voted to get rid of their union (the same union that currently represents you here in Portsmouth)." Then the employer went on in the letter to state that "[w]hile by law, I can't make any promises about what will happen in Portsmouth if the union is decertified, I can share with you that just last week the production employees in Memphis were able to sign up for health insurance that covers their spouses and children for the first time ever."

The Board found that there was no evidence that the letter was in response to an inquiry for information and therefore was unsolicited. The fact that the employer made a disclaimer was unavailing as the Board noted that "it is well settled that such a disclaimer is 'immaterial...if in fact [an employer] expressly or impliedly indicates specific benefits will be granted."

In another decision issued on July 31, 2012, in Latino Express, Inc., the Board held that a Chicago transport service violated the Act when upon hearing of a union organizing campaign, the employer told employees that it would give employees a 50 cent raise. The Board found no evidence of a legitimate business reason to support the promise as there was no evidence that such issue was considered until after the campaign was disclosed and the employer made no attempt to inform employees that the increase independent of the campaign.

Don't Spy

Employers are prohibited under the Act from spying or videotape peaceful union activities and gatherings or pretending to do so. Such action tends to chill and intimidate employees from exercising their rights under the Act. In Hawk One Security, Inc., the NLRB also affirmed the default judgment allegation the employer created the impression among employees that their union activities were under surveillance and issued a cease and desist order.

Establishments should be aware of their obligations under the Act. The time to prepare for a union campaign is before it starts. Act now to ensure your policies are not in violation with the Act and that your managers and supervisors are trained accordingly.

Kathleen Pohlid is the founder and managing member of the law firm of Pohlid, PLLC in the Nashville, Tennessee area. She advises business clients in matters including employment, occupational safety and health, Americans with Disabilities Act (accommodation & discrimination) and regulatory compliance. Her goal is to enable clients to comply with the myriad of state and federal laws to succeed in their business, mindful of the challenges facing businesses and the importance of cost effectiveness. She has advised and represented businesses in a variety of industries including restaurants, hotels, and other entities in the tourism and hospitality industries. She has over 20 years of combined federal government and private sector experience in employment law and litigation. She holds an AV® rating from Martindale-Hubbell (highest for professional competency and ethics), a B.S. degree from the U.S. Naval Academy and a J.D. from Samford University. Ms. Pohlid can be contacted at 615-369-0810 or kpohlid@pohlid.com Please visit http://www.pohlid.com for more information. Extended Bio...

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