In recent months, a non-elected, bureaucratic body has lead an aggressive campaign to fundamentally change the dynamic between business and labor—a relationship that has been highly effective and crucial to the long-term foundation of our economy. The National Labor Relations Board (NLRB) has been handing down a series of rulings that will have a profound impact on the lodging industry and many, many others.
One of the most recent rules promulgated by the NLRB deals with union representational campaigns, or “ambush” elections. Scheduled to go into effect April 14, 2015, unless Congress or a court intervenes, this new rule deprives lodging employees of the time and information necessary to make an informed choice about union representation and impinges on the free speech and due process rights of AH&LA members. It does this by shortening the time between a union petition for election and the day the board opens the polls from the current median of 38 days to as few as 14 days. The new rule also deprives employers of due process rights that have been integral to the existing election process, and it requires employers to provide the union with employees’ personal phone numbers and email addresses.
The last requirement seriously infringes on the privacy rights of employees. Employees would neither have the right to prevent the release of their contact information nor have the ability to determine which information is provided. This creates increased risk to the employee of intimidation, harassment, identity theft, or other fraud.
By shortening the election time frames, the rule also effectively deprives employers of free speech, as it significantly limits the time they have to discuss union representation with their employees. This also infringes on employees’ right to make an informed choice.
As then-senator John F. Kennedy Jr. explained in 1959 during debates over amendments to the National Labor Relations Act (NLRA), a 30-day period before any election was a necessary “safeguard against rushing employees into an election where they are unfamiliar with the issues.”
Under current law, unions are permitted to campaign months prior to the election, and during that time promises are often made to employees. By shortening the election period, the rule greatly limits employers’ ability to respond to any promises or allegations made by the union and significantly reduces employees’ opportunity to gather all the facts needed to make an informed choice. Without these facts, workers may enter into collective bargaining relationships with misconceptions and unrealistic expectations, creating unnecessary labor-management tension and undermining the stability of the bargaining relationship and future labor and employee relations. This will negatively impact employees, employers, and consumers.
As one of the nation’s largest employers, the lodging industry has helped lead the national economic recovery with more than 50 months of steady, consecutive growth. It is important to note that our industry is composed largely of small businesses, with more than 55 percent of hotels nationally having 75 rooms or fewer. Many of these individually owned properties do not have the staff of human resources and legal experts needed to address the complexities associated with a representational election.
Many small business owners, when facing a union organizing campaign, need to consult with outside counsel to understand both the organizing drive and the complex legal requirements and responsibilities imposed by the NLRA. The ambush election rule requires a hearing within eight days of a petition, with an election held shortly thereafter. This leaves very little time for an employer to secure outside counsel and develop a response to the factual and legal issues involved in the election. Thus, the shortened election timeframes greatly increase the chance that smaller business owners will accidentally waive important rights or violate the NLRA or related laws.
AH&LA is leading the charge on Capitol Hill to stop this harmful regulation. The House and the Senate have passed legislation that would overturn the NLRB’s rule utilizing the Congressional Review Act (CRA). Under the CRA, Congress can overturn an agency’s rulemaking with a simple majority vote. Despite the success in Congress, however, it is anticipated that President Obama will veto the measure and force Congress to override his veto with a supermajority in both chambers. In addition, a number of business groups, including the U.S. Chamber of Commerce and National Federation of Independent Business, have filed lawsuits challenging the rule, which may ultimately delay its effective date.
Ensuring that employees make an informed choice about union representation is essential to stable labor and employee relations within the lodging industry. Small business owners within the hospitality industry—as well as the rest of the economy—are already struggling with current regulations. Adding such a complex array of laws and restrictions under the NLRA to an already substantial regulatory burden without time to secure legal counsel is unnecessary, unfair, and harmful to our economy and job growth.
About the Author
Brian Crawford is vice president of government and political affairs at AH&LA.
Editor’s Note: This article, which originally appeared in the March 2015 issue of Lodging, has been updated to reflect that both chambers of Congress have passed their respective bills to stop ambush elections.
