SAN FRANCISCO—The threat of unionization is like an ongoing game of chess: to maintain the upper hand, HR professionals must always think one step ahead, according to experts during last week’s HR in Hospitality Conference & Expo.
Those who anticipate problems before they arise likely will emerge victorious. For those who learn of the threat only after a petition to unionize has been filed, the fight already has been lost.
Hotel employees generally unionize to collectively bargain for fair wages, health benefits, retirement security and ultimately to protect workers’ rights.
In broad terms, there are three ways a union can organize, according to David Sherwyn, professor of law at the Cornell School of Hotel Administration.
1. Unions come in and petition for an election under the National Labor Relations Act.
2. A card-check neutrality agreement already exists at the property.
3. A union comes in and demands card-check neutraility.
The first is what Sherwyn cheekily referred to as “good, old-fashioned” union organizing. A union needs 30% of employees at the hotel or within a given department to say they want an election before an election can be scheduled.
“As a practical manner, no union’s going forward with 30% because in the time they file to when there’s an election—which is a median of 38 days right now—then union loses support; they don’t gain it,” he said.
Typically a union will wait until 60% or 70% of employees agree to unionize before attempting an election, Sherwyn said.
The 38-day period in between is the “critical period,” in which an employer must abide by certain rules and regulations. For example, an employer can’t ask its employees how they plan to vote in the secret ballot.
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Celeste Yeager, an attorney with Gardere Wynne Sewell LLP |
Employers can, however, bring in their managers and have them begin to identify how each individual employee plans to vote—which is the first thing an employer should do, said Celeste Yeager, an attorney with Gardere Wynne Sewell LLP. It’s especially effective when those managers can convey past union experiences to hourly workers. For example, a manager might tell his hourly workers about his brother’s experience in a union and the difficulties he experienced therein.
“If you get that kind of information early on, you could implement some sort of counter-union strategies to avoid that all together,” she said. That typically means educating the workforce about what the employer offers versus what a union can offer.
“That’s why this 38-day period is so important, because you want to convey truthful messages of what a union means to your employees,” Yeager said.
Sherwyn also suggested hiring an attorney to help identify the key issues and run a successful and legal campaign—but only if you have a real shot at winning, he said. “If you can’t win, it doesn’t make a hell of a lot of sense to spend a fortune on a campaign.”
Living with card-check neutrality
The second way a union will attempt to organize is through an existing card-check neutrality agreement at the hotel. Under this circumstance, a union organizer can be on property and organize when the majority of employees sign cards expressing their desire to unionize.
While the threat is more pressing and constant in this scenario, that doesn’t mean an employer can’t fight back. Just as they might approach the 38-day critical period above, employers must continue to educate their employees on what they offer versus what a union can offer, Sherwyn said.
Another area to educate employees on is progression plans, Sherwyn said.
“If your people plan on moving up in the company, they don’t want to be hourly for the rest of their lives, then all of these benefits don’t mean a whole hell of a lot,” he said. “… That is a great avoidance tool.”
Union demanding card check
The third and final scenario arises when a union comes into a hotel and demands chard-check neutrality, typically through a corporate campaign.
“The corporate campaign, Unite Here and Workers United have a book on how to run the corporate campaign,” Sherwyn said. “ … They will attack where you believe you’re most vulnerable. They’re going to threaten to ruin your business.”
Protesting, phone calls and disruptive media stunts are commonly used tactics in the corporate campaign. Sometimes union organizers will even engage in illegal tactics to generate more bad publicity at a property.
“You’ve got your unions trying to put the pressure from the top down to make your corporate people say, ‘I’ll sign anything if you stop beating up on me,’” Yeager said.
One possible defense is arguing those acts are predicate acts that violate the Racketeer Influenced and Corrupt Organizations Act, or RICO Act, Sherwyn said.
“The unlawful acts, as long as it’s a continuing enterprise, and they’re violating the law, you can argue RICO,” he said. “… If you are on property and a union is engaging in a corporate campaign and they are doing things that you think crossed the line, that’s the time to take notice and write stuff down.”