HOUSTON — The National Labor Relations Board is in limbo right now when it comes to official decisionmaking, but hoteliers still need to be aware of movement happening on labor and union practices, and what will come next.
The five-member NLRB is an independent government agency responsible for enforcing the National Labor Relations Act and hears cases regarding collective bargaining and unfair labor practices, among other topics. After President Donald Trump fired member Gwynne Wilcox earlier this year, the group currently lacks a quorum, or official number of members required to hear cases and make decisions.
Robert Bernstein, partner at law firm Laner Muchin, explained what this means for hotel and restaurant owners at the Hospitality Law Conference: The complete NLRB likely will emerge as a Republican-dominated group and make decisions according to practices typical of the party's stances. But in the meantime, Biden-era decisions still stand and the hospitality industry must act accordingly.
Also at play: Trump replaced NLRB’s general counsel Jennifer Abruzzo with William Cowen on an interim basis while Trump nominee for the role Crystal Carey goes through the Senate confirmation process.
Cowen has rescinded 29 general counsel memoranda from President Joe Biden’s administration, Bernstein said, but the NLRB's current state of limbo means they're not officially overturned.
"They were some real important topics” Bernstein said, referring to the rescinded memoranda. “The expanded remedies that under General Counsel Abruzzo could be had for unfair labor practice charges, generating more potential monetary relief. The board's more rigid stance for non-compete and other restrictive covenants. Severance agreements — this was a big one. We spent so much time with clients on this, and you still have to pay attention to it even though this memo is rescinded.”
The administrative law judges in the NLRB’s regional offices continue to work through cases at this time, but they stop at the board level without a quorum to make new decisions, overturn past decisions or set new precedent.
But he offered some predictions for "after the dust settles," which he added would hopefully happen sooner rather than later.
"There will be a Republican board with drastically different policies and decisions consistent with prior cycles — much more business-friendly, much more hotel-, much more restaurant-friendly," he said. "The NLRB and the general counsel will start issuing pro-management policies, directives and decisions and rescinding those from the Biden era.”
Employers are hoping for a reversal on the Cemex Construction Materials Pacific case from 2023, Bernstein said. That decision allowed unions to organize workplaces through other methods than the conventional secret-ballot election.
“What it also said is if there were unfair labor practice charges committed by an employer during the critical period, in other words during the period that’s leading up to the secret-ballot election, that could result in what’s called the ‘Cemex Order,’ and an automatic decision by the board that the employer needed to recognize and bargain with the union.”
Until the president nominates another candidate and the Senate approves him or her, giving the NLRB enough members for a quorum, hotel and restaurant owners and operators should assume Biden-era case law and rules and regulations are still good law, Bernstein said. They should stay the course and keep an eye on what’s going on as things progress.
There are a lot of investigations underway of alleged unfair labor practices as well as petitions filed by unions to represent workers, he said. The NLRB’s regional offices are processing them now, but they aren’t advancing as of late.
“We’re going to still have to cooperate, and we’re going to still have to do all the things we would do to put our best foot forward in the case of unfair labor practices charges to try to get them dismissed,” he said. “In the case of post-election hearings, to try to get objections dismissed.”
Among the active cases now related to hotels and restaurants, an administrative law judge found a hotel in Boston unlawfully withdrew recognition of a union, Bernstein said. The hotel received a petition with signatures of 19 out of the 27 bargaining unit employees requesting to leave the union. The hotel honored the petition, but the judge found the hotel had to bargain with the union and was barred for a certain amount of time from challenging the majority status.
In another case involving a celebrity chef and a hotel consortium in New York City, the union lost a secret ballot election but then challenged it, Bernstein said. They argued inappropriate conduct occurred in the time leading up to the election. The administrative law judge dismissed most of the allegations, but it did find the employer violated the National Labor Relations Act by telling employees that they knew about their text messages, social media posts or other communications and solicited directly employees’ complaints and offered to remedy them.