NLRB: No Union, No More Was OK

Darrell VanDeusen
Darrell VanDeusen

I last blogged in April and wrote about the next generation of union organizing and the current  efforts by the NLRB’s General Counsel to overturn long standing Board precedent.  Increased efforts to organize Starbucks, Amazon and Apple cannot and should not be ignored.

And lots of media attention is directed at the issue.  Often, however, the view is that it’s conscience shocking to believe some employees might NOT want to be in a union.  Or that the reason unions don’t win all the time is due to employer bad behavior and an unlevel playing field.  It’s the tired mantra of “if I didn’t win it’s because the game was rigged.”

Of course, to someone who only has a hammer, everything looks like a nail.  But life is more nuanced than that, which brings us to today’s case:  Island Hospitality Management II, LLC d/b/a Hampton Inn – Long Island Brookhaven, 371 NLRB No. 103 (May 31, 2022).

In 2019, the New York Hotel and Motel Trades Council won an election to represent Hampton Inn employees in Farmingville, N.Y.  After some initial jostling between the parties, negotiations ensued.  But after more than one year of negotiations, no agreement on a CBA was reached.  That timing is important because, for one year after a union victory, the legal presumption is that the union has support of a majority of the workers in the bargaining unit.  Note:  this is one reason why most newly certified unions are eager to get a CBA ratified within the first 12 months of an election win.

Here’s what can happen when that does not occur.  In February 2021 – two years after the vote – eight of the 10 workers in the bargaining unit signed a petition telling the employer “We, the employees of the Hampton Inn, located at 2000 North Ocean Avenue, Farmingville, NY 11738, are stating that we disagree with a union being brought in.”  The majority of the employees were native Spanish speakers, and the petition was presented in English and Spanish.

The employer determined that this petition demonstrated the union did not have majority support and withdrew recognition.  The union filed an unfair labor practice (ULP) charge.  Noting that there was no evidence alleged that the employer had any involvement with the employee petition (something that would have been a ULP), an Administrative Law Judge found the employer’s withdrawal of recognition appropriate.  The ALJ said:

“[W]hat happened here is straightforward. An overwhelming majority of the bargaining unit, without prompting or interference, gathered signatures on a petition which they then presented to their employer advising that they disagreed with having brought in the Union. This was an extraordinary act, not something employees do without careful consideration or without purpose. The fact that the language used in their petition was not as well-crafted as it might have been does not change what is the only reasonable interpretation of the petition: that the Union no  longer enjoyed the support of the majority of the unit and that the employees wanted their employer to know it.”

The union appealed to the full Board. In a 2-1 decision, the NLRB affirmed the ALJ’s ruling.  But here’s the “interesting” thing:  the Board majority was Chair Lauren McFerran (a Democratic appointee) and member John Ring (a Republican appointee).  This “bipartisan” majority agreed with the ALJ that “the employees’ petition . . . understood in context, does more than express dissatisfaction with the Union, but rather clearly indicates the desire of a majority of employees to end union representation.”

The dissenting member, Gwynne Wilcox (a Democratic appointee), disagreed. She thought that the petition lacked “sufficient clarity” to constitute objective evidence of an actual loss of majority support.

No doubt much will be made of the fact that the Democratic appointees were not in lock-step here. But that is one of the unfortunate consequences of our hyper-polarized political world.  Deciders – whether Article III judges or executive branch appointees – should be expected to reach reasoned decisions that sometimes disappoint folks who supported their appointment. 

Assuming that because someone is of one political party (or who when in private practice represented labor or management) they will always vote a certain way is both wrong and insulting to those individuals who try to get it right based on precedent and sound legal reasoning.

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