Many employers have asked if there are any labor issues that they should prepare for in order to position their business to operate with maximum flexibilty and achieve organizational objectives. Yes, even if an NLRB is more employer-friendly, as it appears, than its predecessor. The answer is yes, because unions will likely use certain tactics to include unrepresented employees in existing bargaining units at the workplace.
The hospitality industry will not be spared. Although the hospitality industry has historically been a relatively low-unionization rate outside major cities, the last two year saw a record number of hospitality strikes across the US as workers fight for better working conditions and pay following pandemic-era policy shifts—not to mention the ongoing adoption Automaton and other technologies could threaten employee’s jobs. By the second half of 2020, over In the years 2024 and 2024, more than 10,000 hotel workers in LA and Orange County will have gone on strike. walked Off the job in nine cities
As unions are preparing to dismantle many previous NLRB General Attorney’s Memoranda, which, among other things made union organizing easier, employers need to be prepared to have unions use Armour-Globe Elections and accretion Petitions to add unrepresented workers to existing bargaining unit. Given the unionization trends in the hospitality sector—and the number of employees who have still yet to participate—that shift should be a wake-up call to hotel operators and HR departments alike.
Explanation of Armour-Globe Elections
Armour-Globe Elections, also called self-determination election, are a tactic that has been around for a very long time. However, historically, it was a rarely used by unions. Recent years have seen a rise in the use of Armour-Globe Elections, with high success rates. To help their representatives and organizers understand this strategy, unions offer training sessions.
What is an Armour-Globe Election? This is an election where employees can vote to join a union bargaining unit if they are part of a group that has a common interest. How is “community interest” determined by the NLRB? The NLRB takes into account factors like:
- Similarities in the job functions
- The same wage, hours of work and working conditions
- Similar skills, duties, and training
- Management and supervision of common interest
- Contact and exchange between the represented and non-represented employees
- Functional integration between represented and non-represented employees, including the use of the same tools and equipment
- Geographic proximity
- Collective bargaining History
As the NLRB analyzes all factors, they do not have to be present in order for a determination of a common interest. The NLRB does not use a single factor to determine if there is a community. However, where employees are in contact with each other and they share responsibilities, it has found that the NLRB can find a common interest.
Where do unions use Armour-Globe Elections? There are many situations where unions use Armour-Globe elections. The nature of the hospitality industry, which is dominated by large hotel chains’ independently run locations—and numerous types of employees within each location—makes it particularly vulnerable to such elections.
The accretion or unit clarification petition can be a more effective way for unions to include workers in a unit that is already unionized, as the unrepresented employees do not get to vote about whether they want to join a union. After a union files an accretion request (and typically a hearing with the NLRB), it will add unrepresented workers to an existing bargaining group if they could not form their own separate unit, and if employees who want to be added share a strong community of interests with the employees of the existing unit. The NLRB’s community of interests factors are largely identical to those used for an Armour-Globe vote.
How to Respond to Emerging Union Representation Strategies
What can employers to do best position themselves to respond to union strategies? Take into consideration the following best practices.
- Examine unrepresented groups at work Assess whether and which community of interest factors are present with respect to the represented units of employees that they could be added to. Ask if the workplace should be organized as it is currently: for example, would common supervision make any sense? Can you get the job done without employee exchange? Is it necessary to train employees together, or can training be done separately?
- Evaluate job descriptions. Analyze whether the job descriptions clearly and accurately identify the job skills and duties for employees who are represented and those who are not. Are the performance standards for represented and non-represented employees different?
- Consider whether the unrepresented employees are so closely related to represented employees as to warrant their own bargaining unit. Employers who can prove that unrepresented employees are capable of having their own unit cannot have them accreted into an existing unit. There are several ways to show that unrepresented workers could have their own unit and that an accretion petition will be rejected. These include: holding meetings or work functions specific to unrepresented employees, using separate workspaces and other equipment, and using workplace policies specifically designed for the unrepresented group.
The NLRB’s shift to a pro-employer stance will not lead unions to abandon their mission of representing employees at work. In fact, unions may be compelled to revert back to old strategies that have been firmly established in NLRB case law and procedure. These strategies are available to hospitality employers and HR departments. They should review their operation to make sure they’re structured in a manner that gives them the most self-determination and allows them to run their business in a best-suited way.
Kristin E. Michaels
Partner, Labor & Employment
Neal Gerber Eisenberg
