Roundtable Recap: Biden’s NLRB, UNITE HERE, and the pandemic discussed at 9th Annual CIHLER Labor Relations Roundtable

The Ninth Annual Labor Relations Roundtable, hosted by the Cornell Center for Innovative Hospitality and Labor Employment Relations (CIHLER), was held virtually in early March 2021. Led by CIHLER Director Dave Sherwyn ‘86, JD ‘89, the event featured a diverse set of labor and employment relations experts. Rick Hurd, CIHLER associate director, and Harry Katz, ILR professor and director of the Scheinman Institute on Conflict Resolution, brought academic and policy perspective into discussion with School of Hotel Administration (SHA) human resources professors, Bruce Tracey and Tashlin Lakhani as well as the leaders from the industry firms, management-side and plaintiff-side lawyers, and union officials who are members of the Center’s Advisory Board. This year’s agenda explored expected changes from the Biden administration’s National Labor Relations Board (NLRB), with the group projecting increases in union organizing, negotiations over vaccine requirements, and other pandemic-related workplace issues.

What to expect from the new NLRB? Big changes, lawyers say, and soon

Former NLRB member Harry Johnson, III of Morgan, Lewis & Bockius LLP characterized Biden’s rapid appointment of Peter Sung Ohr as Acting General Counsel and naming of Lauren McFerran as Board chairman (a current Board member who was elevated because her political party, Democrat, is now in the White House) as a “running start” for the new administration. He added that quick Board assembly and significant changes to labor law and regulation may appear by the end of 2021 as a result. A Democratic Board will examine management discretion in determining health insurance policy and procedures regarding union review of disciplinary actions. The Boeing test on employer rules and other civility practices will be re-addressed, and the joint employer doctrine, union election rules, and employers’ property control regulations are likely to be flipped, expanding employee rights to engage in union activity on employer property. Democrat and Republican Board members are expected to “battle” over the degree of procedural clarity required for waivers of bargaining rights within collective bargaining agreements (debated as “contract coverage vs. clear and unmistakable waiver”). “The law is this now,” said Michael Lebowich of Proskauer, “but I can’t rely on that.”

Employers and Unions – Neutrality agreements, waiver standards, property rights

“Under (former NLRB General Counsel Peter) Robb,” said Jessica Kastin of law firm Jones Day, “NLRB focused on neutrality agreements” (contracts between employers and unions in which the employers agree to support union work with its employees) “and wanted to blow them up, looking for the right case to challenge neutrality agreements, but now that effort will be gone.” Anti-union organizations (like National Right to Work) might seek a lawsuit to put the card-check neutrality issue before the presumably less-union-friendly Supreme Court. Paul Wagner of Stokes Wagner asserted that the Fair Labor Standards Act’s definition of joint employers (when more than one party is responsible for an employee’s pay) will be a big issue, because “using the outside vendor model for various parts of operations poses a risk or deserves consideration, regarding how it affects the ability to organize.”

Biden and Unions: influence, growth, choice

Stewart Schwab, former Dean of Cornell Law School, noted that President Biden’s Twitter comment on the union organizing drive at Amazon in Alabama was an extraordinary gesture for a president, even one who expressed steady and unequivocal support for unions. Although Barack Obama felt that “Presidents shouldn’t pick winners and losers,” the unions have been devastated by the pandemic, with high numbers of workers loaned out to other industries.

Hurd observed, “It matters that the president is commenting, and the more aligned Biden is with the efforts, the more important that will be.” Richard Benzinger, the lead union organizer in the Tennessee Volkswagen case, says that that employees’ union “no” vote came after its Senator and Governor warned that a vote to organize would drive the company and its jobs elsewhere. Johnson predicts Biden to be more interventionist in campaigns and more influential on the ongoing debate about whether the real policy behind NLRB is choice or growth. While organizing and neutrality are important, “For the next 12 months, the main focus will be on getting as many of their members back to work.”

Will we see an upswing in organizing? David Rothfeld of Ellenoff Grossman and Schole emphasized the presence of the traditional issue that leads to organizing: “Fear for the loss of one’s job”. In New York City’s hospitality sector, 25,000 employees have been laid off. Wagner noted that while only a subset of housekeepers are unionized, those that have been brought back from layoff are union members. “This will be a great talking point for Local 6,” he added, as evidence for non-union workers that membership can provide job security. Katz reminded that the economy is poised for recovery, but not necessarily in the hospitality sector, which will likely be affected by people’s inclinations, regional situations, and other factors.”

Vaccines and the return to work

Unions and employers find themselves navigating local legislation, public health realities, social misperceptions, and other factors driving the vaccination’s role in industry recovery. Hotel management’s most vexing HR concerns are vaccine pressure and empty positions to fill. A rep from a hotel operator explained its decision not to make vaccinations mandatory but to focus on encouragement and incentives. “We believe there’s a desire to deal with supply and demand and we could be on the same side as labor, looking for commonality.” This operator has 45 open culinary positions that they’re having difficulty filling, and the rep expressed a wish for the government to offer supplements to keep employees ready to return (rather than taking positions in other fields). “Everyone wants to bring our industry back.”

Another industry leader expressed worry about the President’s support for unionization but acknowledged that the immediate concern is that the majority of union members are not working and the focus is on trying to get people back to work as quickly as possible. A representative of a franchisee, traditionally a low union density employer, is expecting a flurry of efforts to organize and negotiate contracts. “We had a hotel get organized in May, and part of it was (because) the ownership was an easy get; we couldn’t campaign against them.” She expects that unions will continue going after easier targets as it seeks to grow its numbers and influence. Hurd predicts that hospitality union Unite Here will take advantage of political support but will not rely on it. “They will look for opportunities to organize in the current economy; focusing on ways to grow.”

Union influence on industry rules and protocols

An executive at one of the largest fast food franchisors commented on the intensity of union influence on certain industries. Legislation in New York City; Philadelphia; Chicago; Santa Monica, California; and Washington State around the just cause standards (governing employer options for disciplining or discharging employees) has been targeted for restaurant, parking lot, and hotel workers. High-end hotels have seen local legislation become very important to their day-to-day operations as well. Some of these policies and procedures were described as “ugly” because they seemingly target some industries more than others. Additionally, the executive noted California OSHA’s efforts to include paid sick leave in state hospitality regulations.

Room cleaning protocols are messy, too. Unions want daily cleanings, but many union members didn’t want to clean occupied rooms and many guests don’t want cleaners in their rooms, either. Large operators are looking for flexibility and are developing compromise options which will change in time, as guests grow more comfortable about asking. “(It’s) an interesting dynamic: union wants it, employees don’t want it; employers want it…” Lawyer David Rothfeld mentioned that last year, a union negotiated with a hotel company for a health and safety agreement which became the standard for the industry, providing for daily room cleans.  New York City’s hotel occupancy was at 10-15% in February, but by May and June it’s expected that 5 million New Yorkers will be vaccinated, which will certainly affect business.

 Vaccine policy as a marketing tool and a legal issue

Although lawyers expect disputes on this, vaccine policy can be viewed from a public health lens, as an employer-employee issue, and possibly a marketing tool, advertising “fully-vaccinated staff” to ease guest worries, as long as employees will want to comply.

While mandating the vaccine may send the wrong signal to some in the current climate, unions strongly encourage employees to accept the coronavirus vaccine in order to get people back to work. Some employees have been reluctant to accept the vaccine, citing hasty FDA approval, religious concerns, or protections under the Americans with Disabilities Act (ADA), not to mention the historical drug-study abuse of African Americans during World War II. Some operators have been successful in partnering with unions to encourage vaccinations, only to find that little or no employee interest.

Operators are establishing educational programs in hopes that convenience and friendly peer-pressure will achieve the level of immunity required for public safety and a return to business. SHA professor Tashlin Lakhani’s students are debating this. “It’s tough to mandate it from an employee morale standpoint. Many people have strongly held religious beliefs, or a disability. You have to have some way to incentivize without mandating it, especially in hospitality, where we’re struggling to get people to return to work.”

The panel discussed the religious accommodation and concluded that under current law, it is very likely allowing non-vaccinated employees to work would be considered an undue hardship and would not have to be granted. The panel also explored whether employees who contracted the virus could file workers’ compensation claims and suggested that their insurance carriers would incentivize their clients to require vaccines. Noting that unions and management are on the same page about wanting employees to be vaccinated, an industry executive stated. “Most people get flu shots,” and Stewart Schwab added, “There’s a sense that there can be normalcy on the other side of this,” adding that, “forecasting is an imperfect science.”

Common threats and the relationship between labor and management

Of course, the evergreen power struggle between labor and management will not go away. In some markets, there are tales of unions being unwilling to compromise in any way, while in others, there’s some collaboration. One hotel executive recounted experiencing the first case of COVID in a hotel, and making the choice to close it. While there was union blowback, the management insisted. At that point, he said, “Unions realized they couldn’t push owners and operators around.”

New lines of communication are being developed, however. Nigel Beck’s company When Labs makes software that helps hotels manage staff in compliance, and is running several projects where both the union and the management are his customers. “In San Francisco, we’re going to connect the hiring hall with the property in a successful pilot from the union side. We had time to try something new and ask what people really wanted. Pre-pandemic, we would not have seen this.” Future work will require different thinking, he added, something really different “about how we can match people’s demand and supply side concerns more effectively…what does it mean to work, and where, and when someone can’t show up.”

Another hotel operator executive observed that you can assess market conditions based on the level of cooperation with unions, saying that secondary markets have been able to get back and running, via concessions like short shifts and job switching. “Where we’re able to work with unions, we’re able to get opened up.” A lesson for all markets?