Hotel Unions Challenging Work Rules Found in Hotel Employer
Unions involved in the hospitality industry, such as the Hotel Employees and Restaurant Employees (“HERE”), are currently waging a massive campaign challenging certain work rules typically set forth in hotel employer handbooks.
These attacks claim that the work rules in question unduly interfere with employees’ rights to organize and engage in legally protected union activity. The National Labor Relations Board or NLRB also confirms a corresponding significant increase in the filing of unfair labor practice charges against hospitality industry employers on these same work rule issues and employee handbooks.
Rules against buttons, flyer distribution and solicitation. In the past, unions have successfully overturned work rules inhibiting union activity, such as rules prohibiting employees from wearing union buttons on their uniforms or other work clothing and rules broadly banning employee distribution of literature and solicitation.
Rules against offensive statements. The current trend, however, is far broader than the traditional challenge to such work rules. For example, relying on prior NLRB precedent, unions are alleging that work rules are unlawful which prohibit employees from making “false, vicious, profane or malicious statements” regarding other employees, guests or the hotel itself.
Several years ago, the NLRB ruled in a case involving the Flamingo Hilton Hotel in Laughlin, Nevada that such rules are unlawful to the degree they could be read to prohibit union propaganda that is “merely false.” Nevertheless, many employers continued to maintain such rules on the ground that when an employee tells lies about guests, the hotel or other employees, it interferes with the employer’s ability to maintain a harassment free environment and its legitimate business interests to promote harmonious guest relations.
Rules barring hanging around premises after work. Unions are also challenging work rules barring employees from premises during their time off or imposing time limitations on the amount of time that off-duty employees can remain before and after shifts. Unions claim such rules are overly broad insofar as they bar off-duty employees from soliciting other off-duty employees even in non-guest areas of the hotel. In the past, the NLRB has sided with unions on this issue.
Rules prohibiting disclosure of confidential information. Rules prohibiting employees from divulging hotel private or confidential information to other employees or individuals are currently being attacked on the ground that the rule “could be” read to prohibit discussion of wages and working conditions among employees or with a union. Because it is impermissible to ban employees from discussing salaries, bonuses, wages and working conditions with other employees, such rules could theoretically include a ban on these subjects and would, therefore, be unlawful.
Rules limiting time and place of union solicitation. While the law in the area of solicitation-distribution rules is largely settled, a case decided in April 2003 by the D.C. Circuit Court of Appeals (generally an employer-friendly Court) opens the door to additional union claims of illegal work rules. In a matter involving Stanford Hospital, a local of the Service Employees International Union or SEIU challenged the hospital’s policy prohibiting solicitation of employees and distribution of literature “during working time and at all times in patient care areas.”
The NLRB found that the policy was overly broad because “patient care areas” included hallways and lounges used by both patients and employees. The Appeals Court agreed with the NLRB finding that the hospital failed to define patient care areas and failed to show that prohibiting on a twenty-four basis all solicitation and distribution of literature by employees in all patient care areas was necessary to avoid disruption of patients and patient care. Similarly, work rules in the hospitality industry which ban the solicitation and distribution of literature in all “guest areas” without further definition or explanation in employee handbooks may now be subject to challenge.
Practical tip for employers. Employers should note that when the NLRB considers these challenges to employment policies, it uniformly finds irrelevant the employer’s motivation in drafting the language and whether the employer has ever actually applied the rule in an overly restrictive manner. In other words, good intentions and fair applications of rules will not be an effective defense.
Accordingly, employers should review work rules — in employee manuals or elsewhere — to ensure that they have been carefully tailored to be defensible. To defend a broad ban, the employer needs to include specific definitions of the prohibited conduct. In the case of solicitation-distribution rules, hotel employers should specifically describe areas of the hotel where the conduct is prohibited and ensure that the defined areas fall within the appropriate constraints of the National Labor Relations Act. As the decided cases suggest, an employer’s general unease with solicitation activities will not in itself be enough to justify banning solicitation at times and places where it does not unrea-sonably interfere with employees’ performance of their duties or guest relations.
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