With the recent change in the makeup of the National Labor Relations Board (NLRB), many employers are asking whether there are any labor relations issues they should be preparing for to best position their businesses to operate with maximum flexibility and achieve organizational goals. Even with an NLRB that, by all appearances, will be more employer friendly than its predecessor, the answer is yes. This is because unions may likely turn to certain tactics to add unrepresented employees to existing bargaining units in the workplace.
Hospitality employers won’t be spared. Though the industry has traditionally had a relatively low unionization rate outside of large cities, the past two years 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 of automation and other technologies that could threaten employees’ jobs. In the back half of 2023, over 45 hotels across LA and Orange counties went on strike more than 100 times, while in 2024 over 10,000 hotel workers walked off the job in nine cities.
As unions begin to see the dismantling of many of the previous NLRB General Counsel’s memoranda that, among other things, made union organizing and representation easier, employers should be prepared for an increased use by unions of Armour-Globe elections and accretion petitions to add unrepresented employees to existing bargaining units. 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.
Armour-Globe Elections, Explained
Armour-Globe elections, also known as self-determination elections, have been around a long time but historically have been a seldom used representation tactic by unions. However, the use of Armour-Globe elections has seen an uptick more recently and with a high success rate. Unions are holding training sessions for their organizers and representatives to understand how and when to employ this strategy.
What is an Armour-Globe election? It is an election that allows employees who constitute a distinct, identifiable group and who share a “community of interest,” with employees already represented by a union to vote on joining that union bargaining unit. How is a “community of interest” determined? The NLRB looks at factors such as:
- similarity of job functions
- similarity in wages, hours and working conditions
- similar skills, duties and training
- common management and supervision
- contact and interchange among the represented and unrepresented employees
- functional integration among the represented and unrepresented employees including use of the same equipment, tools and resources
- geographic proximity
- collective bargaining history
All of these factors do not need to be present for a finding of a community of interest as the NLRB uses a totality of the factors analysis. No one factor is determinative, although where interchange of employees and common supervision exists, the NLRB has typically found a community of interest.
Where are unions using Armour-Globe elections? Among other situations, with (a) multiple employers who constitute a single employer; (b) with employees located in different locations of the same employer; and (c) with different departments or groups of employees within the same employer locations. 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.
An accretion, or unit clarification, petition is a potentially even more effective tool for unions to add workers to a unit of represented employees, because in an accretion proceeding the unrepresented employees are not given an opportunity to vote as to whether they wish to be union-represented. Following the filing of an accretion petition by a union (and usually a hearing before the NLRB), the NLRB will add the unrepresented employees to an existing bargaining unit if the unrepresented employees could not constitute their own separate bargaining unit and where the employees sought to be added to the existing unit share an overwhelming community of interest with employees in the existing unit. The community of interest factors used by the NLRB in making an accretion determination are largely the same as those used in an Armour-Globe election.
How to Respond to Emerging Union Representation Strategies
What can employers do to best position their businesses to respond to these union strategies? Consider the following best practices:
- Review unrepresented groups of employees in the workplace and evaluate whether, and which, community of interest factors exist with respect to represented units of employees to which they could be added. Where community of interest factors exist, ask whether the workplace needs to be organized in its current fashion: For example, does common supervision make sense? Is employee interchange needed or can some other method of getting work done be used? Do employees need to receive job training together or could training be handled separately?
- Evaluate job descriptions. Along the same lines, analyze whether job descriptions accurately and specifically identify the different job skills and duties of the employees in the represented and unrepresented groups. Are represented and unrepresented employees evaluated on distinct performance standards?
- Assess whether unrepresented employees share such an overwhelming community of interest with represented employees that they could be their own separate bargaining unit. If an employer can demonstrate that the unrepresented employees could be in their own bargaining unit, then these employees cannot be accreted to an existing unit. Among the ways to demonstrate that unrepresented employees could be their own unit such that any accretion petition would be defeated: Holding meetings and work functions that are specific to the unrepresented employees; using separate workspaces and equipment; using workplace policies specific to the unrepresented group.
A change in the NLRB to a more pro-employer stance does not mean that unions will abandon their mission to represent employees in the workplace. Indeed, unfavorable NLRB headwinds will likely propel unions to revert to strategies that are firmly entrenched in NLRB procedure and case law and unlikely to change under revised NLRB makeup. Hospitality employers and HR departments should be mindful of these available strategies and review their operations to ensure they are structured in a way that allows them the greatest self determination and ability to run their operations in a way that best serves their business.
Kristin E. Michaels
Partner, Labor & Employment
Neal Gerber Eisenberg
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