On November 30, 2020, the NLRB Regional Director issued a Complaint against the Yotel Boston hotel and Unite Here Local 26, alleging the Hotel unlawfully recognized and provided improper assistance to the Union.

The Hotel and the Union were parties to a neutrality agreement.  As is common in such agreements, the Hotel agreed to provide the Union with employee contact information and access to non-public parts of the property. The hotel allegedly also went beyond maintaining silence with management publicly expressing support for the Union.

The Regional Director’s decision to issue the Complaint comes several months after NLRB General Counsel Peter Robb issued a potentially precedent-shifting Guidance Memorandum that seeks to apply closer scrutiny to neutrality agreements.

Changes to Evaluating Neutrality Agreements in GC Memorandum

In his September 2020 memorandum, General Counsel Robb proposed two key changes to current Board law.

First, the GC argues that employers should not be able to provide “more than ministerial aid” to unions during an organizing drive.  This is the current standard that applies to employer conduct in the decertification context. Currently, the Board applies a “totality of the circumstances” analysis to determine if an employer has provided too much assistance in supporting a union organizing drive.  The GC argued it is difficult to apply this multi-factor standard that lacks clear guidance as to what is lawful and yields inconsistent results.

Second, he seeks to overturn the Board’s decision Dana Corp., 356 NLRB 256 (2010), which held that neutrality agreements typically do not interfere with employee free choice and thus do not violate the NLRA. GC Robb advocated that the Board should also apply the “more than ministerial aid” standard to neutrality agreements.

GC Robb advocated using a bright-line test that would find a violation if, in a neutrality agreement:

(1) the parties negotiate terms and conditions of employment prior to the union attaining majority status;

(2) the parties agree to restrain employee access to Board processes and procedures; or

(3) the parties agree to any provision that is inconsistent with the purposes and policies of the Act, such as by impacting Section 7 rights by providing support of the union’s organizing activities, rather than neutrality.

It is the last point that goes after the neutrality agreements that are common in the hospitality and other industries.  Specifically, GC Robb provided examples of neutrality-agreement provisions that would be prohibited under the “more than ministerial aid” analysis:

  • Allowing non-employee union organizers access to employer facilities;
  • Allowing union solicitation during working time;
  • Providing a union with employee contact information; and
  • Making certain statements of preference for a specific union.

First Case Heading to the Board

The Memorandum did not create new law, but rather it demonstrates the prosecutorial priorities of the NLRB General Counsel and, now, with the Yotel case we see that Regions are following the directive.  This is a prime example of how Board law could ultimately be changed — from issuance of a Guidance Memorandum by the NLRB GC, through the issuance of a Complaint, and then through prosecution at the ALJ and then Board level.

Again, the state of the law has not changed and Dana Corp. has not been overturned with respect to the standard applied to neutrality agreements.  But if the GC’s position is ultimately adopted by the Board — which likely will not occur until late 2021, at the earliest, and given the new administration coming in January, will greatly depend on the composition of the Board at the time — then the implications will be significant with respect to whether employers may decide to enter into neutrality agreements and if so, the terms of those agreements.  Even prior to the adoption by the Board of the GC’s position, many employers and unions may decide to enter into far more vanilla neutrality agreements than they otherwise would have to avoid the uncertainty fostered by protracted litigation.

We will continue to monitor updates on these issues, and whether the standards advocated by the General Counsel become law.

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Photo of Michael Lebowich Michael Lebowich

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional…

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He also has significant experience in representation and unfair labor practice matters before the National Labor Relations Board.

His broad employment law experience includes handling of race, national origin, gender and other discrimination matters in state and federal court. A significant amount of his practice is devoted to counseling clients regarding the application and practical impact of the full range of employment laws that affect our clients, including all local, state and federal employment discrimination statutes, the Fair Labor Standards Act, the Family and Medical Leave Act, and state labor laws.

Michael has substantial experience in a wide variety of industries, including entertainment, broadcasting, newspaper publishing and delivery, utilities and lodging. He represents such clients as The New York Times, BuzzFeed, ABC, the New York City Ballet, PPL, Pacific Gas & Electric, Host Hotels and Resorts, and The Broadway League (and many of its theater owner and producing members).  Michael also has significant public sector experience representing, among others, the City of New York and the Metropolitan Transportation Authority.

Michael is a frequent guest lecturer at Columbia Business School, the Cornell School of Hotel Administration, the New York University Tisch School for Hospitality, Tourism and Sports Management, and is an advisory board member of the Cornell Institute for Hospitality Labor and Employment Relations.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.