Chamber of Commerce falsely portrays hotel case to attack NLRB

NYHTC — November 27, 2011

An anti-union front organization set up and controlled by the U.S. Chamber of Commerce is using a recent decision by the National Labor Relations Board ("NLRB") involving our union to ludicrously portray the government agency as "activist" and "anti-employer." The attack is part of a well-funded lobbying campaign by employers aimed at frightening the normally timid Labor Board to retreat from some very modest recent attempts to do its job of enforcing workers' rights. The case concerns the employer's mass punishment of 13 employees of the Crowne Plaza LaGuardia hotel who gave a petition about layoffs to the hotel's chief operating officer.

In an article on its anti-union website, the U.S. Chamber of Commerce describes the Crowne Plaza workers' action as "violence in the workplace," "a melee," an "assault", and a "mob." This is a deliberate misrepresentation. Accustomed to having a weak case, the right-wing often relies on, and gets far too much mileage out of, little anecdotes. When even their anecdotes are untrue, somebody ought to set the record straight. For the benefit of those who stumble in cyberspace upon the Chamber's dishonest characterization of this case, the following is an accurate factual rebuttal.

On December 10, 2008, a few minutes before the 8 a.m. start of the morning shift, a delegation of 13-15 workers at the Crowne Plaza LaGuardia went to the office of the chief operating officer ("COO") to give him a petition, asking that announced layoffs be implemented by seniority. He was not there. A security guard told the workers the COO might be in the lobby area, a short distance away, and escorted them there to find him.

They quickly located him in a narrow corridor adjoining the lobby and waited for him to conclude his cell phone conversation. They and the security guard gathered around him when he got off the phone. The worker leading the delegation, which was composed almost entirely of housekeepers, attempted to read a brief three-sentence petition to the COO; when the COO cut him off and began to move away, the worker attempted to hand him the petition.

Instead of simply taking the petition, the COO responded by telling the security guard, "Do you see this... They're not letting me out." The guard, a man of imposing size, took the boss's cue, cut into the group, and the COO, followed by the guard, began walking away. Before leaving the workers behind, the COO finally took their petition, claiming he hadn't realized until just then that that is what the group had wanted him to do. The delegation members then dispersed immediately. A hotel videotape shows the COO leaving the area at 8:01:19 a.m. and the security guard at 8:01:21 a.m.

The Chamber of Commerce's distorted and inflamed account of the encounter doesn't mention a number of significant facts, one of the most significant being that, from start to finish, the COO and the workers were in each other's general presence for only 57-58 seconds, and their actual interaction lasted no more than 38 seconds. Yet, on the basis of the workers' 38-second effort to give a manager a petition, the hotel swiftly suspended 13 of them virtually every one who had participated in the delegation without pay. Two days later, it fired four workers, suspended another five for three days, and gave four other workers written warnings. The four workers fired (a houseman and three housekeepers) had lengthy records of service at the hotel 19, 20, 17, and 16 years respectively.

Under the National Labor Relations Act, the workers had a right to petition and delegate management. They filed charges with the NLRB claiming that they had all been fired in retaliation for petitioning management.

One year later, an administrative law judge upheld every one of the punishments the hotel imposed. He found that the four workers who had been terminated had touched either the COO or the guard or impeded the COO at some point during the 38 seconds they were in each other's immediate presence. As for the five suspended workers, he concluded they deserved to be disciplined because they "were part of a group that used loud voices, were away from their work stations, and attempted to prevent [the COO] from leaving the area." Finally, the remaining four workers were, in his view, justifiably issued written warnings because "of their participation in the confrontation and being part of a group that used loud and inappropriate voices." So, even though their effort to give the COO the petition was protected, concerted activity, they were, according to the administrative law judge, rightly punished because their behavior during the 38-second period "impaired" the COO's authority and respect and "exceeded what could be expected or tolerated."

The workers appealed, and the NLRB partially upheld and partially overturned the decision of the administrative law judge. For not docilely agreeing with the administrative law judge that the hotel was entirely within its rights to discipline all 13 workers in exactly the way it did, the Chamber of Commerce attacked the NLRB, idiotically claiming that the Board's decision gives a "free pass" to workers who participate in "violent confrontations" in the workplace. Nothing could be further from the truth. The administrative law judge did not find any act of violence, any melee, altercation, or physical battery of any sort, and the security videotape plainly shows that absolutely no violent confrontation or workplace violence of any kind occurred.

In fact, the NLRB's very measured and conservative decision deferred, we believe wrongly, to the administrative law judge's dubious credibility findings and upheld the hotel's firing of three workers who had served it for a cumulative 56 years. It held that they had not been engaged in protected activity because they had briefly touched the COO during the 38 seconds. Using this decision as evidence that the Board is "activist" and "anti-employer" doesn't pass the laugh test.

Nor does the fact that it overturned the termination of the 66-year-old, 5' 3" housekeeper the hotel fired for briefly touching the wrist of the 310-pound security guard, noting that it might have been "an instinctive reaction ... to [his] arm-waving."

The Board also overruled the administrative law judge, in part, by finding that the five workers the hotel had suspended and the four it had written up had been wrongly punished because they had been engaged in legally protected activity under federal law and had not done anything wrong. The Chamber of Commerce's wrath, however, came down on the NLRB for failing to follow the old tried and true principle of right-wing justice: "kill 'em all and let God sort 'em out."

The Chamber of Commerce, understandably, chose to ignore anything that undermined its portrayal of the workers as a gang of brute peasants running loose through the hotel, assaulting managers and frightening the gentle folk, just as it chose to ignore any mention of the fact that the event supposedly necessitating the discipline of 13 workers lasted all of 38 seconds.

The delegation of workers which the Chamber of Commerce called a "mob," had been composed almost entirely of housekeepers. With the exception of two housemen on the delegation, all of the other participants were women, a number of whom were in their 50s and 60s and a good deal older than the COO and the guard. In addition, they were not strangers to the COO, as a number of them had been employed at the hotel for many years, and the COO had known them for many years.

The male security guard by the side of the COO throughout his fleeting encounter with the workers was a thoroughly imposing figure, and clearly shown to be such on the security video of the incident. Over 6' tall and 310 pounds, he towers over the workers, and is taller than the COO, who is 6' 1" and 240 pounds. The three room attendants fired for momentarily touching them were 52, 65, and 66 years of age. Two of them were 5' 3".

The COO testified he did not know that it was a petition that the leader of the delegation had in his hand or that he wanted the COO to accept it. The administrative law judge noted in his decision that the COO "just heard the employees say that they wanted him to listen to them." That was all the employees wanted, that was what they were asking him to do, and they were fully protected under the law in doing that. Yet, he chose to ignore them, and then punish them all severely.

And on these facts, the Chamber of Commerce and its inaptly named "Workforce Freedom Initiative" brazenly assert that the "real issue at hand" is "that employers and customers should not have to tolerate violence in the workplace."

How shameful, how absolutely shameful.

Redmond, Sean P. Let's Get Ready To Rumble: NLRB Rules Melees At Work Are Protected.'s-get-ready-rumble-nlrb-rules-melees-work-are-protected

LaGuardia Associates, LLP d/b/a Crowne Plaza LaGuardia and New York Hotel & Motel Trades Council, AFL-CIO, Case 29-CA-29347. Decided September 30, 2011.