Is a Demand for a Neutrality and Card-check Agreement a Demand for Recognition?

An organizing dispute between UNITE HERE and the Hartford Marriott has come to an anticlimactic end.  In Marriott Hartford Downtown Hotel, N.L.R.B., No. 34-RM-88 (Sept. 14, 2007) (unpublished), the Board affirmed the Regional Director's dismissal of the employer's election petition.  This comes as a surprise because last year the full Board (in a 3-2 order) granted review of the Regional Director's decision, stating that it raised issues meriting review, 347 N.L.R.B. No. 87 (2006).  The background of the case (as quoted from BNA's Daily Labor Report (subscription required)) is as follows:

Marriott opened a hotel in August 2005 in downtown Hartford, Conn., next to a new convention center. Both the hotel and the convention center are part of a publicly funded development . . . . A UNITE HERE Local 217 representative requested in August 2005 that the hotel "begin discussions about a Labor Peace agreement." Hartford's Living Wage and Labor Peace Ordinance requires that employers involved in development projects with the city sign an agreement with a union upon request specifying procedures for determining whether the employees want to be represented by the union. The agreement also must provide that the union "will not strike the development project in relation to the organizing campaign."

After getting no response from the hotel, the union in the fall of 2005 sought community support. . . . The city of Hartford sent a letter in January 2006 to Marriott stating that the hotel was covered by the city ordinance. The city pointed out that Marriott had entered into a tax-abatement agreement with the city that required the hotel to comply with the ordinance. . . .  In an April 6, 2006, letter to Marriott, the union said it would be "commencing an organizing drive" among the hotel's employees and was "prepared to begin discussions to determine whether we might reach a 'labor peace agreement' setting ground rules for organizing." Marriott on April 18, 2006, filed a petition with NLRB seeking a representation election to determine whether the hotel's employees wanted UNITE HERE to represent them

Marriott challenged the Regional Director's denial of its petition, arguing that union demanded recognition, which justified the employer's election petition.  The Board agreed to hear the case, saying that it raised significant issues implicating neutrality and card-check agreements.  That order was viewed as the potential death knell of New Otani Hotel & Garden, 331 N.L.R.B. 1078 (2000), in which the Board concluded that informational picketing and requests for neutrality and card-checks agreements were not demands for representation.

I agree with the dissenters (Members Liebman and Walsh) in the first Hartford Marriott order--the union's conduct in this case should not be considered a demand for recognition.  The Board has long recognized the need to permit unions to be able to control in most instances when they want an election held.  By trying to penalize unions for merely seeking to inform the public and requesting ground-rules for an organizing drive, employers supporting Marriott here are trying to stack a deck already heavily tilted in their favor. However, they may also be shooting themselves in the foot in some cases. If the definition of a demand for recognition is expanded, employers could face more 8(a)(5) refusal-to-bargain charges.  When I was at the Board, I lost (badly) a case in the D.C. Circuit which turned on whether a newly merged union demanded bargaining.  The D.C. Circuit took what I viewed as an overly restrictive view of what constitutes such a demand.  It's not the same issue and those type of cases are rare, but if New Otani is overturned, cases like mine may be harder for employers to win in the future.

-JH