Let’s Get Ready to Rumble: NLRB Rules Melees at Work are Protected

 By Sean P. Redmond
 
Just when it seems the NLRB’s activist, anti-employer decisions could not get much more outlandish, a recent case overturning a hotel’s disciplinary action against employees for participating in a melee at the workplace shows just how far out of the mainstream this Board has become. On September 30, the Board ruled (subscription-only) 2-1 against the Crowne Plaza LaGuardia, finding that the hotel’s management violated the National Labor Relations Act when they disciplined employees for participating in an assault on the hotel’s Chief Operating Officer (COO) in a public hallway. At the time, the workers were trying to deliver a petition protesting the hotel’s management decisions. Granted, three of the 13 who had actually grabbed and shoved the senior manager, and were subsequently fired, lost their case before the Board. But astonishingly the 10 additional employees that participated in the disruptive fracas — which occurred in front of hotel guests — were deemed to be protected from any disciplinary action by the hotel. 
 
The origins of this event date back to late 2008, when business for the Crowne Plaza started to decline. In response, the hotel sought to reduce staff costs, which it proposed to do by across-the-board cuts in employees’ hours. Rather than abide by the principle of “shared sacrifice,” however, the New York Hotel & Motel Trades Council, which represented the workers at the hotel, insisted that employees be laid off using reverse seniority order. The hotel apparently agreed to this request by the union (which would have put some of its own members out of work). Nevertheless, the union suspected (“perhaps mistakenly,” according to the NLRB) that the hotel was still reducing staff hours, so it organized an employee rally outside the hotel to protest the perceived, but apparently contrived, grievance.
 
During the employee rally, union managers asked 13 members to go inside the hotel to present a petition to Gary Isenberg, the hotel’s COO, which the members did, but not before punching in for their shifts so they could get paid for their effort on behalf of the union. When they went to the COO’s office, he was not in, but they soon found him in a public hallway, where they confronted him. It was during this confrontation that various members chanted and threatened to keep him from leaving, saying “you’re not going anywhere.” As he tried to leave this assault-in-progress, the union ringleader grabbed him by the shoulder while two others pushed him and grabbed him to keep him from leaving. A fourth employee touched a security guard as the guard tried to clear the area to allow the COO to leave in peace, while the rest of the mob continued to surround the beleaguered individual. 
 
After the incident was over, hotel personnel reviewed security footage and immediately suspended all 13 employees while the hotel investigated. Two days later, the hotel fired the four individuals who had physical contact with the COO and the security guard, suspended five more for three days for instigating the affray, and reprimanded the remaining four with written warnings. All of them, the hotel pointed out, were on the clock and not at their duty stations as required. The union filed an unfair labor practice (ULP) charge against the hotel for disciplining the workers, and the NLRB’s regional administrator issued a complaint against the hotel, which a judge subsequently dismissed. End of story, right? Wrong.
 
The full NLRB decided to take up the case, evidently under the belief that, because the hotel employees wanted to deliver a petition, their assault may have been protected activity. Ultimately the board ruled that the three who had actual physical contact with COO could be fired — after all, actual physical battery is hard to defend, even for the NLRB — but determined that the rest of the crowd had been wrongfully disciplined. Moreover, the Board ruled that even though the attack occurred in front of hotel guests, to whom hotels generally try to give a favorable impression so they’ll come back, that was insufficient grounds for discipline. The Board justified its decision by claiming that guests seemed able to walk past the brawl “without difficulty or evident concern,” as if innocent bystanders’ ability to sidestep a physical altercation has anything to do with the reason a hotel would discipline its employees for engaging in such unruliness.
 
Ultimately, the Board’s decision exemplifies the extent to which it is willing to convolute the real issue at hand: that employers and customers should not have to tolerate violence in the workplace. Notwithstanding the fact that ten of the 13 union members did not physically contact Isenberg, they were active accomplices, which would seem to make some sort of disciplinary action well within the hotel’s rights.   With this wrongheaded decision, the NLRB has determined that participation in violent confrontations should be given a free pass. Next time it may be more than just the occupancy rate that ends up getting hurt.