This National Labor Relations Board (NLRB) decision addresses unfair labor practices alleged against Hyatt Hotels Corporation, d/b/a Hyatt Regency Memphis (the Respondent), following a union organizing campaign and election victory by Highway and Local Motor Freight Employees Local Union No. 667 (the Union). The NLRB reviewed exceptions and cross-exceptions to the decision of Administrative Law Judge J. Pargen Robertson.

Administrative Law Judge's (ALJ) Findings:

The ALJ found that the Respondent engaged in numerous violations of Section 8(a)(1) of the National Labor Relations Act (the Act) during the pre-election campaign. These included:

• General Manager Cody Plott: Promising to destroy all warning notices in employees' files and establishing an "open door" policy directly to the General Manager, which the ALJ found to be an unlawful improvement in benefits designed to discourage unionization. Plott also unlawfully interrogated employees Linda Shirley and Mary Wesley about their union sentiments.
• Director of Engineering Robert Poole: Unlawfully interrogated employee Don Mathis about his union views, promised improved conditions to Randy Blaylock while arguing against the need for a union, and unlawfully threatened Scott Monson that wearing a Teamsters belt buckle would cause trouble and required him to remove a union button.
• Executive Chef Anthony Pologruto: Threatened Ruthie Myles with detrimental changes in working conditions if the Union was elected, including loss of benefits and the privilege of coming to work when she pleased. Pologruto also interrogated Myles about her union support. He threatened Mary Lott with loss of benefits and the privilege of direct access to management.
• Executive Sous Chef Reuben Criswell: Threatened employees with discharge for offenses that previously involved no disciplinary action if the Union was selected. He also made an implied promise of improved working conditions. Criswell linked a potential pay raise and supervisory favor to voting against the Union.
• Assistant Director of Housing Dannye Chapman: Threateningly told employees that voting for the Union would make it "easier to kick them out the door."
• Executive Housekeeper Bruce Nelker: Unlawfully polled employees about their union feelings in a group meeting and threatened that they could no longer deal directly with supervision after selecting the Union. Nelker also unlawfully interrogated Levy Harrison about her union feelings and implied that she might lose benefits if the Union was selected.
• Requirement to Remove Union Buttons: The Respondent unlawfully prohibited employees from wearing union buttons.

The ALJ also addressed alleged discharge violations. While the ALJ found that the Respondent’s more stringent enforcement of sign-in/sign-out rules after the election constituted union animus, he concluded that the General Counsel failed to prove that ten specific employees (Linda Shirley, Terry Seymour, Timothy Brooks, Bryant Gibbs, Phillip Valentine, Nate Gorman, James Gorman, Mozelle Payne, Andrew Ryan, and Stan Harris) would not have been discharged under the pre-election enforcement policy. Therefore, he recommended dismissal of the allegations for these ten employees.

However, the ALJ found that Levy Harrison was unlawfully discharged. He concluded that Harrison was discharged for permitting another employee to sign her out, an offense for which no employee had been disciplined or discharged before the election, despite supervisors condoning such practices. This, coupled with pre-election threats of stricter rule enforcement, indicated a discriminatory discharge.

The ALJ also found Ruthie Myles was unlawfully discharged. He concluded that the Respondent fabricated the grounds for her discharge (falsifying her time records) and that her discharge was motivated by her strong union support and her supervisor's earlier threat to curtail her flexible work schedule if the Union won. The ALJ found that the Respondent's defense was a pretext, noting inconsistencies in witness testimony and evidence of prior lax enforcement of timekeeping rules.

Regarding Section 8(a)(5) allegations, the ALJ found that the Respondent unilaterally discontinued its wage adjustment plan, changed working hours for some employees, and stopped serving breakfast to bargaining unit employees without notifying or bargaining with the Union. He found that the lax enforcement of the sign-in/sign-out rules prior to the election had become an established condition of employment, and its subsequent stringent enforcement constituted a unilateral change.

NLRB Decision and Order:

The NLRB, in its Decision and Order, affirmed the ALJ's rulings, findings, and conclusions, with modifications.

• Discharges (Section 8(a)(3) and (1)): The NLRB found merit in the General Counsel's exceptions regarding the ten employees for whom the ALJ had not found discriminatory discharges. The NLRB applied the Wright Line standard, emphasizing that once the General Counsel establishes a prima facie case that protected conduct was a motivating factor, the burden shifts to the employer to prove by a preponderance of the evidence that the same action would have occurred regardless of the protected conduct. The NLRB found the General Counsel had established a prima facie case by demonstrating a stark contrast between the lax, inconsistent pre-election enforcement of the sign-in/sign-out rules and the stringent post-election enforcement, which led to the discharge of these ten employees. The NLRB found the Respondent failed to meet its burden of proof, concluding that these discharges were unlawfully motivated.
• Threats of Loss of Benefits (Section 8(a)(1)): The NLRB reversed the ALJ’s findings that Executive Chef Pologruto and Executive Housekeeper Nelker unlawfully threatened employees with the loss of the privilege of going directly to supervision. Citing Tri-Cast, Inc., the NLRB held that such statements, made in the context of unionization, merely explicate changes that occur when a union is selected and do not constitute unlawful threats. Member Higgins dissented, arguing that these statements, made amidst extensive unfair labor practices, were not simply explanations but threats.
• Ruthie Myles' Discharge (Section 8(a)(4)): The NLRB found merit in the General Counsel's exception that Myles' discharge also violated Section 8(a)(4) in addition to Section 8(a)(3). The NLRB reasoned that Myles was a highly visible union supporter whose participation in the representation hearing and role as election day observer were significant factors in the Respondent's retaliatory actions against her. Member Cracraft agreed with the 8(a)(3) violation but did not pass on the 8(a)(4) issue.
• Unilateral Change (Section 8(a)(5)): The NLRB agreed with the ALJ that the Respondent’s unilateral discontinuation of its wage increase adjustment plan violated Section 8(a)(5). However, the NLRB deferred the specific calculation of percentages for wage and merit increases to the compliance stage. The NLRB affirmed the ALJ’s finding of an 8(a)(5) violation regarding the more stringent enforcement of timesheet rules, noting that this represented a significant departure from established practice that became an implied term and condition of employment. The NLRB also found unilateral changes in working hours and the discontinuance of serving breakfast violated Section 8(a)(5).

The NLRB ordered the Respondent to cease and desist from its unfair labor practices, reinstate the unlawfully discharged employees with backpay, expunge disciplinary records, notify employees of their rights, and restore the status quo ante by revoking the new policy of stricter rule enforcement, reinstating the wage adjustment plan, previous working hours, and the practice of serving breakfast.

Significant Cases Cited:

• Wright Line, 251 NLRB 1083 (1980): This case established the framework for analyzing mixed-motive discharge cases, requiring the General Counsel to show protected activity was a motivating factor, and shifting the burden to the employer to prove the same action would have occurred absent the protected activity.
• NLRB v. Transportation Management Corp., 462 U.S. 393 (1983): The Supreme Court affirmed the Wright Line burden-shifting framework, clarifying that the employer's burden is to persuade by a preponderance of the evidence that the same action would have occurred even without the protected conduct.
• Tri-Cast, Inc., 274 NLRB 377 (1985): This case held that statements made by employers concerning the loss of access to management or changes in employer-employee relationships due to unionization do not constitute unlawful threats but rather simply explain the consequences of selecting a union.
• Celotex Corp., 259 NLRB 1186 (1982): This decision addressed the concept of unilateral changes in terms and conditions of employment, particularly concerning increased frequency of warnings post-election, which can constitute an 8(a)(5) violation if not bargained.
• Master Slack, 230 NLRB 1054 (1977): This case established that the more stringent enforcement of work rules after a union election victory constitutes a unilateral change and a violation of Section 8(a)(5) if not bargained with the union.

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