You asked the following questions related to the union organizing efforts at the Hartford Marriott Hotel: (1) what are the National Labor Relations Board (NLRB) rules for union organizing and formation; (2) what is the union's position on organizing the Hartford Marriott; (3) what is the position of the hotel's owner, the Waterford Group; (4) what is the Hartford ordinance requiring a labor peace agreement and does it apply to this situation; and (5) what can the state do about the standoff between the hotel and the union?

SUMMARY

Under NLRB rules and the National Labor Relations Act (NLRA) a union is formed at a workplace when a majority of the workers vote in a secret ballot election to create the union. The NLRB oversees such elections and certifies the results. The NLRA also allows unions to be formed by voluntary methods (without a secret ballot). This means both sides voluntarily agree to the process. The most common voluntary process is a “card check” election where a majority of employees sign cards indicating they want to form a union, which the employer agrees to recognize.

In the Hartford Marriott case, the employer, the Waterford Group, requested an NLRB-supervised, secret-ballot election. The unions want Waterford to negotiate a labor peace agreement that provides a method for forming a union at the hotel. Such an agreement is required under a

Hartford city ordinance that applies to businesses that receive city financial assistance. The union believes that organizing a union will be easier under a peace agreement.

Waterford asserts that the city ordinance does not apply to the ongoing operations of the hotel; it only applied to the hotel's construction. The city and the union argue that law applies to any facility receiving city assistance, and the Marriott has a 15-year tax abatement deal worth up to $ 30 million with the city. The city has taken Waterford to court over the ordinance's interpretation.

The state has a very limited role in this situation even though it selected Waterford as the developer and enacted legislation including the hotel as part of the Adriaen's Landing project (which includes the state-owned Connecticut Convention Center). Private sector labor issues, including union organizing, are the purview of the NLRA, which preempts formal state action in this area.

NATIONAL LABOR RELATIONS ACT (NLRA)

Overview

The NLRA gives most private sector employees the right to (1) organize the union of their choice, (2) collectively bargain, and (3) strike. The law lays out the rights of employees and employers in labor relations. It sets the procedures that must be followed for an employee vote on whether to form a union and defines unfair labor practices by either union organizers or employers.

The NLRA gives employers the right to oppose union formation, but it also details their unfair labor practices (such as threatening retaliation against an employee for supporting a union), which, upon a complaint, can result in the NLRB ordering a new election. The law also details employees' unfair labor practices (such as threatening or coercing employees to support a union) and when strikes are illegal (such as when the union agrees in its contract not to strike).

Elections

An election on whether a union will be formally recognized as a group of employees' sole representative takes place when the NLRB determines there is a sufficient question of representation. This happens when a union seeking to organize a workplace files a petition with the NLRB asking to be recognized. On some occasions, employers file the petition if the union has asked the employer to recognize it.

The NLRB can, after a hearing, order an election including setting the date. It supervises the election, attempting to ensure neither side commits an unfair labor practice, and certifies the results.

The NLRB acts on these petitions at the regional level. Decisions made by the regional office can be appealed to the national board in Washington.

For more information see the NLRB web page: www. nlrb. gov/nlrb/home/default. asp

CARD CHECK UNIONIZATION

The NLRA also allows unions to be formed by voluntary methods. This means the two sides agree to the method. One is a “card check” election where a majority of employees sign cards indicating they want to form a union and the employer agrees to recognize this. Card check is not formally recognized in statute, but in practice it is one of the most common voluntary methods.

In recent years, more unions are seeking card-check agreements because they believe the NLRA election process is too favorable to employers whose anti-union efforts have grown more sophisticated over the years. In a card-check election, at least 51% of the eligible employees must sign cards saying they favor forming a union. Usually the agreement calls for a third party, such as a labor arbitrator, to validate the cards before the employer will recognize the union. Union organizers find this method easier and shorter than a secret ballot election. Elections are more prone to allegations of unfair labor practices from each side. These often lead to filing complaints with the NLRB where their ultimate resolution can be time consuming.

Employers sometimes agree to the card-check process to avoid a lengthy and disruptive union organization drive. For example, United Parcel Service announced three months ago it agreed to allow the International Brotherhood of Teamsters (IBT) to seek card-check union recognition at a UPS freight division facility. UPS Freight, formerly Overnite Transportation Co. , was acquired by UPS in 2005.

UPS indicated it agreed to the card-check method as part of a neutrality pact with IBT because its business is growing quickly in a highly competitive market and it did not want the union drive to be a distraction. The Teamsters had been in a 10-year-long effort to unionize Overnite, which included a lengthy strike that ended in 2002. The IBT already represents more than 200,000 UPS employees.

HARTFORD ORDINANCE

Part of the city's living wage ordinance calls for the project manager of any development project that receives city financial assistance to pay a living wage and

“sign a written agreement with [a] labor organization seeking to represent employees at the development project which agreement provides a procedure for determining employee preference on the subject of whether to be represented by a labor organization for collective bargaining . . . ”

The law applies to any development project receiving at least $ 100,000 in city funds, loans, tax abatements, tax incremental financing, state or federal money funneled through the city, pension fund money, or municipal bond proceeds (Hartford Code §§ 2-761 to 2-774). The city granted the Marriott Hotel project a 15-year property tax abatement deal worth between $ 15 million and $ 30 million. The mayor has threatened to revoke that agreement if Waterford does not agree to the labor peace agreement called for in the ordinance.

Waterford argues that the labor peace agreement provision applies only to the construction phase of the project, which is completed. Waterford also argues that the NLRA preempts the city ordinance. The city asserts that the law applies not only to the construction phase but lasts as long as the financial assistance.

The ordinance calls for the city to include a clause in all contracts, loans, tax abatement agreements, or other documents that requires the project manager to comply with the terms of the law including the labor peace agreement.

The city has taken Waterford to Superior Court over the matter. At this point, lawyers are preparing legal motions and other filings. No decision is likely for at least a few months.

Earlier this year there was concern that the state law creating the Adriaen's Landing project, which includes the hotel, preempts most Hartford ordinances. The Attorney General's Office issued an opinion in April saying the state law did not preempt local law regarding the operation of the hotel thus the Marriott had to abide by the living wage law.

WATERFORD REQUEST FOR NLRB ELECTION

In an unusual move, the Waterford Group filed a petition with the NLRB requesting the board to order an election on unionization at the Marriott. The NLRB's regional office in Hartford considered the request and dismissed it because they did not find sufficient evidence that UNITE Here!, the union named in the petition, was formally seeking recognition.

John Cotter, the assistant regional director of the Hartford NLRB office, said the petition was “novel” in that although there was no evidence that the union asked to be recognized, the employer asserted that the actions of UNITE Here! were tantamount to seeking recognition.

Waterford disagreed with the regional office's decision and asked the NLRB to review the regional decision. On August 4, the NLRB voted 3-2 in favor of reviewing the regional decision. In its review, the national board, Cotter said, has three options:

1. substantiate the regional decision,

2. overturn the regional decision and rule the union's behavior warrants an election, or

3. order the regional office to hold a full hearing on the matter and issue another ruling.

It is not clear when the NLRB will issue its decision.

JM: tjo