Refusal to Bargain over Proposed Material Changes to Workload Violates NLRA

Takeaway: Employers considering actions that could result in material, substantial, significant, and reasonably foreseeable changes to terms and conditions of employment that are subject to collective bargaining should take seriously their obligation to notify the representative union and to bargain in good faith if the union wishes to bargain. To do otherwise invites an unfair labor practice finding.

A hotel company’s failure to provide a union with requested information necessary for meaningful bargaining over proposed material changes to employees’ workloads violated the National Labor Relations Act, the U.S. Court of Appeals for the District of Columbia Circuit ruled.

A dispute arose between the hotel and the union representing its housekeepers in 2018, when the employer substantially renovated the hotel. As part of the renovation, the employer replaced bathtubs in many hotel guest rooms with walk-in, glass-walled showers; added sofa beds to many rooms; and replaced all pillows with new heavier ones. As a result of these changes, the renovated rooms required cleaning duties that differed from the work performed in the unrenovated rooms, according to the housekeeping staff.

Two days after the renovations began, the union sent an information request to the company asking for a description of the construction work to be performed, the anticipated start and completion dates, and whether there would be any change in work requirements for union-represented employees. The hotel gave only vague answers. In response to the union’s third request for information, the hotel said that approximately 300 showers would be renovated and that the staff was expected to clean the glass shower doors using various cleaning products and tools that would be provided. The company said it did not believe that cleaning rooms with walk-in showers would take more time than cleaning rooms with bathtubs.

Once the renovations were largely complete, the hotel unilaterally required the housekeepers to meet the same room cleaning quotas that were in place before the renovations—17 rooms per eight-hour shift, with a few exceptions depending on the types of rooms and how far housekeepers had to travel within the hotel to clean them. As before, housekeepers exceeding the quota received a bonus of $4.95 per extra room cleaned.

Several housekeepers complained to the employer that it was unfair they had to clean 17 rooms with glass-walled showers. They said the glass-walled showers were harder to clean, the new sofa beds required changing additional bed linens and folding mattresses back into the sofas, and the number and size of the new heavier pillows added to their workload, making it harder to meet their cleaning quota.

The company responded by instructing the housekeepers to sign and date a document reminding them of their room cleaning quota and notifying them that failure to comply could result in discipline, including termination.

A group of housekeepers met with the union and the company one month later and expressed concerns regarding their changed work duties. The company responded that it would take time to get used to the changes and that the housekeepers would receive training and new tools. There is no evidence that any training was provided.

The union filed an unfair labor practice charge with the National Labor Relations Board, challenging the unilateral actions taken by the company. The board found that the company had committed unfair labor practices by failing to provide the union with requested information relevant to bargaining, unilaterally changing housekeepers’ duties when it increased the work required per room but maintaining the same room cleaning quota, and threatening housekeepers with discipline if they failed to comply with the increased workload requirements. The board ordered the company to rescind the unlawful changes to the working conditions as far as practicable and to make the housekeepers whole for any loss of earnings from the company’s unlawful conduct.

The company petitioned the court for review, claiming that decisions such as whether to renovate do not require bargaining with a union. The company argued for a distinction between a decision to change housekeepers’ workloads by keeping the pre-renovation quota despite an increase in work required per room and an effect of the permissible renovations that resulted in a higher workload when the housekeepers’ room quota remained unchanged. The company argued that this distinction matters “because decision bargaining would require that the company notify and bargain with the union over any decision to materially change housekeepers’ workload, whereas effects bargaining requires only that the company notify the union of the permissible renovations and bargain upon the union’s request over the effects.”

On appeal, the D.C. Circuit found “the distinction between decision and effect is of no real consequence here” because “even in an effects-bargaining case, an employer must still provide the union with pre-implementation notice and an opportunity to bargain over any material changes to working conditions.”

The court said the company “had an obligation to give the union at least a meaningful opportunity to bargain regardless of whether the changes to the housekeeper’s duties were better thought of as a separate decision regarding the conditions of employment or as merely the effect of a business decision about what kinds of rooms to offer hotel customers.”

The court found substantial evidence supporting the board’s determination that the company did not provide the union with the requested information needed to meaningfully bargain on behalf of unit employees.

Further, the court noted that before an employer changes a condition of employment, it must first “notify the union of the proposed change, offer to bargain and bargain with the union in good faith concerning the change.” In this case, the court found substantial evidence supporting the board’s findings that “after permissibly deciding on its own to complete major renovations to its hotel, the company then violated its duty to bargain by unilaterally increasing housekeepers’ workload while retaining the same room cleaning quota.” 

“Ample evidence supports the board’s findings that the changes were material, substantial and significant, as well as reasonably foreseeable,” the court held.

Finally, the court found substantial evidence supporting the board’s determination that the company violated the National Labor Relations Act (NLRA) by threatening housekeepers with discipline if they failed to meet their original quota after the company unilaterally increased their work duties per room.

Adding that the board’s remedy calling for rescission of the unlawful changes to the housekeepers’ duties as far as practicable and relief for lost bonuses was within its discretion, the court denied the company’s petition for review.

CP Anchorage Hotel 2 LLC v. National Labor Relations Board, D.C. Cir., No. 23-1029 (April 9, 2024).

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.