Hotel Did Not Need to Bargain Over Puffier Pillows, says NLRB…

By Chad M. Horton - Shawe Rosenthal LLP

June 7, 2022

In today’s episode of “They Really Made a Federal Case Out of That?” the National Labor Relations Board (the “Board”) rejected a union’s claim that a hotel employer was obligated to bargain its decision, or the effects of its decision, to purchase and use fluffier king size pillows in its hotel rooms. (Your tax dollars at work, my friends!)

The Jewel is a 15-story hotel near Rockefeller Center in Manhattan. In September 2019, hotel front desk, engineering, and housekeeping employees voted to unionize. Two months later, the hotel manager notified housekeepers that the hotel would be purchasing new king-size pillowcases for use at the hotel. When the new pillows arrived, the housekeepers discovered that they were “puffier” than the existing king-size pillows. Consequently, the new king-size pillows were more difficult to fit into the existing king-size pillows. (No judgment here, I can barely fold a fitted sheet.)

How did the Union handle this rather mundane inconvenience? You have undoubtedly surmised by now that if its response was rational, you probably would not be reading this blog. The Union, rather than requesting to bargain or giving the hotel manager time to make good on his assurances that he would look into new pillowcases, filed an unfair labor practice charge with the NLRB.

The case went to hearing before an administrative law judge (ALJ). Reasoning that the decision to purchase and use new king-size pillows would have only an “indirect and attenuated impact” on employee terms and conditions of employment (that’s putting it mildly), the ALJ held that the hotel was not obligated to bargain with the union concerning the decision to purchase and use the new “puffier” pillows.  The ALJ did find, however, that the new pillows and the undersized pillowcases resulted in work that was more onerous and time consuming, and these effects were amenable to effects bargaining. Thus, the ALJ found that the hotel violated Section 8(a)(5) of the National Labor Relations Act by failing to notify and bargain with the union over the effects of the new, larger king-size pillows. It should be a surprise to absolutely no one that the hotel appealed that decision to the Board.

In 11 West 51 Realty, the Board reversed the ALJ and dismissed the allegation that the hotel broke the law by failing to bargain the effects of the puffier pillows – the Board also agreed that the hotel was not obligated to bargain over the decision to purchase and use the new pillows. The Board reasoned that the hotel could not have reasonably anticipated the problems caused by the new pillows before they were purchased and put into use. Thus, where there was no obligation to bargain the decision, and no expectation that there would be any effects from that decision, the hotel was not required to engage in effects-bargaining over the change in pillows.

We can rest easy (ha!) that sanity prevailed in this case.

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