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Reinstatement for Worker Fired in Union Spat

(CN) - A Hyatt franchisee must rehire a hotel worker it fired for pointing out mistakes in anti-union literature, the 2nd Circuit ruled.

The dispute stems from a campaign by United Service Workers Union, Local 947, April 2012 to unionize housekeeping workers at a Hyatt Hotel in Hauppauge, N.Y., operated by Remington Lodging and Hospitality.

Opposed the effort, Remington began spreading its own information about the union, and the benefits of declining union representation, to employees.

In August, while hiring and training a separate housekeeping staff, Remington subcontracted housekeeping services to an outside agency that hired most of Remington's former housekeeping employees.

Remington canceled the subcontract in October, firing its old employees and replaced them with the new workers.

Denying a link between its actions and the union's activities, Remington said the hotel's housekeeping merely had low customer ratings.

In late December 2012, Remington distributed literature to its employees regarding their compensation.

Margaret Loiacono, a non-housekeeping Remington employee, pointed out errors in the literature to a manager, and allegedly left her work area to point out the errors to a co-worker.

Shortly thereafter, Loiacono was fired. Remington claims it terminated her because she "ignored her duties" by leaving her work area, but the National Labor Relations Board found that Remington committed an unfair labor practice by firing both Loiacono and the housekeeping workers.

A federal judge in Central Islip agreed that Remington's actions were a labor violation, but did not enter an injunction against the hotel operator.

The 2nd Circuit ruled Friday that an injunction would have been proper, but that it was too late to enter one at this stage.

"The District Court's analysis in its May order focused heavily on the harm to individual employees (both those discharged and their replacements) caused by the discharges and delayed reinstatements," Judge Barrington Parker wrote for a three-judge panel (parentheses in original). "That analysis, however, failed adequately to account for harm to unionization efforts."

When the lower court made its decision, 16 of 37 fired employees wanted their jobs back.

Parker chided the lower court for not appreciating "the extent to which time was of the essence in reinstating the fired employees."

"As other courts have recognized, delay is a significant concern because the absence of employees who support a union can quickly extinguish organizational efforts and reinforce fears within the workforce concerning the consequences of supporting a unionization campaign," he added.

Since then, the employees' circumstances have greatly changed. While eight never responded to reinstatement offers, 14 employees accepted such offers, and 15 declined to return to work for Remington.

At this point, "nothing indicates that the twenty-three non-returning employees would return if an injunction were issued," the court ruled.

Loiacono's situation differs, however, because she was not a housekeeping employee and never received a reinstatement offer.

"We conclude that the district court erred in failing to order Loiacono's immediate reinstatement, or at a minimum, order that Remington include her in its then ongoing plan to make offers of reinstatement as positions became available," the judgment concludes.

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