Updated October 18, 2021 - 7:42 pm
Station Casinos wants a federal appeals court to overturn an order forcing the company to bargain in good faith with Nevada’s most prominent union, regardless of whether the court finds the gaming giant broke federal labor laws.
The company’s arguments follow a July order by U.S. District Judge Gloria Navarro that requires Station to bargain with the Culinary union until a federal labor board makes a ruling on the dispute.
Navarro’s decision stems from a complaint filed by the prosecuting arm of the National Labor Relations Board that accuses the company of using an offer of enhanced employee benefits as a way of swaying support away from the union in the run-up to a December 2019 union election at Red Rock Resort, a vote that ultimately failed.
On Thursday, Joel Rice, an attorney representing Station’s parent company Red Rock Resorts Inc., told a three-judge panel on the 9th U.S. Circuit Court of Appeals that he does not believe that the company’s offer of enhanced benefits should be considered an unfair labor practice. The company, he said, had been discussing the benefits plans “weeks and even months” before the union filed a petition at the resort property.
But even if the court were to deem that as an unfair labor practice, it did not warrant “the extreme remedy” of a mandated bargaining order, Rice said.
“It replaces employee choice at the ballot box with judicial fiat,” he said.
Rice said that the lower court should have used other remedies such as calling for a new union election, which he said is normally the way unfair labor practice grievances have been addressed.
In her order, Navarro wrote that the company’s offer to enhance benefits “likely thwarted the union’s majority status and was so outrageous that it undermined the fairness of future elections.”
Jenevieve Frank, an attorney representing Cornele Overstreet, regional director of the National Labor Relations Board, echoed the judge’s comments.
“There won’t be the ability to truly ever test what the uncoerced desires of employees are,” Frank said.
Frank said that the company was “well aware of increasing support among employees and the likelihood of an election petition at Red Rock Resort when Station developed and implemented a plan to decimate union support with a scheme of lavish and highly desirable benefits explicitly designed to coerce employees’ free choice.”
Thursday’s hearing was the latest skirmish in the yearslong fight that has pitted one of the state’s most powerful unions against one of its most powerful companies.
The Culinary union has been trying to get union votes scheduled at Station properties for seven years. Some of those campaigns have been successful, but Station and the union have not signed a contract at any of those properties. A number of employees at Boulder Station and Palace Station in August and September signed petitions asking to leave their union representation.
In a statement, Culinary Local 226 spokeswoman Bethany Khan said that the union had always maintained that Station Casinos had interfered with workers’ right to a fair union election under federal law, and that the labor board would find the company’s tactics to be illegal.
“Station Casinos shamefully keeps trying to delay and drag things out in court rather than do the right thing, keep their word, (the company has said many times that they would respect an NLRB union election), and negotiate a contract,” she added.
‘Not a novel issue’
If upheld by the appeals court, the ruling would be a landmark decision in the lengthy battle between the two sides, said UNLV labor law professor Ruben Garcia.
“This is a long-term campaign and people have watched it for a long time. So to have this be upheld by the courts would be pretty momentous legally and in the history of the dispute between these two parties,” Garcia said.
Garcia said that the case likely won’t rise above the appeals court because it is “a really typical case” of allegations of an employer increasing benefits during a campaign to dissuade employees from unionizing.
“It’s not a novel issue,” he said.
The board’s decision to seek the injunction against Station that Navarro granted, however, is a signal of potential change happening in the federal labor law sphere. Since the Biden administration came in at the beginning of the year, the board has been more aggressive, Garcia said.
“The previous administration, and the administrations before, were less willing to seek the injunction. The board is being very proactive in these six to eight months,” he said.
Both sides entrenched
Navarro’s decision forces Station to bargain with the union while the National Labor Relations Board moves forward with its own case against the company in a separate process. One potential outcome from the board could be to issue a ruling similar to Navarro’s order, all but cementing the mandated bargaining.
Whatever the the board eventually decides on the case will likely be appealed as both sides seem entrenched in the fight, said Bill Werner, an associate professor of hospitality at UNLV with a focus on labor relations.
“When a company decides that the best course of action is to fight the union every step of the way, that strategy only succeeds when the union gives up and goes away. And that’s not gonna happen here. The Culinary union is not going to give up on Stations, that’s one thing we know for sure,” he said.
The panel took the case under submission, and Garcia said he thinks there could be a decision by the end of the year.
But no matter the outcome in this case, the long-running fight between Station Casinos and the Culinary union is far from over.