NLRB issues first order requiring bargaining despite union election loss
By Daniel Wiessner
June 18 (Reuters) -The National Labor Relations Board has ordered a Las Vegas casino operator to recognize and bargain with a union, in the first ruling of its kind by the agency since it created a path for unions to organize workers even after losing elections.
The board in a decision issued on Monday said NP Red Rock, which owns the Red Rock Casino and two others, had engaged in "egregious and pervasive unlawful conduct" that tainted a 2019 election and warranted a bargaining order even though workers voted 627-534 against joining a union.
It was the first time the five-member board applied its 2023 decision involving building supply company Cemex Construction Materials that resurrected key elements of a policy it eliminated more than 50 years ago requiring businesses that commit labor law violations to bargain with unions without holding formal elections, one of the most reviled board rulings among business groups and Republicans in recent years.
Red Rock illegally promised certain benefits if workers rejected the union and threatened to withhold them if the union won the election, the board said.
Two days before the election, the company gave out more than 500 free steaks branded with the words "Vote No," an apparent response to workers' complaints about the quality of food they were served at a buffet, according to the decision.
"[NP Red Rock's] extensive coercive and unlawful misconduct stemmed from a carefully crafted corporate strategy intentionally designed at every step to interfere with employees’ free choice," the board said.
Lawyers for NP Red Rock and Unite Here, the union that represents its workers, did not immediately respond to requests for comment.
For decades, unions had been required to petition for and win secret ballot elections before employers had to recognize and bargain with them.
The board in Cemex said that when a union provides evidence of majority support in a workplace, such as signed authorization cards, an employer must voluntarily recognize the union or file a petition for an election. If the employer commits severe unfair labor practices, which is common in union campaigns, it can be made to bargain without a vote ever being held or after a union loses.
In NP Red Rock's case, about 60% of the 1,300 workers in the bargaining unit had signed cards authorizing the union as their bargaining representative prior to the election.
Cemex has appealed the board's ruling to the San Francisco-based 9th U.S. Circuit Court of Appeals.
The 1st Circuit in Boston is considering a cannabis company's appeal of a judge's decision that applied Cemex and required it to bargain with a union that lost an election at a retail store. The judge was ruling on the board's request for a temporary injunction pending the outcome of a related administrative case against the company.
The board and supporters of the Cemex standard have said the change was necessary to counter the prevalence of illegal union-busting tactics by many employers, and they say that nothing in federal labor law requires formal elections.
Critics of the ruling have said it deprives workers of free choice and conflicts with a 1974 U.S. Supreme Court ruling that said unions, and not employers, bear the burden of filing election petitions.
The case is NP Red Rock LLC, National Labor Relations Board, No. 28-CA-244484.
For Red Rock: David Dornak of Fisher Phillips
For the union: Eric Myers of McCracken Stemerman & Holsberry
For the NLRB general counsel: Sara Demirok and Kyler Scheid
Read more:
NLRB paves way for workers to unionize without formal elections
Unions poised to capitalize on U.S. labor board rulings that bolstered organizing
Cannabis company is first forced to bargain with union under new NLRB test
Cannabis company must bargain with union that lost election, US judge rules
Reporting by Daniel Wiessner in Albany, New York
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