How regardless of dropping a number of rulings, Station retains warding off a Culinary contract

“What the law lacks is any kind of remedies or penalties with teeth that would act as an incentive for employers not to violate the law,” says a former chair of the National Labor Relations Board.(Photo: Hugh Jackson)

Station Casinos, which has fought to keep the Culinary union out of its multiple Southern Nevada neighborhood properties for over a decade—one of just a few major holdouts in the Las Vegas hospitality industry—will, again, be called to court to defend their labor practices next month.

Station, which was the third largest private employer in Nevada in 2018, has been one of Culinary’s prime organizing targets.

Despite the union’s success in several elections at Station properties, no collective bargaining agreements have been reached at any of them, and the two sides have been ensnared in legal battles. Next month, the National Labor Relations Board will hear a complaint composed of 60 consolidated allegations that Station violated federal labor law from late 2018 to early 2021. Station denies the allegations.

This isn’t the first time the union and Station have been in NLRB proceedings.

In 2012, the NLRB panel then upheld the majority of an administrative judge’s findings of over 80 separate violations, including that Station threatened employees with reprisals if they selected the union as a bargaining representative, promised benefits if they didn’t select the union, and engaged in unlawful surveillance. As a result, Station was ordered to cease and desist from those activities, reinstate two employees who were allegedly discharged due to union loyalties, and post public notice of employees’ rights. The case was reportedly among the largest unfair labor practices cases ever filed against a Nevada gaming company.

In the case scheduled to be heard next month, two employees and two unions—the Local Joint Executive Board of UNITE HERE, which represents the Culinary Union, and Local 501, which represents slot technicians—filed the initial charges against Station. Those charges were investigated by Cornele Overstreet, the regional director of the National Labor Review Board, the independent federal agency responsible for enforcing labor law, and were consolidated into a complaint. An administrative law judge will oversee the hearing.

When all else fails, delay

Culinary and national labor officials have referred to Las Vegas as a “model union city.” Nevada stands out nationally, UNLV law professor Ruben Garcia has noted, for being a right-to-work, libertarian-leaning state with a remarkably robust labor movement. Nevada has a higher union membership rate than all but one other right-to-work state, and had a rate slightly above the national average, as of 2020 data. There are around 60,000 members in the Culinary union.

As is the case nationwide, the process of unionization and reaching collective bargaining contracts can be a long and arduous one in Nevada.

Unions first must build worker support and hold union drives to confirm that the majority support unionization, via card checks. Only then, generally, can unions hold elections to certify the union as the collective bargaining representative, often with NLRB involvement. 

Once certified as the bargaining representative, the union can finally enter into contract negotiations with the employer. 

But voting the union in often is only the beginning of another long process, not the end.

There can be years between union certification and the first collective bargaining agreement. The process can also be reversed: One year after certification, employees can organize a vote to decertify the union’s representation, by amassing support via a petition and holding another election.

Wilma Liebman, former chair of the NLRB, said in an interview that companies “dead-set on getting out of unionization” fight it at each of these stages. Employers argue an election shouldn’t be held, then try to win the election, then argue that the election results are illegitimate, and then, when all else fails, seek to delay bargaining as long as possible. This can take years—and has, in the case of the Station properties.

Six of Station’s casinos voted to join the Culinary union, beginning with Boulder Station in 2016, which workers voted to decertify last fall. The others that voted for representation by Culinary are Green Valley Ranch (November 2017), Sunset Station (June 2019), Fiesta Rancho (June 2019), and Fiesta Henderson (September 2019). The Palms also voted for union representation, in 2018, but Station sold the property in May. Station has closed Fiesta Rancho and Fiesta Henderson indefinitely. 

Culinary represented workers at another property, Palace Station, too. The union originally fell short by 4 votes in the certification election, but Station settled a 2017 NLRB case that alleged election interference, and agreed to recognize the union. Culinary was the collective bargaining representative there until last  fall, when workers voted to decertify the union. Station no longer recognizes the union as the bargaining representative at Boulder or Palace Stations.

‘We are family’

The latest complaint doesn’t deal with the earlier stages of union certification and pre-election organizing, many of which have already gone through the NLRB. Instead, complaints include the later issues Liebman identified: issues with the company trying to win the election and delegitimizing results.

Three important allegations in the latest complaint include: allegations of interference in the Red Rock election, circulating a decertification petition, and using covid layoffs to strategically limit the union’s power.

At Red Rock, Station’s flagship and largest casino and also the namesake of Station’s parent company, Red Rock Resorts, Inc., employees voted against unionizing in December 2019. “Our great Team Members have spoken,” then-president Scott Nelson said at the time.

The regional NLRB director’s complaint alleges that it wasn’t a fairly held election: employees were interrogated about their union sympathies, threatened with loss of benefits, and loss of a relationship between employees and supervisors, among other allegations.

In December 2019, Red Rock served employees “Vote No! steaks” in its Team Dining Room, the complaint says. Management also allegedly handed out fliers entitled “IS UNIONIZING WORTH THE RISK???” and “BIG FAT UNION LIE.”

Most importantly, Red Rock promised and offered a slate of new benefits, called “Focus on Family,” in the weeks leading up to the election. The benefits included eliminating HMO healthcare plan deductibles, opening an on-site “Fertitta Medical Center” for employees, and increasing contributions to employees’ 401(k) accounts. The complaint alleges that some management presented the new benefits as proof that voting in the union would be unnecessary.

“WE ARE STATIONS! WE ARE FAMILY! WE ARE ALL IN THIS TOGETHER!” reads a 2020 flyer touting Stations’ new benefits.

 “Why risk it with Union promises when Respondent Red Rock’s employees already have the most important things?” Red Rock management allegedly framed the issue, according to the complaint.

The complaint alleges that these enhanced benefits were created, and released in the lead-up to the election, “to discourage employees from supporting the Union.”

Michael Britt, spokesperson for Station Casinos, sent the Current a statement that Station issued in April and declined to answer further questions. The statement says “They are mischaracterizing all the great things we have done for our Team Members as a negative because, as they claim, ‘it undermines the union.’”

The statement also pointed out that the casino paid workers through May 2020 and extended their healthcare benefits through September 2020: “Station Casinos has and always will be focused on its family – its Team Members.” 

The complaint also alleges that management played a more-than-ministerial role in Palace Station’s decertification last year, which is illegal under federal labor law.

Management at Palace Station allegedly granted increased benefits and conditions of employment to employees for circulating a decertification petition. They gave those workers employee of the month awards, cash awards prior to the election (including an allegation of a $3,500 cash award, and a $400 comp to the casino’s steakhouse), and 5 days of paid time off. 

Finally, the covid-related allegations in the complaint state that Station “engaged in a scheme to use the Coronavirus Disease” to selectively lay off, terminate, and recall employees, at all of their facilities. One allegation states that in January 2021, a supervisor at Palace Station told employees they wouldn’t be hired back if they had engaged in union activities—and the another allegation says that same thing happened at Red Rock in late September 2020, when a supervisor said they would not bring back applicants who supported the union. 

Station denies the allegations. The Station attorneys in their response to the complaints called the allegations “frivolous and overreaching,” constituting a “coordinated scheme” between the regional NLRB and union, and designed to “defame” the named managers and damage Station’s business enterprises.

Station has a duty, but not a time limit

The NLRB regional director, Overstreet, is seeking a variety of remedies in the case, including requirements that Station publicly post and announce notice of workers’ rights. The director is also pursuing bargaining orders at Red Rock, Texas Station, and Sante Fe Station, which would allow the union to bypass another election and proceed to the bargaining stage, because the allegations are so egregious that there is only a slight possibility that a fair election could be held.

Station is opposed to a bargaining order.

“Over the course of a decade, the Company has been under attack by the Culinary Union and has learned that they are willing to say and do anything in an attempt to force our Team Members into their union,” the spokesperson said. “Now, with a willing accomplice in the NLRB Regional Director, the union is attempting to strip our Team Members of their democratic right to choose whether they want union representation or not.” The NLRB Regional Director was responsible for investigating the unions’ and individuals’ charges and submitting select charges to an administrative judge to hear. 

As for the several properties where the union is already fully certified, though, potential legal remedies are limited. The union alleges that Station has been “failing and refusing” to bargain in good faith. As more and more properties are passing through initial hurdles to unionization, some of the complaints call out Station for stalling on its legal obligation, a tactic frequently deployed in this stage, as Liebman said.

For UNLV law professor Ruben Garcia, “The bottom line at most of those properties is that they have a duty to bargain with the union,” and the case will come down to whether or not employers have been fulfilling that obligation. “(Station has) exhausted their challenges to the election processes.”

Drawing out the bargaining process is, some experts say, a strategy employers use to reduce the union’s credibility, so, Liebman said, “people will become disenchanted with the union.”  

Companies will often find a strategy to avoid what “may become inevitable down the road,” Liebman said, in part to avoid paying for the union benefits in the meantime.

Station acknowledges the delay but denies that they are bargaining in bad faith.

At Fiesta Henderson, one complaint alleges, management dissuaded employees from voting for the union. Management argued that at Boulder Station, the first Station property to vote for unionization, years had passed since the election and workers “had nothing to show for it”: “no raises, no nothing.” Prolonging contract negotiations can allow a company to say that the union is not following through on its promises.

There is a running clock on a Station-run anti-union campaign website, which tracks the time “since the first negotiation day” after union certification at Boulder Station. It currently stands at 1,686 days. “Over 3½ Years and NO CONTRACT,” it says.

One year after certification, the union can be decertified, another benefit to the employer of drawing out negotiations, Garcia said. Once workers vote for decertification, the union is stripped of its status as the workers’ legal bargaining representative. (It is more difficult to decertify a union once a contract is in place because for the first three years of the contract, decertification can only be done in a one-month window.)

The NLRB cannot mandate that the employer and union sign a contract—they can only order the employer to follow the law on bargaining in good faith.

Kate Bronfenbrenner, who directs labor education research at Cornell’s School of Industrial and Labor Relations, found in a 2007 study that over half of workers were still without a contract one year after the union election victory. Between 1999-2003, Bronfenbrenner found that most organized units had no agreements one year after the election, over one third did not have an agreement after two years, and after three years, 30 percent still did not.

Station emphasizes that it can’t be compelled to sign a contract.

Station’s anti-union website says: “The company must VOLUNTARILY agree to any and all proposals.”

“Currently, there is no time limit on negotiations. So, bargaining can take weeks, months and even years, before Team Members even see a contract,” the Station website says, “if they see one at all.”

Culinary expects to see a contract. 

“The Culinary Union fully anticipates that we will achieve a collective bargaining agreement with every Station Casinos property in Las Vegas named in the National Labor Relations Board complaint,” said Bethany Khan, spokesperson for Culinary. “That is why the majority of Station Casinos workers have expressed their desire for union representation, and that is why they have courageously stood up for their rights despite Station Casinos’ anti-union conduct.”

NLRB has no ‘penalties with teeth’

The reason the process has taken so long—the reason that casinos where workers voted to unionize as early as 2016 are still without contracts—is partially the weaknesses in federal labor law, some say. The NLRB decision alone, then, might not be sufficient to end the decade-long battle between Culinary and Station. 

The law may not strongly deter companies like Station from committing labor violations. “What the law lacks is any kind of remedies or penalties with teeth that would act as an incentive for employers not to violate the law,” Liebman said. One reason some companies never reach an agreement is that there are no monetary penalties, aside from paying back what an employee would have gotten if they hadn’t been let go. 

Without the risk of incurring fines, employers might calculate that the benefit of avoiding unionization outweighs more modest costs. In a working paper from the Peterson Institute for International Economics last month, economist Anna Stansbury found that at the economic level, the National Labor Relation Act’s federal penalty regime provides little economic incentive for employers to follow the law. To a company, the cost of unionization can be higher than the cost of committing an NLRB violation and being forced to reinstate and provide back pay to employees. 

Station acknowledged the financial risk of unionization in their 2020 annual report: “Union organization efforts could cause disruptions to our casino properties and discourage patrons from visiting our properties and may cause us to incur significant costs.”

After the administrative judge in the NLRB makes a decision, it can be appealed to the five-person NLRB panel, composed of presidential appointees. In August, it will be composed of a majority of Democratic appointees.

Even under the Trump administration, the NLRB ruled on the side of the Culinary union in several cases, so the political makeup of the panel might not have a huge effect. The difference in administrations might be in enforcement rather than ruling, Kate Bronfenbrenner said in an interview.

“The Board would then work proactively to make sure that this was enforced. That would be the difference. They wouldn’t just make a decision, but they would then act proactively to ensure that the decision was enforced,” Bronfenbrenner said.

If Station flouted the Board’s orders, the NLRB could then order contempt proceedings, which they initiated in another Station case in March, regarding slot technicians, which has not yet been decided. The Board doesn’t have the authority to issue fines on its own—they need the backing of federal courts.

This all can take time and mobilization. “The data shows it doesn’t work if you’re solely relying on the law to make a contract happen. It’s not designed to do that. It’s all about the continual organizing,” Garcia said. “If you wait for the law to run its course, everyone will decide to move on.”