Overstreet v. NP Red Rock, LLC
| Decision Date | 20 July 2021 |
| Docket Number | 2:20-cv-02351-GMN-VCF |
| Parties | REGIONAL DIRECTOR CORNELE A. OVERSTREET, Petitioner, v. NP RED ROCK, LLC, Respondent. |
| Court | U.S. District Court — District of Nevada |
Pending before the Court is Petitioner Cornele A. Overstreet's (“Petitioner's” or “the Regional Director's”) Petition for Temporary Injunction (ECF No. 1), which he brings in his capacity as the Regional Director of the National Labor Relations Board (“NLRB”). Respondent NP Red Rock, LLC (“Red Rock”) filed a Response, (ECF No. 19), and Petitioner filed a Reply, (ECF No. 25).
Also pending before the Court is Petitioner's Motion to Try the Petition on the Basis of the Administrative Record, (ECF No. 3). Red Rock filed a Response, (ECF No. 23), and Petitioner filed a Reply, (ECF No. 24).[1]
Also pending before the Court is Red Rock's Motion for Leave to File Excess Pages, (ECF No. 17). Petitioner did not file a response.[2]
For the reasons discussed below, the Court GRANTS in part and DENIES in part the Petition, and the Court GRANTS the Motions.
This case arises from Red Rock's allegedly unlawful response to a union organizing campaign. (See Pet. Temp Inj., ECF No. 1). Red Rock is one of ten hotel-casinos that Station Casinos, LLC (“Station Casinos”) owns[3] and manages in the Las Vegas area. (Admin. Tr. Vol. 2 at 13:4-8, PX 28, ECF No. 1-2).
Years of organizing by Local Joint Executive Board of Las Vegas affiliated with UNITE HERE (“the Union”) preceded the election that forms the basis of the instant Petition. (Id. 17:4-19:16, 21:12-17); (see also Admin. Trial Tr. Dated Nov. 9, 2020 at 14:7-14, RX 1, ECF No. 20-1); (Aff. Tina Moayedi at 1, PX 48, ECF No. 1-4). But Red Rock is just one example of a Station Casinos' property to draw interest from the Union; before the Red Rock election, the Union became an employee collective bargaining representative at six Station Casinos' properties between August of 2016 and September of 2019. (Admin. Trial Tr. Dated Nov. 9, 2020 at 12:3-27:18, RX 1, ECF No. 20-1). In response to the Union's growing support, Red Rock allegedly augmented its union avoidance strategy in 2019.
As part of its strategy, on or about June 15, 2019, Red Rock began: playing “sound bytes” informing employees about unions on the televisions in employee areas; conducting regular meetings to review business initiatives, morale, and management; implementing quarterly efforts to appreciate employees, including enhanced menus and pizza parties; holding biannual town hall meetings to review projects on the property, reintroduce executives, and review expectations; implementing biannual focus groups to “re-enforce[] Leadership's credibility with the [team members]” by quickly responding to team members' concerns; increasing management visibility on the property; regularly communicating the lack of progress the Union had been able to make over three years of negotiations at other properties that had unionized while promoting the recent progress made at Red Rock; and activating “voices” to reinforce the message of Red Rock's progress. (Admin Tr. Vol. 2 at 21:19-29:22, PX 28); (Scott Nelson Email with Pre-Petition Initiatives at 1-3, PX 34, ECF No. 1-3); (Scott Nelson Email with Updated Pre-Petition Initiatives at 1-3, PX 35, ECF No. 1-3); (Mari Jackson E-mail with Pre-Petition Soundbytes at 1-51, PX 36, ECF No. 1-3.). The strategy did not slow Union support, and as of September 2019, the Union had incrementally succeeded at gaining approximately 39 union authorization cards per month on average. (Summary of Signed Authorization Cards, PX 51 AY, ECF No. 1-13). Union support swelled in October, and the Union collected more than 200 authorization cards that month. (Id.). Meanwhile, as the Union's support at Red Rock grew, Station Casinos made personnel changes to its leadership. (Decl. Jeff Welch ¶ 17, RX 4, ECF No. 20-1).
During the prior union campaigns at the other properties, Valerie Murzl (“Murzl”) served as Station Casinos' Vice President of Human Resources. (Id. ¶ 11). Murzl employed a union avoidance strategy that restricted communication between managers and employees regarding the union. (Admin. Trial Tr. Dated Nov. 9, 2020 at 23:14-19, 25:25-26:7, RX 1). In February 2019, Bob Finch (“Finch”) became the Chief Operating Officer (“COO”) of Station Casinos. (Admin. Trial Tr. Dated Dec. 11, 2020, at 37:4-6, RX 2, ECF No. 20-1). That spring, Finch expressed a desire to replace Murzl, and Station Casinos began conducting interviews for her replacement in July of 2019 while allowing Murzl to retire. (Id. at 50:2-21). In August, days before Murzl's retirement, she predicted that the Union would win majority status based upon its growing levels of support. (Valerie Murzl Email with Red Rock Election Prediction, PX 37, ECF No. 1-3) (dated August 16, 2019); (Admin. Tr. Vol. 3 at 7:3-11, PX 39, ECF No. 1-3).[4] On August 29, 2019, Station Casinos hired Phil Fortino (“Fortino”) to serve as Murzl's replacement. (Decl. Jeff Welch ¶ 17, RX 4, ECF No. 20-1). The next day, the Union began its “button-up” campaign that encouraged employees to wear buttons demonstrating their support for the Union. (Aff. Adam Christian ¶ 11, PX 38, ECF No. 1-3).
Fortino began his tenure by changing Station Casinos' union avoidance communications strategy, beginning with Red Rock. Fortino and Red Rock General Manager, Scott Nelson (“Nelson”), held mandatory meetings with managers and supervisors of employee units targeted by the Union. (Admin. Tr. Vol. 3 at 9:19-20:4, PX 39). At these meetings, Nelson introduced Fortino, and the two presented a PowerPoint about the union campaign and how they could lawfully engage team members about the union organizing effort, effectively abandoning Murzl's previous strategy of non-engagement. (Id.); (see also Admin R. Tr. Vol. 5, PX 33, ECF No. 1-3); (Phil Fortino Union Avoidance Power Point Presentation, PX 40, ECF No. 1-3). Additionally, Fortino would explain he had been hired to make significant changes at Station Casinos regarding the employee experience, including potentially introducing an on-site medical center, as well as improving employee compensation and health benefits. (See Admin. Tr. Vol. 9 at 7:10-8:19, PX 42, ECF No. 1-4). Fortino also instructed managers and supervisors to keep lists of people they believed supported the company, the Union, or remained undecided. (Admin. Tr. Vol. 3 at 27:7-28:14, PX 39); (see also Phil Fortino Union Avoidance Power Point Presentation at 13, PX 40).
While Fortino implemented Red Rock's new messaging campaign, he simultaneously developed a strategic plan of benefits to offer Station Casinos' employees. (Id. 26:20-21:6). To develop the new benefits, Fortino compared Station Casinos' current benefits with those offered by competitors, those highlighted by the Union's campaign, those offered at Union-organized properties on the Las Vegas Strip, and feedback from employee focus groups. (See Email about Phil Fortino Changes to Salaried Medical Tier STP, PX 43, ECF No. 1-4); (Phil Fortino Email Copying Health Benefits from Union Website, PX 44, ECF No. 1-4); (Phil Fortino Email with Union Contract Comparison, PX 45, ECF No. 1-4); (Admin. Tr. Vol. 3 at 31:7-34:20, PX 39). Among Fortino's consideration were benefits that would “[t]ake[] away union power and [its] major emotional draw to team members.” (Email about Phil Fortino Changes to Salaried Medical Tier STP, PX 43) (discussing a proposal to offer free HMO benefits to team members making under $40, 000.00 per year, many of whom were in positions the union targeted).
On November 19, 2019, Fortino presented the proposed strategic plan to Station Casinos' senior leadership. (See 2020 Corporate Human Resources Strategic Plan Presentation, PX 46, ECF No. 1-4); (Calendar Appointment for Strategic Plan 2020 Presentation, PX 47, ECF No. 1-4). The plan included building on-site medical centers for employees; offering some classes of employees a zero-deductible HMO plan that “more closely matches union plan;” providing free healthcare benefits to employees, their spouses, and families; providing 401(k) benefits to “help incentivize Team Members in [union-type positions] to not vote for a union” in non-union facilities; replacing unpopular time and attendance policies; implementing new training programs; and streamlining hiring for entry-level positions. (Id.).
On November 22, 2019, the Union filed a Petition for Election with the NLRB for a bargaining unit of about 1, 350 Red Rock employees. (RC Pet., PX 49, ECF No. 1-4); (Voter List, PX 50, ECF No. 1-4). By that date, the Union had successfully collected 811 union authorization cards from the bargaining unit. (See Aff. Tina Moayedi 2:9-21, PX 48, ECF No. 1-4); (Red Rock Union Authorization Cards, PX 51, ECF No. 1-5). The Board scheduled an election for December 19-20. (Stipulated Election Agreement, PX 31, ECF No. 1-2) (see also Aff. Tina Moayedi 2:9-21, PX 48, ECF No. 1-4).
On November 22 and 23, Fortino sent text messages to Finch, indicating, “RR just got a petition” and “Lots of union activity at Santa Fe today.” (Phil Fortino and Bob Finch Text Messages, PX 55, ECF No. 1-14). Finch responded, (Id.). Fortino replied, (Id.).
Red Rock began advertising the changes to employees through rollout meetings on December 10 and 11, about ten days before the election. (Admin. Trial Tr. Dated Dec. 11, 2020, at 56:13-59:1, RX 2); (Admin. Tr. Vol. 3 at 29:14-30:10, PX 39). At the meetings, Nelson explained the new benefits package to employees in detail. (Admin. R. Tr. Vol. 3 at 30:4-50:24, PX 39); (PowerPoint for the Exciting News Meetings, PX 56, ECF No. 1-14). On December 12, 2019,...
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