Flamingo Hilton-Laughlin v. National Labor Relations Board

review, III. argues petition In NorAm for the Commission that it was mistake sup- has failed to the Commission Because arguments separately. Ten- deal with these market response NorAm’s ply a reasoned told, contrary system, we is nessee’s rate are objection, petition for review center much because a No. not so Order for fur- ease is remanded granted, and the system-wide cost of service inconsistent opinion. consistent with this proceedings ther mandatory unbundling policy, but with the production area because combination has an

costs market area costs adverse development of market centers.

effect on it, why a puts now reason “[t]he

As NorAm

system-wide design service rate cost of longer just

cost is no reason- allocation No. 636 is

able for Tennessee Order HILTON-LAUGHLIN, potential is a market center on there FLAMINGO Petitioner, Perryville.” Ac- system Tennessee NorAm, cording to when the Commission argument, its market center disregarded LABOR RELATIONS NATIONAL objec- message the basic of NorAm’s missed BOARD, Respondent, tion Tennessee’s rate structure. “If mar- [NorAm’s] considered Commission America, United Steelworkers argument, the Commission would ket center CLC, AFL-CIO Intervenor. have found substantial evidence record No. 97-1467. burden, showing supporting [NorAm’s] existing system-wide rate that the Tennessee Appeals, Court of United States design cost mechanisms were allocation District of Columbia Circuit. sum, with Order No. 636.” inconsistent May Argued re- NorAm contends that the Commission’s directly fusal with its market center to deal July 31, 1998. Decided argument every part “undermined po- [NorAm’s] Commission’s consideration of

sition,” “prohibition on rate because the development

structures that inhibit ‘unbundling’ of requires

market centers center

capacity upstream of a market from a market cen- capacity downstream of

ter.”

Quite apart from the issue of whether ar- have considered these

Commission should separately,

guments it is clear NorAm objecting to rate structure Tennessee’s

except impairs development insofar as it Perryville. places like

of market centers argument depends

Because NorAm’s entire system on mar-

on the Tennessee’s effect centers,

ket we have concluded adequately re-

that the Commission did not

spond point, what to this we need decide

effect, mandatory unbundling poli- any, if

cy are on a has on rate structures that based

system-wide of service. cost

Joseph argued the cause for E. Herman Hotvedt entered petitioner. Richard C. appearance. two of its unfair labor Attorney, its Gissel Englehart, National Robert J. Board, deny re- findings. nonetheless argued the cause for We Relations Labor Sher, grant enforcement of Linda Associate Gen- view and respondent. Counsel, remaining unfair respect to Armstrong, Deputy order with eral Aileen A. Counsel, practices included therein. and Frederick C. Associate General Havard, Attorney, National Labor Relations

Board, were on brief. I. Milasich, argued Rudolph L. Jr. cause January began orga- an In the Union 1993 for the intervenor. hotel and casi- nizing campaign Flamingo’s no, which, 2,000 employees, is with more than HENDERSON, and ROGERS Before: gaming establishments largest of several GARLAND, Judges. Circuit Flamingo hired a la- Laughlin, Nevada. a consulting relations firm and conducted bor by Opinion for the court filed Circuit counter-campaign. In March 1993 vigorous Judge KAREN LeCRAFT HENDERSON. petition filed to be certified the Union a Judge concurring by Separate opinion filed representative compris- unit of a ROGERS. part-time employees ing full-time and “[a]ll Housekeeping/Custodi- departments HENDERSON, KAREN LeCRAFT Slots, al, Food/Beverage, Room Hotel Coin Judge: Circuit Desk, Valet, Services/Bellmen, and Front Hilton-Laughlin Flamingo Petitioner Cage.” 4. 1993 Appendix Joint On June (Flamingo), subsidiary Gaming of Hilton and Direction the NLRB issued “Decision Corp., operates resort hotel and casino Election,” which excluded slot machine July Laughlin, Nevada. On 1997 the employees proposed room from the and coin (NLRB, National Relations Board Labor bargaining unit and scheduled an election Board) which issued a Gissel order1 directed 1,000 remaining among roughly unit em- Flamingo bargain with the United Steel July ployees During the cam- for 6. union (Union) America, CLC, AFL-CIO workers paign and the Union had solicited obtained representative of exclusive majority union cards from a authorization Flamingo employees, on two units of based employees unit and of the excluded hotel Flamingo findings engaged nu July employees. coin room slot and practices during the Un merous unfair labor election, however, employees the hotel unit campaign. organization ion’s unsuccessful rejected representation by union vote Flamingo Hilton-Laughlin, 324 N.L.R.B. 389. On 1993 the Union October (1997). Flamingo petitions for No. 14 review practice charge filed an unfair labor with the grounds on the the Board’s decision result, and, 25,1994 February as a on (1) adequately justify failed regional acting director filed order; (2) of a issuance complaint hearing alleging and notice by some of the unfair labor practices. seventy more than by unsupported the Board are substantial (3) 67-day hearing A was denied its due conducted over year process right April course of one and on 1996 an neutral decisionmaker. (ALJ) judge a de- cross-application filed a administrative law issued NLRB has finding Flamingo For cision had committed more enforcement of its order. the reasons below, forty charged prac- grant than to the extent set out we 8(a)(1) tices, deny part petition for review and violation of section (Act), Act application the NLRB’s for enforcement of the National Labor Relations (D.C.Cir.1989), requiring cert. is one A Gissel order denied, bargain remedy with a union and is issued "to S.Ct. U.S. 8(a) (1990); of section of the National Labor violations Packing L.Ed.2d 614 Co., see NLRB Gissel finds, balance, Act ... if the Board Relations U.S. S.Ct. 23 L.Ed.2d 547 past practices make a fair that the effects of those (1969). Stores, Amazing unlikely.” 614-15, 158(a)(1) (3), ordering S.Ct. §§ U.S.C. (1969)),2 as the bargain 'with the Union L.Ed.2d 547 based Flamingo to unit designated both the representative of ‘the number of [that] “considerations include up employ- violation, unit made of slot separate and a directly employees affected Flamingo itself violat- ALJ found unit, ees. The the exteht of dissemina- the size of benefits providing ed the Act various force, identity among work and the tion peri- during preelection employees unit prac- perpetrator of the unfair labor od, cov- improved health insurance including tice,”’ Mfg., (quoting FJN id. wages, responsive erage, more increased (1991)). Specifically, he N.L.R.B. higher gratuities for grievance procedure, determined: seniority-based baggage handlers directly “the number of assignment policy cocktail scheduling and by was practices affected the unfair labor Flamingo further The ALJ servers. in that health insurance “[t]he extensive” had, unlawfully in- period, during the same changes were shown affect a substantial to employment application new stituted employees, of the the same was percentage weeding ap- at out screening aimed made, hourly pay and true of increases In addition plicants union connections. no complaint procedure had new resolution violations, the found that Flamingo’s ALJ employee eligibility”; about limit at all Flamingo supervisors had en- individual (2) (1) large size unit did not including gaged unlawful acts in various (with against bargaining weigh at complaints from soliciting (2) them) and violations both units blanketed promises to implied least resolve Union, present that Culinary prominent not allow the notion to be did promoting the (3) union, Union, simply of gaming industry many over the members the units were conduct”; on questioning employees about their views not aware of (4) unionization, distributing but- anti-Union (3) largely fúst two factors are “[t]hese (5) tons, discouraging display pro-Union factor, because dis- embodied third (6) buttons, warning employees that condi- prac- throughout semination conduct employment wages, such insur- tions of both in- tically the entire work force was (including free perquisites ance and benefits by'the employer” carried tended and out uniforms) if and would worsen parking, food through wage such and benefit “items (7) election, suggesting the Union won why tangible employ- on effect increases pro-Union employees would be “black- that attracted to in the first the Union ees (non-union) casinos among listed” the other of blacklist- place, inhibiting and the threat (8) meetings conducting the area and by sprung on the work force ing as entire the election which eve of just universally distributed memorandum Sherlock, president, made an new William election”; and before em- presentation and asked antiUnion video (4) significance question, great “of ployees chance for “[a] major amount of perpetrator no [employees] in hand with work hand human resources [director conduct interfere,” slip op. party third is also “[i]t Kosinski himself’ John] 47. key perpe- that was a influential Sherlock that unfair labor concluded ALJ trator.” “category II” practices found made this a he “On 62-63. The also stated: is, Id. at ALJ case, one of “the less extraor- Gissel that un- separate ‘pervasiveness’ from matter dinary by pervasive prac- marked less cases conduct, issue is fair labor Gissel ten- tices nonetheless still have the which by special affected considerations dency majority strength and also undermine by applicant screening also devised processes,’” Flamingo, as the impede the election Kosinski,” which “tainted the slip op. NLRB v. Pack- (quoting at 62 " Gissel, "category case ‘outra- 89 S.Ct. 2. A I” Gissel involves practices.” geous’ ‘pervasive’ erasing practices .in screening past a manner employment units effects by the use reconstructed,” insuring a fair rerun election asserting that that cannot be that slight of traditional remedies is consequence of this “must bear the expressed in fa- employee sentiment once conduct, 'probabilities both as to unknown protected be better vor of the Union would yielding slightly biased work force Avecor, by a order. detriment, possibility Union’s (quoting Francis Fed’n Nurs- St. presumption conduct devious invites & Health es Finally, readily recur.” Id. at 63. it could Professionals (D.C.Cir.1984)).3 844, 854-55 We possibility of eras- “conclude[d] finding emphasized that have also Respondent’s unfair effects of embedded explana- supported must be a reasoned that, balance, slight so reviewing court to will enable the tion that for each unit.” order warranted (1) opinion determine from Board’s gave it to the em- due consideration .29,' July In its 1997 decision the are, -rights, ployees’ section 7 which except it affirmed the ALJ reversed all, purposes one of the fundamental plea that Sherlock’s last minute Act, pur- concluded practice; “chance” was an unfair rights of the poses must em- override .the (2) rejected “discounting] the ef- the ALJ’s bargaining repre- ployees to choose their threats, type fects of one-on-one solici- [the] (3) remedies, less sentatives (3) tation, interrogation” or declined employees’ rights, are not destructive “rely judge’s analysis to the extent on the adequate. Peoples Sys., [Inc. v. Gas imposed negative á that he connotation on (D.C.Cir.1980) NLRB, ]. 629 F.2d presentations.” Flamingo’s lawful video Id. Steel, Welding & v. also Somerset Inc. See at 1-2. (D.C.Cir.1993) NLRB, 987 F.2d bargaining (declining to enforce order II. justification therefor where “no reasoned Flamingo argues strenuously that the order”). appearfed] in the Board’s justify ordering bargaining as Board failed to (footnote added). 82 F.3d at 1078 In this remedy. agree. a We a neither ALJ nor the Board made case “ finding that the circumstances sustainable ... bargaining ‘[A] order is existing warranted the “extreme reme- then remedy” applied that be with “extreme must ” dy” ordered. Skyline commensurate care.’ Distribs. v. (D.C.Cir.1996) NLRB, 99 F.3d issuing “underlying rationale” Avecor, NLRB, (quoting Inc. v. 931 F.2d bargaining Gissel “that the em denied, (D.C.Cir.1991), cert. 502 U.S. gauged by ployees’ wishes are better an old (1992)) 116 L.Ed.2d 812 S.Ct. majority by a election.” card than new (alteration Amphi Skyline). Charlotte Amphitheater Corp,, at Charlotte NLRB, Corp. v. theater Nevertheless, “[circumstances 1078. (D.C.Cir.1996), again explained we the cir may change during ... the interval between category cumstances that warrant II employer’s occurrence of the order: practices disposition and the Board’s case],” insisted, danger there is an “obvious have and we continue [W]e insist, bargaining order we enforce a cate- intended vindicate “[b]efore will order, rights past infringe employees will gory II we must find that substan- rights findings,” upon the of the current ones decide tial evidence supports, .three they represented by among possibility them the that the whether wish be findings required at ALJ made both of these find- 3. two are that F.2d 934. The The other 59, 62-63, Union, time, op. majori- ings, slip we "the at some must have had bargaining evidentiary support ty their now support unit” and need not evaluate within the given employer's practices our of the like- must have remand reconsideration light post- tendency majority strength a fair lihood of rerun election in undermine Avecor, process.” impede election events. the election order); Avecor, “Therefore, repeatedly mitigate for” Gissel have the need we union.” (“[W]e Inc., appro- 931 F.2d at 937 hold that before the Board to determine instructed order, issuing category bargaining II priateness order in of Gissel carefully employee light existing at Board of the circumstances must (find turnover.”); Somerset, Inc., (citing Avecor 987 F.2d at 780 it is entered.” Id. time 936-37; Pedro’s, NLRB, justification adequate no for Gissel order 931 F.2d at (D.C.Cir.1981); adequately did not con Peoples because “the Board F.2d 18; changes employee 45-46 n. Sys., 629 F.2d at sider Gas Co., Company Ship Shape 474 turnover since the time NLRB v. Maintenance NLRB, (D.C.Cir.1972)). election”); Amazing Stores Yet both the v. F.2d (D.C.Cir.1989) (“[W]here F.2d ignored and the ALJ substantial and Board operation practices especially pervasive undisputed changes in hotel’s issue are nature, permanent in needs to personnel years since the election or respecting make more careful determinations they and focused instead on circumstances as turnover.”), subsequent early the effect of were in denied, 1029, 110 S.Ct. t. cer ALJ, discussion, remedy In his con (1990); Peoples 108 L.Ed.2d 614 Gas flatly trary precedent, announced: to our Sys., Inc. v. 45-46 n. 18 order, considering “When (D.C.Cir.1980) (“This already court has held compels a focus circumstances exist law turnover, ‘subsequent one ing at the time unfair labor event,’ deciding wheth must considered spring Thus committed. late a new or a order is the er focus, conduct Re when diverse unlawful (citing Ship Shape proper remedy.”) Mainte spondent enduring impact Skyline supra); nance Distribs. Flamingo, slip op. at 64. occurred.” Consis (D.C.Cir.1996) pronouncement, the ALJ tently rest (“[T]his (Henderson, J., concurring) court remedy ed of on his evaluation of the choice to de ‘repeatedly has instructed the Board alleged practices and their the bar appropriateness termine the of a Gissel during pre-election period. the See effects gaining light in of the circumstances order expressly In doing id. at 62-63. so he dis existing take time it is entered’ to the three the' court has found counted factors of, alia, time, passage'of the account' inter passage of inquiry: crucial to a Gissel time manage employee turnover and sensitized of unit practices, since the turnover members omitted).4 ment.”) (citations change management. See Charlotte (re time, First, Corp., passage of the Amphitheater regarding F.3d at 1080 82 always span that “a of time is manding accept to Board with direction ALJ observed passage present unfair labor from “that the of between lingering as to change might arguably have effects time or a in circumstances 379, (7th 1988) (passage Cir. of impor 847 F.2d 383 circuits have also stressed Other See, time, e.g., manage one or more these factors. employee change tance of of turnover and of Francisco, Harper NLRB, HarperCollins 1537, a Div. ment); San Piggly Wiggly v. F.2d 705 Publishers, NLRB, Inc. v. 79 F.3d Collins 1983) (11th (changes’up n. 9 to time of 1543 Cir. Cir.1996) ("events subsequent to the 1332 Indus., hearing). v. Armcor 535 F.2d NLRB violations, employer's passage such as conditions"). (3d Cir.1976) ("present But 246 employees”); substantial turnover of time and the Paris, 1427, 1448 NLRB 929 F.2d v. Bakers of Agric. Mfg. F.3d 398 NLRB v. Cell (9th Cir.1991) (passage of time and (8th time, 1994) (passage employee turn Cir. adjudication of to the turnover are "irrelevant management’s "voluntary over and cooperation”) statements of proceedings”); v. Wilhow enforcement NLRB (internal omitted); citation ("In (10th Cir.1981) Corp., 666 F.2d Foods, (4th 128-29 Cir. v. So-Lo Towing, NLRB v. Jamaica turnover); 1992) (employee NLRB v. LaVerdiere's (2nd 1980), ‘employee stated that Cir. the court (1st Cir.1991) Enters., 933 F.2d 1054-55 may ma lapse of time ... become turnover and time); Corp. (passage Petrochemicals v. Texas that is jor factors cases.' Unlike the case in close Cir.1991) NLRB, (5th (pas cited, 8(a)(3) § violations that Wilhow time); Plating, sage M.P.C. (6th guilty type case 1990) make for of close do not (passage of time F.2d Cir. Circuit.”). turnover); contemplated by Impact the Second Indus. noted light” post-election two circumstances make a second election unfeasible proceedings although point ALJ, namely when a contested and, bargaining proposed” without during the employee screening “began pre- decisions, contrary court reference ob many period,” it “continued accurately all “[t]he served too July 1993 election” months after passage ‘regrettable’ has-termed such of time executives,” “corporate Hilton ‘unavoidable,’ but sufficient and not basis referred, “were involved whom the deny bargaining Flamingo, slip order.” Respondent’s campaign against unlawful Prods., op. (citing Quality Aluminum employed and are still the Union (1986), enforced, N.L.R.B. Anderson, including Hil- Respondent,” Jim Products, Inc., Quality NLRB v. Aluminum president of corporate vice ton’s senior (6th Cir.), defied, cert. administration, personnel who relations (1987)). 98 L.Ed.2d S.Ct. played major ... record role shows Because, view, very “[t]he nature orchestrating Respondent’s unlawful require litigation would extensive time against and whose campaign Union” complexity,” because of its the ALJ stated he employment undercut- “continued factor from not believe the time events “d[id] Respondent’s management turnover ting the present imposition should affect imposition of a defense to Flamingo, op. slip order.” slip op. 1-2. order here.” specific findings regarding 63. He made no justify passage conclusionary comments dissipating effect vel non of the These do practices. of time on category bargain- II enforcement summarily, The ALJ also dismissed Flamin ing order. go’s person arguments based on turnover of Again invoking authority nel. Board’s First, pointed only the ALJ decisions, judicial ignoring he stated: (with detail) in of instances little handful “The Board is also unconvinced that ‘man screening process might in which the have validity of agement turnover’ affects employment fluenced decisions. See Flam (citing Id. at 64 order.” Action Further, any slip op. at 24-26. ingo, effect Stores, (1990)).5 Auto 298 N.L.R.B. Re might have had on the unit’s ALJ, members, garding unit while ac may composition dissipated by well have knowledging turnover had reached “50 given Flamingo’s time .the Board’s decision 1995,” April percent as of nonetheless de employee turnover —which the substantial “Fundamentally clared: the considers importantly, not it Board did address. Most evidence of turnover to be irrelevant as process anything is but clear that the lasted concerning govern factors that the issuance beyond much ALJ made the election. The at of Gissel order.” Id. no finding to this effect and there scant Servs., (citing Printing 300 N.L.R.B. Astro to support evidence in the record (1990); Management Waste of that did. As for retention of observation it (1993)). Utah, 310 N.L.R.B. corporate personnel, the while decision, In the Board failed to correct Flamingo’s found role in ALJ Anderson’s the ALJ or to redirect the focus of the see, substantial, counter-campaign e.g., was inquiry. With no mention of the overwhelm- (“Anderson primarily developed id. at 8 the ing authority from this circuit and others Respondent’s countering overall extent of emphasizing to circum- the need campaign.”), neither the ALJ the Board nor (and remedy time not at the stances the of continuing the effect of assessed Anderson’s violation), adopted the time of light retention turnover views the law and of the facts with ALJ’s management, changes including addressing pas- on-site change. little Without sage “high- apparent departure of both Sherlock Ko- specifically, of time Board did cmployees Appellant Flamingo alleges at the Brief supervisors 5. that 14 of the 21 hotel. See practices, found to have committed unfair labor & n.4. Kosinski, including longer are no Sherlock and Respondent’s that “it was nod in ALJ reasoned passing Board's In short the sinski.6 (or courts’) designate Vasquez interpret- not to direction does choice as court’s assembly category employees” II case. in a for a substantial meet its burden er that iterate —find a bar- Respondent’s Board must —to “[a]s such she became necessary at the time it gaining order and in agent purpose, for this limited finding with a “rea- support its issued and Hispanic process disseminated threats to that will explanation [us] enable soned taking meaning her employees from as to opinion that from the Board’s determine supervisors pre- prominent two what employees’ gave due consideration it basis,” special senting.” “On this all, are, rights, which one section concluded, allegations must be Act, why purposes fundamental disagree. to have merit.” Id. We purposes must over- it concluded other authority only supporting cited employees rights of the choose ride ALJ, employee-interpret- the Board found an (3) why bargaining representatives and their agent acted an of the ex- er remedies, employ- less destructive other pressly employee’s ex- “activities adequate.” rights, are Charlotte ees’ ceeded those of mere neutral translator.” (citations Amphitheater, 82 F.3d Indus., Ella 295 N.L.R.B. 976 n. omitted). (1989). no There is here that evidence Vas- supporter, played quez, herself Union III. merely comparable role. She was enlisted Having rem- concluded that words, Vaughn’s hac pro vice to translate stand, edy now address Flamin- cannot we happened be apparently because she both due go’s substantial evidence and meeting. bilingual present at the Be- arguments. (or Vaughn no cause there is representative man- First, agree we with prac- the unfair labor agement) committed findings practice must be two 10(bb) alleged paragraph tices supported by substantial because not vacated 10(ec) complaint, we cannot sustain USA, Inc. See CitiSteel evidence. finding that he did. Board’s (D.C.Cir.1995). The ALJ director of the hotel’s assistant found that uphold Nor can we the ALJ’s Vaughn, housekeeping, Kent committed “unlawfully informed by threatening employ that President Sherlock futile for meeting pay that would be them their would ees at slip op. at they they support if the Union.” lose benefits reduced and would ALJ, Galaviz, a Union, According Edgar based on voted favor department, “testified meeting fry cook in the chef at the comments translation company bilingual had said the Vasquez, guest that Sherlock made Amanda Union, attendant, interpreter obliged negotiate but who acted as room prolong any negoti he could time the ALJ in another sense meeting. Yet at the same the expressly Vasquez’s “chronically years.” for ALJ ations expressly discredited testimony testimony, finding rejected “that Sherlock Galaviz’s and unreliable” overstated company obliged to that was not Vaughn’s actual said had mistranslated she accepted words, negotiate” as credible asser were that “loss to but which to effect negotiations “that consequence of stated an tion Sherlock employees was inevitable prolonged years.” for Id. The ALJ unionizing” which the ALJ ac could be and them surviving evidence in largely per then concluded: “The knowledged “partisan, but [Edgar] support allegation 42. The of this Flamingo, slip op. at missible.” Flamingo, slip op. changes.” benefit and Kosinski the overall The ALJ ascribed to Sherlock not responsibility prac- at 62-63. And the Board did contradict for unlawful much of the tices, According findings. to key perpetra- both characterizing these Sherlock as “a employ, left its perpetrator and Kosinski have since "the of the Sherlock and Kosinski as tor” n.4, although Appellant & person Brief 25 major most of conduct” and "the amount implementing departure noted the record. advising, Kosinski’s is not in planning, active and in 1174 Act”); ing it Galaviz[, fry department,] in chef a-violation Ron a cook cf. 1135, Junkert, n. 2 Respondent negotia- 1135 foresaw 308 to effect N.L.R.B. years.” employer’s Id. Sherlock’s lasting (finding

tions as unfair labor statement, it from as the construed only negotiate to he “statement had. credited, support an testimony contract, he- does Union, negotia not-sign and practice finding. In NLRB v. only “in year” last this tions could Co., 575, Packing 89 S.Ct. and, indeed, context, a threat it was eoercive (1969), Supreme 547 L.Ed.2d 23 support for the would Union Court declared: futile”); Microfilming, Atlas communicate to employer is free to (finding [A]n state N.L.R.B. 685-86 any general his of his views you go government, can to ment “[S]ure any specific unionism or views about election, you bargain one you can-win the union, long particular so about a years, going year, years, three we’re not two contain a ‘threat of communications do not “nothing less agree anything” than or reprisal promise or force of benefit.’ warning employees’ that the efforts to or may prediction He even as to make collective-bargaining rep ganize and select a he unionization will precise effects believes futility”). exercise in resentative was an case, company. have on his Finally, address due we however, carefully prediction must be argument join and circuits in objective phrased fact to on the basis holding authority under the that the Board’s convey employer’s as to demon- an belief injunctive preliminary Act to seek relief beyond his strably probable consequences against employer the district court does convey management deci- control or deprive neutral deci plant in already sion arrived at to close subsequent proceedings before sionmaker case unionization. Mkts., the Board. See Kessel Food Inc. (quoting 29 89 S.Ct. 1918 U.S. (6th Cir.), 887-88 cert. 28(c)). The § Board itself has ex- U.S.C. denied, U.S. S.Ct. pressed the references “[m]ere view (1989); NLRB v. L.Ed.2d 43 Home Sanford possible negative of unioniza- outcomes Adults, Cir.1981); 669F.2d cf. deprive employer’s ... cam- [an tion do not Blinder, SEC., & Co. v. Robinson protections of Section paign] materials of (SEC’s (D.C.Cir.1988) authori 8(c).” UARCO, Inc., N.L.R.B. injunction ty to seek district court and (1987), has, accordingly, no unfair impose penalty administrative does not later practice in such state- denied, process), due cert. U.S. violate “Please, union ments don’t let outside (1988). 177, 102 109 S.Ct. L.Ed.2d you your Company into a knock- force Circuit, dispositive find Like the Sixth we 56-58, drag-out fight!,” id. at down Supreme holding in v. Lar Court’s Withrow put vote for the would us back [union] “a kin, 95 S.Ct. 43 L.Ed.2d U.S. long which is table (1975), investiga that the combination of knows, process, might we expensive who not, adjudicative does tive and functions strike,” in another wind Coleman [sic] without, more, a violation of due constitute (1970). Because 203 N.L.R.B. ' Mkts., F.2d at process. See Kessel Food speculated about the Sherlock’s statement perceive separation we 887-88. Nor do bargaining negotia- potential duration powdrs defect the Act’s scheme. See “foresaw,” he tions based what Blinder, 837 F.2d at 1103-04. in practice alleged para- of an unfair labor 11(b) graph complaint must be vacat- NLRB, v. Elec. Co.

ed. See General IV. (D.C.Cir.1997) (in finding preceding reasons-we-grant Flam- For the labor based deny ingo’s petition for the un- review suggesting likelihood of strike if handbill of election, by cross-application Board’s for enforcement “the ALJ erred convert- ion won certainty, it finds unfair possibility then the Board’s order insofar as ing a into declar- the Board and the ALJ considered paragraphs in Both practices labor as described 11(b) management turnover 10(cc) the hotel’s evidence of 10(bb), com- of the NLRB particularized explanations, and offered Flamingo bargain plaint orders bargaining does not this evidence make grant cross- with the We Union. inappropriate remedy. At the hear- order application for enforcement of its order ALJ, ing the hotel before the introduced practices other unfair respect labor showing eight twenty- evidence been committed. We further found to have supervisors found un- one to have committed for the NLRB to reconsider remand e.mployed practices longer were no fair labor remedy, in our appropriate accordance with exception of William by the hotel.1 With precedent, bargaining issue a order and to Sherlock, President, the hotel’s the ALJ J. light only makes a in of if it significance depar- these discounted order, taking at the time circumstances supervisors’ con- because the unlawful tures time, passage into turnover account only in “minor or had duct was nature” change management, in unit members and comparison impact minimal in past erasing the effects of possibility other unfair to the substantial number of insuring a practices fair rerun election manage- practices by hotel committed slight by traditional the use of remedies Additionally, explained that ment. the ALJ expressed sentiment once gone fact that has “the mere Sherlock is now pro- in Union be better favor would lessened effect when is known basic by bargaining tected order.” Charlotte policies by corpo- relations are devised NLRB, Amphitheater Corp. v. 82 F.3d necessarily rate Hilton executives and not omitted). (citations president given point in property at some time.” So ordered. assessment, clarify Anderson, Hilton’s pointed Board Jim ROGERS, Judge, concurring: Circuit Vice for Labor Corporate Senior President Although agree I that the Board has failed Administration, and Personnel Relations adequately imposition its of a Gis- explain remaining corporate executives one of the order, record demon- sel major orchestrating “played who role find-

strates that the made sufficient campaign against unlawful the Un- [hotel’s] ings management at the regarding turnover “primarily developed the Anderson ion.” suggested that hotel. While the ALJ first countering cam- [the overall extent hotel’s] turnover,” general, should “management drive, paign” against organization the Union validity of a “affeet[] helped group” one of the “select order,” proceeded to this factor he address consulting firm the labor relations choose unconvincing. union, the hotel’s evidence to combat the and directed hired turn, Board, findings adopted The these managers implementing the cam- on-site and clari- regarding turnover Although personal- was not paign. Anderson sufficiently. underlying reasoning ly majority fied the involved view, Thus, my principal requir- supervisors, issue committed on-site the hotel’s directly participated consideration on remand is in some of further he pervasive turnover at unlawful conduct. He was evidence of substantial more involved, example, in the hotel’s decision the election. since Cir.1979). decision, NLRB, rendering erth AO denied Before Nev eless, reopen the record to the hotel ALJ did the effect of Sher motion consider supervisors, that three additional admit evidence including departure on the need for a lock’s order, Sherlock, J. William the President consider this and therefore court can throughout period, left the election hotel reviewing See Board's order. employ. hotel has raised sub Amphitheater Corp. v. Charlotte challenge petition to this decision in its stantial (D.C.Cir.1996) Corp. (citing Conair review, only and the court can (D.C.Cir. 1388-89 n. 29 U.S.C. in the record. See evidence contained § J., 1983) (Wald, dissenting)). Plastics, (1994); 160(e),(f) Glomac 1176 any more to deal prior Hilton does want with to improve employee health benefits

to Hilton, the Reno or unions at responsible for deter and was the election [including Flam- properties its Nevada He timing of mining the the announcement. agree that ingo Hilton-Laughlin]. All wages for hour approved an increase also' of the un- Reno learned [the Hilton] once than half ly employees, which affected more activities, it at organizing decided ion department. employees in the hotel oppose Un- highest corporate levels to delegat “Anderson was In the ALJ’s words: its midlev- involve all or most of ion and to timing, its responsibility to determine ed resisting high executives the Un- el and might interplay with knowing well it how ion’s efforts. it campaign he directed to the Union’s ” immediately. Electrical implemented Corp., NLRB at Resorts 319 Reno Hilton Cf. . Corp. v. Div Midland — Ross 6; Prods. 1164; n. id. Hilton Hotels see also at Cir.1980). 977, (emphasizing evi Corp., 282 NLRB at 821 all that the entertainment director dence Regardless of Anderson’s of .the extent “corpo properties was under the Nevada personal in the hotel’s unlawful complicity fight” unionization rate instructions election, attempts the Board to influence Hilton). Indeed, in the at the Reno drive general his its view used conduct illustrate un management Flamingo has even past, responsibility for the hotel’s actions lawfully bargain a union after refused corporate higher levels of Hilton’s reached represen it was elected certified as management. other Hilton Anderson and unit at tative a different policies for executives set basic Hilton-Laughlin, Flamingo hotel. See specifically Hilton’s various casino-hotels and (BNA) No. 140 L.R.R.M. NLRB by taken approved some the actions (Mar. 31, 1992), enforced, 19 F.3d Thus, supervisors. con the .Board hotel’s Cir.1994). (9th that turnover in on-site cluded sum, clearly has articulated In unlikely improve the chances for a fair depar the reasons concluded n long corporate as Hilton reru election supervisors on-site has ture several policy unchanged guided by ex remains of a substantially possibility increased the NLRB v. as Anderson. See ecutives such contrary to particular, rerun fair election. Co., Storage Berger & Transfer 11, the suggestion, opinion see the court’s (7th Cir.1982); Anchorage NLRB v. already significance Board has addressed (9th Co., Publ’g F.2d Times Moreover, resignation. of Sherlock’s Cir.1981). failing cannot be faulted consid ‘departure because the er John Kosinski’s This conclusion bolstered developm no this involving contains evidence of experience in other cases similar record court to the Board’s attempts by Hilton to interfere with ent.2 The must defer unlawful “expert [continuing] ef hotel-casinos. as to union elections its Nevada estimate Resorts, See, on the of unfair labor e.g., Reno 320 NLRB fects Hilton (1995); Packing practices,” Reno NLRB v. Gissel 197-98 Hilton Resorts (1995); n. Corp., 1165-66 89 S.Ct. L.Ed.2d 319 NLRB U.S. accord, Reno, (1969); Supermarkets, Davis Inc. 317 NLRB 361 547 Hilton (D.C.Cir. (9th mem, (1995), 1175-76 F.3d 1157 Cir. v. aff'd 1993), 1996); long provided Corp., so it has reasoned Hotels Hilton (1987). explanation upon its example, one of conclusions based For record, cases, Ave- substantial evidence these noted: briefs, There has at the it issued the order. In its the hotel asserts that Kosinski time specifying employ, without the date of left departure no that the hotel ever alerted indication evidentiary offering any support. development, or Board to factual and the Board it is was still From record clear Kosinski obligation inquire no sta- into Kosinski’s throughout employed hotel the course Amphitheater Corp., tus. See Charlotte hearings ALJ. also before the The Board at 1080. knowledge departure appeared no of his to have cor, affiliated with the union.” Because (D.C.Cir.1991). screening per- out this unlawful was carried sonally by supervisors, it re- one or two opinion. I concur the court’s otherwise undetected until into the course mained well why adequately explained The has not Board Although hearings before the ALJ. had not employee turnover ameliorated evidence human there is no that the hotel’s unfair effects of the hotel’s department using is this sec- resources still un- such an extent that Gissel order was sup- approval round of Union ond to dilute the effects necessary. The dismissed port, procedure in effect. The remains within employee turnover given “deep com- ALJ noted the hotel’s “unlawful primarily units hotel’s resisting of its mitment” to the unionization job applicants for screening of ... continued “conduct invites the employees, this devious July 6,1993 many months after election.” presumption tainting] could [that further might While the Board well determine readily undercutting this recur.” Somewhat screening process, if employer’s an used however, facts presumption, apparent are the employee alter in order to natural turnover supervisor responsible devising that the for elections, might disfavor the union future screening, implementing applicant imprint lasting leave that a fair rerun “so Kosinski, by the longer employed John is no assured,” cannot be id. at election responsibility hotel3 and that for con- clear, 1172-1173, opinion court see makes approval step now di- ducting the second regard is not the Board’s assertion among vided several different members only supported by record. The ALJ department. resources These are the human pro- found that the hotel screened out for the remand. considerations Board on directly pre- applicants Union months Furthermore, election, appli- aside from the issue of sup- evidence ceding the little screening, may there reasons cant exist other ports screening con- the conclusion employee within substantial turnover On tinued afterwards. remand may bargaining units have failed to dissi- “carefully must consider turnover” pate the effects of “changes in [ho- and determine whether practices. cursorily dismissing After the evi- force have tel’s] work made “irrelevant,” turnover as inappropriate, might if dence order now even one the ALJ remarked: appropriate have at some earlier time.” been Oldsmobile, v. Pace (quoting employees re- are several hundred [T]here (2d Cir.1982) curiam)) (per experienced maining in the two units who (internal omitted). quotation marks The influencing practices. closes, facility never a more than ordi- Although that the hotel contin- its present continuing nary potential Union-leaning applicants ued to screen out among new and and cross communication maintained, cannot as con- longer service as well explanation least further not without spanning departmental lines versation relies, inferences on which it evidence and long many happenings the Union’s about remand the the Board should campaign. hiring changed hotel has not its fact that the thus, and, speculative conclusion does procedures potential for abuse This somewhat itself, election, not, explanation provide hotel sufficient Prior to the remains. bargaining order. hiring practices by requiring imposition for the modified step job approval applicants. Cf. Be-Lo Stores second (4th Cir.1997). pointed to no evi- used This additional level review was in the record that “cross-communica- supervisors in the hotel’s human resources dence actually of- but rather department disqualify who had tion” had occurred applicants equally assumptions that could general casino fered working or relatives “friends reopen such evi- departure the record to admit Although Board to Kosinski's record, supra 102.48(b) (1998). note § not contained in the remand, C.F.R. dence. See 29 course, may, petition the hotel (D.C.Cir.1980), may increase the Perhaps many employers. apply to statements, fair when com- realizing rerun election inadequacy these chances of changes in the on them and bined with other did not comment Board J.L.M., unit, turnover. See emphasize the hotel’s contin- instead chose Cir.1994). NLRB, applicant screening as factor undercut- ued since the years elapsed turn- now ting the five have effects substantial Over remand, initial Nevertheless, election. representation the Board tainted over. decision, adopted ALJ’s find- findings and the ALJ’s should reevaluate ing three-year lapse between showing that knowl- evidence representative and his order edge of the hotel’s litigation particular- throughout course to disseminate the normal continues Nevada, complexity of the Laughlin, relatively ly unavoidable due workforce. Regardless adequacy industry population chief instant case. small center whose hotels, reasoning, includ- on remand the Board large casino consists several intervening Flamingo. employees, New who must readdress whether casinos, conjunction changed cir- years, in with the likely at other area have worked cumstances, dissipate helped have the re- may already know the difficulties maining Flamingo’s unfair labor management’s the hotel and determination effects Amphitheater specific practices. But prevent unionization. without See Charlotte Avecor, 1078; Inc., supported Corp., findings by record, purely remain F.2d at such factors cannot speculative and Avecor, 931 F.2d at 938.

issue. See time,

Finally, passage of in and while the itself, dispositive, St. should not be v. & Health 'ls Francis Fed’n Nurses Prof (D.C.Cir.1984);

Peoples Sys., Inc. Gas

Case Details

Case Name: Flamingo Hilton-Laughlin v. National Labor Relations Board

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 31, 1998

Citation: 148 F.3d 1166

Docket Number: 97-1467

Court Abbreviation: D.C. Cir.