Skip to main content

NLRB: Former Employee Cannot Be Barred From Work Premises After Filing Wage Suit


MEI-GSR Holdings, LLC - NLRB


Facts:  MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino ("GSR") operated a facility that included a hotel, casino, restaurant, clubs, bars, and a pool which were all open to the general public.  Tiffany Sargent ("Sargent") was briefly employed by GSR as a "beverage supervisor" in December of 2012.  After her employment ended, Sargent continued to socialize at one of the clubs.  GSR had a long standing practice of allowing former employees to patronize its facility and did not prohibit Sargent from doing so.  In June of 2013, Sargent and another employee filed a class and collective action against GSR for alleged unpaid wages, in violation of the Fair Labor Standards Act and Nevada law.  In July of 2014, GSR denied Sargent access to an event at one of the clubs.  GSR followed up with a letter and stated that with the on-going litigation (from the wage suit), it decided to bar Sargent from the premises.

Sargent subsequently filed a charge with the National Labor Relations Board ("NLRB") and alleged that GSR violated Section 8(a)(1) of the National Labor Relations Act ("NLRA") by denying her access to the work premises due to her filing the FLSA claim.  The Administrative Law Judge held that GSR's actions were in violation of the NLRA and GSR filed exceptions.

Finding:  The Board's decision noted at the outset that GSR expressly retaliated against Sargent in response to her participation in protected activity (filing the FLSA claim).  It quickly followed with a rather stinging rebuke of Chairman Miscimarra's dissent for "relying on a series of mischaracterizations of basic labor law principles."  (But we will get to that in a bit.)

In this instance, the matter turned on whether GSR interfered with, restrained, or coerced employees in the exercise of the rights guaranteed in Section 7 of the NLRA.  The basic test for whether a Section 8(a)(1) violation has occurred is whether the employer engaged in conduct that reasonably tends to interfere with the free exercise of employee rights under the NLRA.  (Two of the important things to keep in mind here is the fact that a finding of restraint or coercion does not depend on the subjective reaction of employees and the GSR's motivation is not relevant to the inquiry).  The Board held that based upon the facts, GSR's employees could reasonably conclude, after watching how Sargent was treated, that they too would be subject to reprisals and deterred from participating in a work related lawsuit or other protected concerted activity.  As a result, GSR's conduct taken in response to Sargent's protected activity was found to reasonably chill employees from exercising their Section 7 rights under the NLRA.

Decision:  In a 2 - 1 decision, the Board held that the GSR violated Section 8(a)(1) of the NLRA by denying a former employee access to its facility after the employee filed a wage suit against GSR.

The Takeaway:  Let us get straight to the point, while the two Board members worked to point out inconsistencies in Miscimarra's dissent, I think one of Miscimarra's points was quite sound.  Miscimarra pointed out that GSR had a legitimate and specific interest (avoiding potential interactions with Sargent prohibited by the court and workplace conflict) that were protected by the Nevada trespass statute and subsequently outweighed Sargent's Section 7 rights.  It is not unreasonable to think that a former employee who still comes to the work premises (in this case the club) could be a potential risk for disaster.  A former employee that might hold a grudge is an untenable situation for any employer...especially when that former employee still comes to the work premises and there is the potential that alcohol could be involved.  However, this portion of Miscimarra's dissent appears to have fallen short for a few reasons:  The ALJ held Nevada trespass law did not apply and GSR failed to except to the ALJ's conclusion or advance a specific business justification for its action.  As a result, as the majority noted, this argument was waived by GSR.  Had GSR excepted to this portion of the ALJ's conclusion...perhaps this decision could have gone another way?  Even if it had, I question whether that wold have been enough to get a majority of the Board to decide that GSR did not violate the NLRA.

Date:  May 16, 2017

Opinionhr.cch.com/eld/MEIGSR051617.pdf

Comments

  1. Many thanks for your kind invitation. I’ll join you.
    Would you like to play cards?
    Come to the party with me, please.
    See you soon...

    คาสิโน

    เครดิตฟรี

    คาสิโน

    เล่นบาคาร่า

    ReplyDelete

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa

Utah Non-Compete Bill Falters in House

Last month, a non-compete bill sponsored by Representative Brian Greene (Republican from Pleasant Grove) & up for vote in the Utah House failed to make it through the Legislature.  The bill sought to ban enforcement of non-competes if they came after a worker was already employed, given no compensation (such as a bonus or promotion) for signing the non-compete, and laid off within six months.  However, by a 22 - 49 vote, the bill was resoundingly defeated after some business groups lobbied to kill the non-compete bill.  One group in particular, The Free Enterprise Utah coalition, argued that the Utah State Legislature should hold off on any changes to non compete laws in the state until a survey about non competes was done among Utah businesses.  Representative Greene had countered this claim and argued that a survey was not needed to show that the current non compete laws in the states allowed many businesses, including some small high tech companies in the state, to per