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

Opinion:  hr.cch.com/eld/MEIGSR051617.pdf