[00:00:00] Speaker 02:
Base number 24-1221 at F. NP Red Rock LLC, doing business as Red Rock Casino Resort Spa Petitioner versus National Labor Relations Board.

[00:00:11] Speaker 02:
Mr. Lomina for Petitioner, NP Red Rock LLC.

[00:00:15] Speaker 02:
Ms.

[00:00:15] Speaker 02:
Weber for Petitioner, Local Joint Executive Board of Las Vegas.

[00:00:19] Speaker 02:
Mr. White for the Respondents, Ms.

[00:00:21] Speaker 02:
Weber for the Intervener.

[00:00:24] Speaker 06:
All right, Council, we may proceed.

[00:00:26] Speaker 07:
May it please the court, Rayburn Lomenack for the Petitioner, Red Rock.

[00:00:31] Speaker 07:
The NLRB's case against Red Rock is grounded in sensationalism rather than the law.

[00:00:38] Speaker 07:
Red Rock's parent company, Station Casinos, decided to improve benefits for nearly 14,000 employees across all of its properties in Las Vegas, including at properties that were already unionized.

[00:00:50] Speaker 07:
That decision was made before the Culinary Workers Union filed a petition to represent Red Rock workers.

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This was not, as the board described it, a carefully crafted corporate strategy intentionally designed at every step to interfere with employees' free choice, whether to select a union or not.

[00:01:07] Speaker 07:
It was carefully crafted to improve lives.

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Free choice is an inviolate right under the NLRA, as this court has observed.

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Employees are guaranteed the freedom to choose whether their own best interests are protected by or served by a union or not.

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A majority of Red Rock's 1,300 employees decided through a secret ballot election in December 2019 that their best interests were better served without a union.

[00:01:35] Speaker 06:
But although you approve the 2020 before the union filed the petition, sorry, I said although you approve the 2020 plan before the union filed the petition, there's certain direct evidence in the record, you know, quoting things like incentivize team members not to vote for a union offering free HMO would take away from the union power.

[00:01:54] Speaker 06:
How do we ignore those particular statements of direct evidence that perhaps you were trying to take that idea?

[00:02:00] Speaker 07:
Yeah, so that is direct evidence, but it's direct evidence of an intention to not want to be unionized, which is not unlawful.

[00:02:09] Speaker 07:
The board mischaracterizes, overgeneralizes, and overstates language that was cherry picked from thousands and thousands of documents to suggest that Red Rock and its executives were trying to kill or destroy the employees' rights.

[00:02:26] Speaker 07:
They were not, and there's not a single bit of evidence that they were.

[00:02:30] Speaker 07:
drawn from the board's inferences based on that, but those.

[00:02:34] Speaker 04:
But our standard of review is deferential to the board.

[00:02:38] Speaker 04:
Their findings just has to be supported by substantial evidence.

[00:02:41] Speaker 04:
And why isn't the evidence cited by Judge Childs sufficient?

[00:02:45] Speaker 07:
So the evidence that's cited by Judge Childs goes directly to the motive behind the decision to grant these benefits, but it doesn't go to the motive to interfere with employees' rights, which is a very different thing.

[00:03:02] Speaker 07:
And this court has recognized in the Skyline Court case, which we've cited throughout our briefs, that a grant of benefits is not a serious violation.

[00:03:14] Speaker 04:
But what's the timing of this?

[00:03:17] Speaker 04:
The timing was intended to undermine the union organizing efforts.

[00:03:23] Speaker 07:
The timing of the announcement came after the petition, but the timing of the benefits themselves, the grant of benefits, which the board in its decision says was the heart of the case, that was well before.

[00:03:36] Speaker 07:
The announcement alone did come after the petition was filed, and the board inferred that it was intended to influence the election.

[00:03:47] Speaker 07:
But the problem with the board's case on the bargaining order issue is

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no bargaining order has ever issued for an unlawful intended, unlawful announcement, the speeding up of an announcement of a benefit.

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The employees were going to get this benefit.

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It had been granted.

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There was no reasonable

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There was no reason to delay telling the employees what they were going to get.

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Now, yes, the board did find the announcement unlawful.

[00:04:19] Speaker 07:
But again, that's not the heart of their gistle.

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And they know it.

[00:04:22] Speaker 07:
The heart of their gistle is the grant of benefits, which they run smack into Skyline with this court, which is very problematic for them.

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And they know it.

[00:04:34] Speaker 04:
So isn't it your burden to show that Red Rock would have taken the same actions at the same time, even if there had been no union activity?

[00:04:43] Speaker 04:
Where's the evidence of that?

[00:04:45] Speaker 07:
Well, we presented tons of evidence regarding the legitimate business reasons, which the judge discredited.

[00:04:51] Speaker 04:
I'm sorry?

[00:04:52] Speaker 04:
The timing, I think, is critical.

[00:04:54] Speaker 07:
The timing of the announcement.

[00:04:56] Speaker 04:
The timing of everything that happened, the announcement that also there's, you know, statements to employees about the benefits that they could be taken away if you don't know the stakes of all of that.

[00:05:11] Speaker 04:
It just seemed that everything was geared towards towards the unionization efforts.

[00:05:17] Speaker 07:
And again,

[00:05:18] Speaker 07:
geared towards the unionization efforts is very different from geared towards interfering with employees' rights.

[00:05:25] Speaker 04:
What's the difference there?

[00:05:27] Speaker 04:
If you're trying to stop the employees from voting for unionization, which affects their rights, I don't see what the difference is.

[00:05:35] Speaker 04:
Right.

[00:05:35] Speaker 07:
There's a difference because Red Rock was not trying to stop employees from voting.

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Red Rock was trying to encourage employees to not vote for the unit.

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And that's the difference.

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There is nothing wrong.

[00:05:48] Speaker 04:
They're not allowed to interfere with the union's voting for the union or not by doing things that are unfair labor practices.

[00:05:58] Speaker 07:
That is correct.

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But it is not unlawful to encourage employees to not want a union.

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That's what employers do in union campaigns all the time.

[00:06:05] Speaker 04:
So assuming we disagree with you, let's talk about the remedy.

[00:06:07] Speaker 04:
Sure.

[00:06:08] Speaker 07:
Sure.

[00:06:10] Speaker 07:
And that's really the heart of this case.

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So getting beyond motive, which if you look at the violations that were based on the speech, the threats, the promises, things like that, all of that is speech.

[00:06:23] Speaker 07:
There was no direct threats.

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They were all implied threats, and they were based on speech.

[00:06:30] Speaker 04:
And when you factor in- So you think that this case turns on whether they're direct versus implied threats?

[00:06:36] Speaker 07:
I think that the Gissell bargaining order depends heavily on the nature of the violations found.

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And the problem with the board's case and the problem that the board has had all along is that nobody was fired.

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Nobody was told that this place is going to close down if a union comes in.

[00:06:54] Speaker 04:
There are ways to retaliate besides being fired.

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That's true.

[00:06:58] Speaker 04:
There's three instances in the record that seem to be supported by evidence.

[00:07:02] Speaker 04:
But should we be considering this under Gissell or CMAX?

[00:07:06] Speaker 04:
I don't know if I'm pronouncing that correctly.

[00:07:08] Speaker 07:
I believe it's CMAX.

[00:07:10] Speaker 07:
But let me first, if you don't mind, let me address those three allegations you're talking about.

[00:07:16] Speaker 07:
None of those, I assume you're talking about the warnings, the written warnings, and then after the election, there was a failure to recall a single person.

[00:07:24] Speaker 04:
There was somebody who was, I guess, penalized for putting too much horseradish in the potato salad.

[00:07:31] Speaker 04:
on disability, but was made to clean drains that was not appropriate for her to do.

[00:07:35] Speaker 04:
And then there was somebody who was not hired back, even though she had seniority.

[00:07:40] Speaker 04:
So there were instances of retaliation.

[00:07:42] Speaker 04:
Right.

[00:07:42] Speaker 07:
Prior to the union's majority support, right?

[00:07:46] Speaker 04:
So when you look at whether- Oh, Theresa Powers, that was after the vote.

[00:07:50] Speaker 07:
Correct.

[00:07:50] Speaker 07:
Theresa Powers was after the election, six months after the election.

[00:07:54] Speaker 07:
So that was factored in as it relates to whether the- No, but it's just like what you said was not accurate.

[00:08:00] Speaker 07:
What I said was nobody was discharged, right?

[00:08:04] Speaker 04:
We're past discharge.

[00:08:05] Speaker 04:
We were talking about other instances of retaliation.

[00:08:07] Speaker 04:
You said none of this happened before.

[00:08:10] Speaker 04:
Petition.

[00:08:11] Speaker 07:
None of this happened during the critical period.

[00:08:14] Speaker 07:
So after the petition was filed, up until the election.

[00:08:17] Speaker 07:
So from that period, also from the October 16th, 2019 period, when the union had majority status, from that period up until the election, there was not a single 8A3 violation, which is the discrimination allegation that you're referring to.

[00:08:33] Speaker 07:
And the reason it's important for this case, the reason it's critical.

[00:08:36] Speaker 04:
There are other violations, like the stakes, et cetera.

[00:08:38] Speaker 07:
Correct.

[00:08:39] Speaker 04:
But the reason this is all critical- You're trying to parse this very finely.

[00:08:42] Speaker 07:
And it's important to parse it finely because the Gissell bargaining order is an extreme remedy.

[00:08:48] Speaker 07:
This court has specifically held it's an extreme remedy.

[00:08:52] Speaker 04:
So if there's no extreme- So is your bottom line that this was not egregious?

[00:08:55] Speaker 04:
What's your bottom line on the Gissell bargaining order?

[00:08:57] Speaker 07:
The bottom line is that this court has said a grant of benefits is not a Hallmark violation.

[00:09:03] Speaker 07:
the board's entire case is grounded in that.

[00:09:05] Speaker 04:
But we have so much more than that.

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There's just so much more than that.

[00:09:08] Speaker 04:
There's a grain of benefits.

[00:09:09] Speaker 04:
There's the timing.

[00:09:10] Speaker 04:
There's the retaliation.

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There's the threats that you're going to lose all this.

[00:09:13] Speaker 04:
There's the stakes that say vote no.

[00:09:15] Speaker 04:
There's so much more than that.

[00:09:18] Speaker 07:
None of that is considered a Hallmark violation.

[00:09:21] Speaker 05:
Are you suggesting that without the so-called Hallmark violation, no cumulation of other violations can be sufficient to advance a clean election and acquire a disorder?

[00:09:35] Speaker 05:
A bargaining order?

[00:09:36] Speaker 07:
There are circumstances where violations

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and other violations beside a grant of benefits can support a GISSEL, and this court has found that.

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However, this court, if you look at its jurisprudence on GISSEL, has not enforced a single order that did not involve a discharge.

[00:09:57] Speaker 07:
and that did not involve threats of closure, two of the most egregious hallmark violations.

[00:10:03] Speaker 07:
And in fact, even in the Skyline case itself, while they were constrained to agree that the grant of benefits was unlawful under exchange parks, they said this doesn't even come close to supporting

[00:10:16] Speaker 06:
a guess or bargaining order of the extreme remedy when you let's talk about a little bit about the miscellaneous unfair labor practices because you've got a few of those that you're matching as well.

[00:10:26] Speaker 06:
Even if we were to rule in favor of you in this game goes back to Judge Pan's question about how you're parsing things.

[00:10:32] Speaker 06:
If we ruled in favor of you on any of those, does it really change the outcome?

[00:10:36] Speaker 06:
Well, if you rule in favor of us on all of them, of course, but I mean, in other words, there's still direct evidence in the record as I indicated earlier in one of my initial questions.

[00:10:48] Speaker 06:
How does us ruling for those in your favor help you?

[00:10:52] Speaker 06:
Would it change the outcome if we still believe there's substantial evidence to support the board's decision?

[00:10:57] Speaker 07:
Well, if you rule.

[00:10:58] Speaker 07:
Regardless of whether you rule in favor of us on any of the 8-8-1 violations, which is all that's in place here during that critical period, this is speech.

[00:11:08] Speaker 07:
These are statements, most of them by managers and supervisors who were in good faith trying to explain the processes.

[00:11:14] Speaker 07:
There was no intentional act here.

[00:11:16] Speaker 07:
There was nothing except for the unlawful motive found with the benefits, none of the other statements.

[00:11:22] Speaker 06:
What is your thought about what

[00:11:24] Speaker 06:
is acceptable for an employer to do?

[00:11:27] Speaker 06:
Maybe let's start there.

[00:11:28] Speaker 06:
What are you giving us as kind of the baseline for what an employer is allowed to do that does not taint or interfere with an employee's free choice as to whether or not to join a union?

[00:11:42] Speaker 07:
communicate about the pros and cons of unionization, have discussions.

[00:11:47] Speaker 07:
HC protects that.

[00:11:48] Speaker 07:
This is the First Amendment.

[00:11:50] Speaker 06:
But in that communication, can you be derogatory toward the union?

[00:11:56] Speaker 07:
You can absolutely be derogatory towards the union.

[00:11:58] Speaker 07:
You cannot

[00:12:01] Speaker 07:
You cannot infringe on employees' rights.

[00:12:02] Speaker 07:
You cannot threaten, interrogate.

[00:12:06] Speaker 07:
You can't make those types of statements.

[00:12:08] Speaker 07:
And I think just going back, and I see I'm almost out of time before I can finish this talk.

[00:12:13] Speaker 07:
If you look at the context here, if you look at everything that was going on, the number of people involved,

[00:12:20] Speaker 07:
right?

[00:12:20] Speaker 07:
The heart of all of this is that employees' free choice to decide whether they wanted a union or not is best protected by the secret ballot election, not union cards that union organizers had employees sign.

[00:12:36] Speaker 07:
And that's what GISSEL is all about.

[00:12:39] Speaker 07:
That is the reason in this case why it's not

[00:12:44] Speaker 07:
support of a gistle because these were not hallmark violations.

[00:12:49] Speaker 07:
This court has held as much.

[00:12:50] Speaker 06:
Okay.

[00:12:51] Speaker 06:
And then with respect to the structural argument, there's an allegation that you didn't preserve that.

[00:12:57] Speaker 06:
So you want to speak to that?

[00:12:59] Speaker 07:
Yes, so the unconstitutional aspects of the board, that came to light down the road after this case was in place.

[00:13:09] Speaker 07:
But that, in our position, is that that goes to the heart of the board to act.

[00:13:14] Speaker 07:
So that's not a question or an issue that can be waived.

[00:13:17] Speaker 07:
And so we argued it and respectfully requested the court to consider.

[00:13:22] Speaker 06:
OK, but you agree that you have not put it before the board or the ALJ?

[00:13:28] Speaker 07:
We did not raise it.

[00:13:29] Speaker 07:
That is correct.

[00:13:30] Speaker 07:
Yes.

[00:13:31] Speaker 05:
Okay.

[00:13:32] Speaker 05:
Your argument seems insofar as you're talking about the necessity or at least the near necessity of a hallmark violation.

[00:13:40] Speaker 05:
That seems to depend upon your characterization of Teresa Power's failure not being recalled as being something less than being discharged.

[00:13:51] Speaker 07:
My position on that is based on the fact that that

[00:13:55] Speaker 07:
Incident occurred six months after the election and certainly after the point where employees free choice was committed to be expressed.

[00:14:04] Speaker 05:
Six months after the election and before or after the board had determined that the election was not valid?

[00:14:12] Speaker 07:
It was before the board determined the election was not valid.

[00:14:17] Speaker 07:
It was six months after the election and the board looked at it and said, well, this means the employer 1300 employees, one single person not recalled found to be through union animus, but regardless.

[00:14:32] Speaker 07:
there's nothing else to suggest a continuing effort or attempt to violate employees' rights.

[00:14:40] Speaker 05:
Suppose that it was for union animus, as the board found.

[00:14:44] Speaker 05:
And what is your answer to that?

[00:14:46] Speaker 05:
Why is that not your hallmark violation?

[00:14:48] Speaker 07:
It's not a hallmark violation that destroyed the laboratory conditions.

[00:14:53] Speaker 05:
It's not a hallmark violation.

[00:14:54] Speaker 05:
Hallmarks, you're saying?

[00:14:56] Speaker 05:
I'm sorry?

[00:14:56] Speaker 05:
There are hallmarks and there are hallmarks.

[00:14:59] Speaker 05:
And they're all fair labor practices that aren't hallmarks, but that might cumulatively be sufficient anyway.

[00:15:06] Speaker 07:
That's not what the board based its decision on.

[00:15:09] Speaker 07:
They can't rewrite their decision now through argument.

[00:15:11] Speaker 05:
I don't think the word hallmark appears in their decision.

[00:15:13] Speaker 05:
I'm sorry?

[00:15:14] Speaker 05:
I don't think the word hallmark appears in the decision or in any one, except our own decision.

[00:15:20] Speaker 07:
Yes, it does, Your Honor.

[00:15:21] Speaker 05:
In this case?

[00:15:23] Speaker 07:
It absolutely does.

[00:15:24] Speaker 07:
The board very expressly says the grant of benefits in particular is a homework violation.

[00:15:32] Speaker 05:
But you're saying that it's not.

[00:15:33] Speaker 05:
I mean, pardon me, that it's not a violation on these facts.

[00:15:37] Speaker 07:
I'm saying the D.C.

[00:15:37] Speaker 07:
Circuit says it's not.

[00:15:39] Speaker 05:
Well, you mean Skyline.

[00:15:40] Speaker 05:
Correct.

[00:15:41] Speaker 05:
Yeah.

[00:15:41] Speaker 05:
Well, all right.

[00:15:42] Speaker 05:
We've got three pages from the board distinguishing that.

[00:15:45] Speaker 05:
We can talk about it further.

[00:15:47] Speaker 05:
But I don't think we need to.

[00:15:50] Speaker 05:
Anything else?

[00:15:52] Speaker 05:
Okay, thank you.

[00:15:53] Speaker 07:
Thank you for.

[00:16:12] Speaker 06:
May proceed.

[00:16:13] Speaker 03:
May it please the court, Kimberly Weber for petitioner, local joint executive board, also intervener for respondent.

[00:16:20] Speaker 03:
Today I will refer to the party as the union.

[00:16:24] Speaker 03:
And I would like to reserve three minutes of my time for rebuttal.

[00:16:31] Speaker 03:
So the casino's violations in this case were profound.

[00:16:36] Speaker 03:
there was a monumental grant of benefits, followed directly by threats that the union properties would lose all of those benefits and not be able to gain them through bargaining.

[00:16:51] Speaker 03:
The board correctly found that these violations were deliberate and prolific.

[00:16:56] Speaker 03:
Overcoming the harm that the casino inflicted will take substantial effort.

[00:17:02] Speaker 03:
The union asks the court to enforce the order

[00:17:06] Speaker 03:
and to remand the case to the board to consider additional remedies as argued in the union's opening brief.

[00:17:13] Speaker 03:
The union recognizes that the Labor Board has broad discretion with respect to remedies, and if the court were to question the union about what is more important, it is affirming the order, because without the core remedies, the additional remedies would mean little.

[00:17:30] Speaker 06:
So are you suggesting that without the union access remedy, there's no way to repair the relationship with Red Rock?

[00:17:36] Speaker 03:
That is our argument because of the deep and substantial harm that was inflicted by the messaging between the union and the employees.

[00:17:48] Speaker 03:
The union access will help.

[00:17:49] Speaker 03:
As I say, the core remedies in the board's current order are the more important remedies.

[00:17:54] Speaker 04:
But the NLRB knows more about this than we do.

[00:17:57] Speaker 04:
If they thought that certain remedies were appropriate, who are we to say, no, we need more?

[00:18:02] Speaker 03:
I understand the standard review for remedies.

[00:18:07] Speaker 03:
But it is the union's argument that if we look at board law as argued in our brief, if you look at board law and look at the facts of this case, that those additional remedies are justified under board law and should have been awarded here.

[00:18:20] Speaker 04:
I don't hear you arguing very hard for what you said in your brief.

[00:18:27] Speaker 03:
I do believe that they are warranted.

[00:18:30] Speaker 03:
But as I say, the core of this case is the remedies that have already been awarded.

[00:18:36] Speaker 03:
The most important remedy that the union has requested is the right to reply.

[00:18:41] Speaker 03:
There was significant captive audience work in violations in this particular case.

[00:18:48] Speaker 03:
had the union had the right to reply, it would have made a huge difference and perhaps we would not be here today.

[00:18:55] Speaker 05:
How long elapsed from the election until the board's decision?

[00:19:05] Speaker 03:
Until the board's decision.

[00:19:06] Speaker 03:
So the election was held on December 19th and 20th of 2019.

[00:19:10] Speaker 03:
The board's decision was June 17th, 2020.

[00:19:16] Speaker 05:
And do you have, is there in the record any information on the turnover among the employees during that period?

[00:19:25] Speaker 03:
There has been turnover among the employees that is not in the record.

[00:19:32] Speaker 05:
It's not in the record?

[00:19:33] Speaker 05:
No.

[00:19:33] Speaker 05:
It's in the union's possession?

[00:19:37] Speaker 03:
There is currently another separate labor board charge regarding recalls after the pandemic.

[00:19:45] Speaker 05:
Turn the record in that.

[00:19:49] Speaker 03:
Yes, it is the change of the composition of the unit was not a issue that was raised by the petitioner Red Rock in this case.

[00:19:57] Speaker 03:
And it's not in this record.

[00:20:00] Speaker 03:
Okay, thank you.

[00:20:00] Speaker 03:
Thank you.

[00:20:01] Speaker 06:
Do union access remedies always have to accompany a bargaining order where the board finds the conduct severe and pervasive?

[00:20:08] Speaker 03:
No, they have not always accompanied a bargaining order.

[00:20:14] Speaker ?:
Thank you.

[00:20:28] Speaker 01:
Morning.

[00:20:29] Speaker 01:
May it please the court, Eric Weitz on behalf of the National Labor Relations Board.

[00:20:33] Speaker 01:
I'd like to start just addressing the unfair labor practices briefly.

[00:20:37] Speaker 01:
I think we can largely rest on the board's brief and the decision in this case.

[00:20:42] Speaker 01:
But just to go to the grant of benefits, which I'd emphasize is really a constellation

[00:20:47] Speaker 01:
of dozens of violations, which was the announcement and promise of benefit, the subsequent threats that these benefits could go away, and the related threats that if the employees voted for a union and tried to engage in collective bargaining, that that would be futile.

[00:21:03] Speaker 01:
So the board looked at all of these together and found that this is really a textbook example of an employer who knows that the union has a majority support and is likely to win an election and thus pulls out all the stops to coerce them and to prevent them from doing so.

[00:21:21] Speaker 01:
In terms of the timing, our brief goes into the evidence in greater detail, which other courts look at.

[00:21:28] Speaker 01:
But just to highlight some key pieces of evidence, Joint Appendix 725 is an email from August 2019 where the employer's senior managers are sharing their gloomy assessment that the union has significant majority support and is almost certain to win an election.

[00:21:47] Speaker 01:
That is before the new manager was brought in with the specific task of instilling a new anti-union campaign and when all of this benefits discussion started.

[00:21:58] Speaker 01:
So this is not a situation where the employer was doing this for legitimate business reasons.

[00:22:03] Speaker 01:
All of this occurred in response to the ongoing union organizing at Red Rock in particular and stations, casinos, properties more broadly.

[00:22:12] Speaker 01:
Once the process was underway, there's a mountain of evidence that the specific intent of these benefits, the way they were designed, the way they were modeled on union proposals and union contracts of their facilities, and the timing of the announcement were to kill the union drive and to dissuade employees from voting for the union.

[00:22:32] Speaker 01:
And to go to your earlier question, Judge Pan, that is a violation of the act to grant benefits to dissuade employees from unionizing.

[00:22:41] Speaker 01:
The Supreme Court upheld that in exchange parts.

[00:22:43] Speaker 01:
This court has upheld that.

[00:22:45] Speaker 01:
And there is more than sufficient evidence, more than substantial evidence in this case, supporting the board's decision.

[00:22:52] Speaker 01:
I'll just briefly touch on Skyline and your question, Judge Ginsburg.

[00:22:57] Speaker 01:
The board did here note that this grant of benefits can be a hallmark violation.

[00:23:03] Speaker 01:
That's not a necessary classification.

[00:23:05] Speaker 01:
We don't need to take a formalistic approach, whether this was Hallmark or not.

[00:23:09] Speaker 01:
The question is ultimately the facts of this case.

[00:23:12] Speaker 01:
And the facts of this case are very different from Skyline.

[00:23:15] Speaker 01:
Skyline was a situation where this court did affirm the unfair labor practice finding sort of begrudgingly.

[00:23:22] Speaker 01:
And factually, the court found that that was a situation where the employer had independently decided to lift a wage freeze before it even knew union organizing was going on.

[00:23:32] Speaker 01:
And then there was no election petition pending.

[00:23:35] Speaker 01:
And when the employer announced that decision, which was made prior to the union, the board found a violation.

[00:23:42] Speaker 01:
This is completely different given the factual record and the wealth of evidence of the employer's unlawful motives and simply the scale of what was occurring here.

[00:23:53] Speaker 01:
This was a sweeping benefits package.

[00:23:55] Speaker 01:
which completely overhauled all of the employees' benefits and was tailored to do so to coerce the employees from not voting for a union, both through promises of benefits and the related threats, which also are central to this case, and we're not in a skyline, where the promise of benefits will follow it up by clear coercion throughout the bargaining unit that these benefits are going to be on the bargaining table and likely to go away if you vote for a union.

[00:24:21] Speaker 06:
Could we affirm under Gissell, without reaching the COMEX issue,

[00:24:25] Speaker 01:
You could, your honor.

[00:24:27] Speaker 01:
But the board would urge the court to affirm both rationales.

[00:24:32] Speaker 01:
And the reason for that is, first of all, they're remedying different things.

[00:24:38] Speaker 01:
The inquiries are completely different, even though at the end of the day, you get to a bargaining order.

[00:24:43] Speaker 01:
So a CEMEX

[00:24:44] Speaker 01:
bargaining order under the board's new framework is essentially looking backward in time and saying in December of 2019, it's undisputed at this point that the union had a majority support in the bargaining unit or prior to December 2019 and all then for labor practices.

[00:25:01] Speaker 01:
the union had majority support as shown by cards known as disputing the validity of those cards they were extensively litigated and it is now conclusively shown that the union had valid majority support they demanded recognition as their entitles you under section 9a of the act and the employer refused voluntary recognition so what the board's new framework says is that

[00:25:24] Speaker 01:
The employer can insist on an election to test the majority status.

[00:25:29] Speaker 01:
Elections remain the preferred way of determining a union's majority.

[00:25:34] Speaker 01:
But if the employer then sabotages that initial timely opportunity to see in a fair and free election

[00:25:41] Speaker 01:
to confirm that these employees want a union, an employer should not be allowed to profit from that delay and should not be incentivized to engage in those kinds of unfair labor practices.

[00:25:52] Speaker 01:
So that is a violation that occurred and was complete as of the refusal to bargain and the interference with the election.

[00:25:59] Speaker 04:
But is it fair for us to apply the CEMEX standard

[00:26:03] Speaker 04:
To red rock when some X wasn't in existence at the time that any of these events occurred, because I guess some X says that what the employer should do if they want to test.

[00:26:16] Speaker 04:
The certificates is demand an election, but how is red box post to know that that was the correct procedure when some X hadn't been decided.

[00:26:24] Speaker 01:
Well, the reason it is fair, Your Honor, is to that question, there's two aspects of CEMEX, one of which isn't at issue here.

[00:26:31] Speaker 01:
So part of CEMEX, the board said, when faced with a demand for recognition from a majority union, an employer now has an obligation to file its own election petition in a timely manner.

[00:26:43] Speaker 01:
That was overruling the board's Clinton lumber decision, which the Supreme Court affirmed as not arbitrary and depreciate.

[00:26:49] Speaker 01:
So that rule is not at issue here because the union filed its own petition.

[00:26:54] Speaker 04:
But even if it's not at issue, it just seems a little unfair to impose a standard that they were not.

[00:27:00] Speaker 04:
I know that board law says things are retroactive.

[00:27:04] Speaker 04:
But it just seems to me that it seems a little unfair to say that we're going to impose this whole framework upon you that you never knew about at the time.

[00:27:15] Speaker 01:
I think if this had been a case where Red Rock was being faulted for not filing a petition, then there may be a stronger retroactivity argument there.

[00:27:25] Speaker 01:
Because they could say, we were relying on Linden Lumber

[00:27:28] Speaker 01:
Lyndon Lumber said this is totally lawful for us to just wait for the union to file.

[00:27:33] Speaker 01:
That would be more of a retroactivity issue.

[00:27:35] Speaker 01:
The reason it's not unfair here is because the basis for the CEMEX bargaining order is that the union filed for an election, the election machinery was underway, and the employer then engaged willfully in dozens of violations of federal law.

[00:27:50] Speaker 01:
That's the basis for the CEMEX order here.

[00:27:53] Speaker 04:
And so it's a well established regardless of how that election came about.

[00:27:58] Speaker 04:
The election came back and there was right.

[00:28:00] Speaker 01:
And so this isn't a situation where an employer acted in good faith on what the law was at the time and is now being penalized for doing something that was lawful at the time.

[00:28:11] Speaker 01:
This is a situation where the CEMEX bargaining order is based on violations of federal law.

[00:28:16] Speaker 01:
And it's a well-established principle that in the retroactivity context that a respondent cannot claim, you know, I violated the law, but I only did so because I thought the remedies would be inadequate or there would be a different result at the end of the day.

[00:28:32] Speaker 01:
which is central to the board's reasoning in adopting the CEMEX framework, which is that under the pre-CEMEX sort of GISSEL framework, employers were incentivized to violate federal law, commit these unfair labor practices, because they get the benefit of delay.

[00:28:47] Speaker 01:
They then get a second bite at the apple first to get out of a GISSEL bargaining order, which is much more difficult to show and has become more difficult over time.

[00:28:57] Speaker 01:
And if they don't,

[00:28:58] Speaker 01:
that they avoid a Gissell bargaining order, then they get a second bite at the apple with a rerun election years later, much to their advantage.

[00:29:06] Speaker 01:
And even if they get a Gissell bargaining order, it's simply telling them to do what they were obligated to do years earlier when their employees chose to be represented by a union and presented proof of majority support, non-election proof of majority support.

[00:29:22] Speaker 04:
And so- Is it fair to say that Gissell allows

[00:29:26] Speaker 04:
unfair labor practices as long as they're not egregious.

[00:29:30] Speaker 01:
I mean, I wouldn't use the word egregious, but I would agree that it's much harder to establish the basis for a GISSEL bargaining order.

[00:29:39] Speaker 01:
Because whereas the CEMEX framework I was just discussing is looking backward in time, did the employer sabotage this timely initial election?

[00:29:48] Speaker 01:
GISSEL asks, and this is a policy choice made by the board during the GISSEL litigation, GISSEL asks, is there any way

[00:29:57] Speaker 01:
looking forward that we can now hold a new election where the employees won't still be coerced.

[00:30:02] Speaker 01:
And that's why this court over many decades have imposed a series of requirements that the board needs to take into account, employee turnover, change circumstances.

[00:30:11] Speaker 01:
It's more akin to an extraordinary remedy.

[00:30:15] Speaker 01:
This court has called it that at times.

[00:30:17] Speaker 01:
The board would not agree with that framing, but it's much harder to show that years later we cannot have new free election.

[00:30:27] Speaker 01:
And so the board has reviewed, you know, the board has experienced for decades the application of this framework and applying its expertise to the situation in CEMEX concluded that this framework simply is not working.

[00:30:40] Speaker 01:
It is not disincentivizing unfair labor practices which allow for timely free elections, which is what

[00:30:47] Speaker 01:
you know, we want under the act and that we need to adopt this new framework because if anything, the prior framework was incentivizing employers to engage in this kind of misconduct during election campaigns because they know that they can get away with it or have a good chance of getting away with it.

[00:31:05] Speaker 01:
And so CEMEX better effectuates employee-free choice because in 2019... It takes away their ability to have a new election.

[00:31:16] Speaker 04:
That's the downside, right?

[00:31:18] Speaker 01:
Well, it does, Your Honor.

[00:31:19] Speaker 01:
So the board certainly is weighing those two factors.

[00:31:22] Speaker 01:
But this is something that the board has weighed and reached the same conclusion with Supreme Court approval going all the way back to the Four East.

[00:31:30] Speaker 01:
So I'd point the courts, particularly to the Franks Brothers case, the Lorillard case, and then Gisle, which reaffirms.

[00:31:37] Speaker 04:
I understand that the board has broad discretion and expertise, et cetera.

[00:31:42] Speaker 04:
But it just seems to me that if

[00:31:44] Speaker 04:
the election would take place many years later, as in this case.

[00:31:48] Speaker 04:
It's not clear to me that you couldn't have a fair election.

[00:31:53] Speaker 04:
Like, there's an assumption.

[00:31:54] Speaker 04:
It's kind of like a strict liability standard that you're proposing.

[00:31:59] Speaker 01:
Well, it's not, Your Honor.

[00:32:00] Speaker 01:
The point of the CEMEX framework is just to ask a different question, which is that in 2019, it's undisputed that these employees in this bargaining unit wanted to be represented by a union under the act

[00:32:13] Speaker 01:
You know, a strict reading of Section 9A and Section 8A5 would say the employer immediately, in terms of sort of strict liability, has to bargain with that majority union.

[00:32:24] Speaker 01:
In CEMEX, the board is saying we're not going to apply that kind of strict liability.

[00:32:28] Speaker 01:
We're going to allow an employer to say, I want an election to confirm this majority.

[00:32:33] Speaker 01:
But you only get one bite at the apple.

[00:32:35] Speaker 01:
If you then sabotage that initial election, such that the board has to invalidate the results,

[00:32:40] Speaker 01:
then all you've done is refuse to bargain with the majority union, which is a violation of the act, and the appropriate remedy, which is what Frank's brothers and Lorillard and Gissell reaffirm, is that you issue a bargaining order, even if there's been changes.

[00:32:56] Speaker 04:
It's a bit harsh.

[00:32:57] Speaker 04:
And if

[00:32:58] Speaker 04:
For example, there's one ULP during the election period.

[00:33:04] Speaker 04:
Maybe it's not that bad of one, because we've been discussing the range of ULPs that are available.

[00:33:09] Speaker 04:
And now there's an opportunity for an election five, eight years later, because the board doesn't act very quickly sometimes.

[00:33:19] Speaker 04:
But your assumption is that we can't have a fair election.

[00:33:22] Speaker 04:
It seems like the underlying assumption is you can't have a fair election.

[00:33:26] Speaker 01:
Well, two points to that, Your Honor.

[00:33:29] Speaker 01:
First, I just note in passing that, just emphasize that a single UOP doesn't necessarily justify a summons bargaining order.

[00:33:36] Speaker 01:
It's not a kind of strict liability like that.

[00:33:37] Speaker 01:
You still have to make a showing that the employer destroyed the laboratory conditions of the election.

[00:33:43] Speaker 01:
But assuming that is shown, which it is a lower threshold than a GISSEL bargaining order, the board's reasoning is not that

[00:33:51] Speaker 01:
per se, you cannot have a future election that's fair.

[00:33:55] Speaker 01:
The board is instead saying we don't need to look at whether another election is possible.

[00:34:00] Speaker 01:
A violation occurred of the employees who wanted a union in 2019 and the appropriate remedy, even though time has passed, the composition of the unit may have changed.

[00:34:09] Speaker 01:
The only way to avoid

[00:34:12] Speaker 01:
effectuating the original employee choice and preventing the employer from profiting from the delay is a bargaining order.

[00:34:18] Speaker 01:
That's what Frank Brother says, so I would direct the court in particular to that case, because the Supreme Court very clearly affirms the board's longstanding approach that, yes, some could say this is unfair to the employees now,

[00:34:31] Speaker 01:
But this is the only way to effectuate the policies of the act.

[00:34:34] Speaker 01:
And moreover, it's not an undue burden on the employees now, even if we assume, say, that the employees change their minds and a majority now doesn't want a union.

[00:34:43] Speaker 01:
A bargaining order is not an undue burden because it's not a permanent relationship.

[00:34:48] Speaker 01:
This is only a temporary

[00:34:51] Speaker 01:
bargaining order for a reasonable period of time for the union to reestablish a foothold in the bargaining unit and so after that reasonable period of time if the employees don't want a union then they can file a petition for to decertify the union or to remove the union and we can have an election that way.

[00:35:06] Speaker 01:
But the best way to effectuate the policies of the act is to say, the employer violated the act when it initially refused to bargain with a majority union.

[00:35:16] Speaker 01:
That's a textbook violation of Section 9A and Section 8A5.

[00:35:20] Speaker 01:
And so we're going to order them to bargain despite the unfortunate delay that's unavoidable.

[00:35:25] Speaker 01:
And so that's the best way of effectuating employee choice in the board's reasonable view.

[00:35:30] Speaker 01:
And I see that I'm- That's all correct.

[00:35:33] Speaker 04:
Why should we?

[00:35:34] Speaker 04:
I mean, we have two alternatives.

[00:35:36] Speaker 04:
options here.

[00:35:37] Speaker 04:
Why should we address CEMEX?

[00:35:40] Speaker 01:
Right.

[00:35:41] Speaker 01:
So thank you, Your Honor.

[00:35:43] Speaker 01:
I didn't get to that earlier.

[00:35:44] Speaker 01:
So the two reasons that we would urge the court to affirm under both rationales, first is that they're addressing different things.

[00:35:53] Speaker 01:
They're distinct analyses.

[00:35:54] Speaker 01:
But secondly, just as a practical matter, there's certainly a likelihood in this case that the employer, for example, could seek further review.

[00:36:02] Speaker 01:
of one or the other.

[00:36:03] Speaker 01:
And so if the court were to rest on just one rationale, which may be subject to further review, and say that were to then be reversed on further review, then it would simply delay this process even further, which the whole point here is to avoid.

[00:36:19] Speaker 04:
It seems that there wouldn't be further review if you're talking about the Supreme Court, if we only rely on Gazelle.

[00:36:25] Speaker 01:
Well, I mean, the employer could see further review in this court or to the Supreme Court.

[00:36:32] Speaker 04:
And I don't think there would be further review if we relied just on Gizelle.

[00:36:38] Speaker 04:
Whereas CEMEX is new and maybe.

[00:36:41] Speaker 01:
Understood.

[00:36:42] Speaker 01:
I mean, I think it's difficult to say.

[00:36:44] Speaker 01:
So I just think there's a pragmatic reason that the board included both in its order, which is that number one, they're remedying different violations essentially, even though at the end of the day it's a bargaining order.

[00:36:56] Speaker 01:
But it's also they're both necessary in this case to fully remedy the misconduct that occurred.

[00:37:02] Speaker 04:
They're not both necessary because if we uphold the bargaining order under Gazelle,

[00:37:09] Speaker 01:
Well, I take Your Honor's point that at the end of the day, the employer and complying with the order would be doing the same thing.

[00:37:17] Speaker 01:
But the board, you know, found different violations, issued different remedies.

[00:37:22] Speaker 01:
It's akin to, you know, if the board finds multiple Section 8A1 violations, typically the remedy for that is just a notice posting.

[00:37:30] Speaker 01:
In some sense, there's nothing else required with the floor.

[00:37:34] Speaker 04:
There's no additional remedy that hinges on CEMEX that doesn't rely also on Gazelle.

[00:37:38] Speaker 04:
Is that what you're trying to say?

[00:37:40] Speaker 01:
Yes.

[00:37:40] Speaker 01:
Well, they're independent.

[00:37:42] Speaker 04:
Well, there are two rationales for a single remedy, which is the bargaining order.

[00:37:46] Speaker 04:
Or am I missing something?

[00:37:47] Speaker 01:
Well, I guess that's correct, Your Honor.

[00:37:49] Speaker 01:
But there are two violations that, at the end of the day, the employer has to do the same thing under both.

[00:37:55] Speaker 01:
So you're totally right that... It seems it would be superfluous to reach CEMEX.

[00:38:02] Speaker 01:
I think it's not for the reasons I'm describing.

[00:38:06] Speaker 01:
I understand your honor's skepticism of the practical considerations.

[00:38:10] Speaker 04:
I guess the bottom line is the remedy.

[00:38:11] Speaker 04:
And if we uphold the remedy under Giselle, you get nothing more or less if we address CEMEX.

[00:38:19] Speaker 04:
I still see why we would do that.

[00:38:21] Speaker 01:
We would be on more secure footing in the opinion that the court issues to shield against further review or other eventualities.

[00:38:28] Speaker 04:
So that's the only benefit.

[00:38:31] Speaker 01:
And I think to fully enforce and affirm the board's decision, but I agree as a practical matter, if the court wanted to avoid one, it would not be fully affirming the board's rationale and decision, but the employer would be required to do the same thing either way.

[00:38:47] Speaker 05:
I think if the board wants to roll the dice on CEMEX, it's going to have to issue a decision based entirely on CEMEX.

[00:38:53] Speaker 05:
I don't think any court of appeals is going to accept your suggestion.

[00:38:57] Speaker 05:
Well, before I take it around.

[00:38:58] Speaker 05:
Completely inconsistent with ordinary practice.

[00:39:02] Speaker 06:
And I want to offer you the opportunity to answer the question that I gave to your friend on the other side about, where is the line drawn with respect to what employers can do without interfering and coming to an unfair labor practice?

[00:39:16] Speaker 01:
With, in general, Your Honor?

[00:39:18] Speaker 06:
Yeah, just in general.

[00:39:19] Speaker 06:
And you can use these as examples about where you think it really pushed it, because obviously they don't agree that this was the case.

[00:39:27] Speaker 01:
Sure.

[00:39:28] Speaker 06:
Well, I guess it depends on the particular type of thing employers can do to discourage union activity lawfully.

[00:39:38] Speaker 01:
Well, absolutely, Your Honor.

[00:39:40] Speaker 01:
Section 8C of the Act, as in the statute, protects the free expression of viewpoints and opinions by the employer.

[00:39:48] Speaker 01:
So employers are certainly entitled to communicate to their employees.

[00:39:52] Speaker 01:
We're opposed to the union.

[00:39:54] Speaker 01:
Here are the reasons we think unions would not be beneficial, et cetera.

[00:39:59] Speaker 01:
But there's many ways to cross a line.

[00:40:01] Speaker 01:
An employer needs to be careful that it doesn't fall over that line, as the Supreme Court said in Gissell.

[00:40:06] Speaker 01:
And so certainly, you cross that line, for example, in this case, where you go beyond rhetoric and actually engage in threats or coercion, interrogation.

[00:40:16] Speaker 01:
Or here, we go far beyond rhetoric because it's the actual promise and subsequent follow through and grant of a sweeping benefits package.

[00:40:26] Speaker 01:
So I think I would direct the court to Gissell has an explanation of Section 8C does protect employer's speech.

[00:40:34] Speaker 06:
So you're relying highly on statements specifically and then also the timing and the execution.

[00:40:41] Speaker 01:
Yes.

[00:40:42] Speaker 01:
So in this case, there were a bunch of violations.

[00:40:45] Speaker 01:
And so you have numerous instances of promises of benefits before the election, threats that those benefits, the promise would be taken away.

[00:40:53] Speaker 01:
And then when the employer actually followed through and rewarded the employees for voting against the union, that's also a distinct violation of the act.

[00:41:01] Speaker 06:
And then finally, the miscellaneous ULPs, how does that fit into here with respect to anything that we need to do with those?

[00:41:10] Speaker 01:
Which violations in particular, Your Honor?

[00:41:12] Speaker 01:
I'm sorry.

[00:41:13] Speaker 06:
Just the ones that they're raising.

[00:41:14] Speaker 06:
Do we need to adjudicate those to find that they have substantial evidence to support them or not?

[00:41:19] Speaker 01:
Or is the order... Well, yes, we would ask the courts to affirm all the findings because there are distinct remedies even for the more minor violations, which might even just be a line in the notice posting.

[00:41:31] Speaker 01:
So there would be a remedial notice if the court enforces the... What's the back pay issue here for powers?

[00:41:37] Speaker 01:
Excuse me, Your Honor?

[00:41:38] Speaker 05:
What's the back pay issue for powers?

[00:41:40] Speaker 01:
Yes, there's a back pay issue for Ms.

[00:41:43] Speaker 01:
Powers.

[00:41:43] Speaker 01:
There's also a back pay issue.

[00:41:45] Speaker 01:
There's an uncontested violation where after the election, the employer unilaterally cancels the table swap agreement, which is a way that some servers could make extra money.

[00:41:54] Speaker 01:
So there's make whole relief for that.

[00:41:57] Speaker 01:
And there's just additional remedies for each of these violations.

[00:42:00] Speaker 01:
So our position before the court is that substantial evidence supports all of the board's

[00:42:05] Speaker 01:
findings, and so the court should enforce the border in full as written.

[00:42:10] Speaker 01:
And I see I'm well over time, so I don't, unless the court has any further questions, I would note if there's any questions about agency deference, it was covered in the briefing, and I'm happy to discuss.

[00:42:20] Speaker 01:
But otherwise, we would just rest on the brief and ask for enforcement in full.

[00:42:26] Speaker 00:
Thank you.

[00:42:40] Speaker 03:
Okay.

[00:42:41] Speaker 03:
Thank you.

[00:42:41] Speaker 03:
And then back to present the union's case as an intervener at this time.

[00:42:46] Speaker 03:
Section 8C of the act gives employers substantial leeway to campaign against a union.

[00:42:53] Speaker 03:
But there is a limitation in section 8C.

[00:43:00] Speaker 03:
And that is that the expression cannot contain any threat of reprisal or force or promise of benefits.

[00:43:06] Speaker 03:
that is the line that the casino clearly crossed in this case.

[00:43:11] Speaker 03:
Much of the casino's challenges in this case are covered as the court has already suggested by the substantial evidence review standard.

[00:43:22] Speaker 03:
The board found that the casino did know of the union organizing campaign.

[00:43:27] Speaker 03:
The board found that the casino designed

[00:43:29] Speaker 03:
its benefits campaign to undermine union support, not for legitimate business reasons.

[00:43:35] Speaker 03:
The board found that the casino did make threats through its managers and its supervisors.

[00:43:41] Speaker 03:
And I could go on and on.

[00:43:43] Speaker 03:
Most of that is covered.

[00:43:46] Speaker 03:
With regards to the bargaining orders,

[00:43:51] Speaker 03:
It is the union's position that in this case, this promise or grant of benefits is a hallmark violation.

[00:44:00] Speaker 03:
The union has said before in its briefing that it believes that the exact timing of the grant of benefits and pinning that down is a distraction.

[00:44:10] Speaker 03:
The decision itself was made at a time and unannounced, and so the employees did not know.

[00:44:15] Speaker 03:
The harm to employees occurs when they find out about the grant of benefits.

[00:44:21] Speaker 03:
That occurred after the petition was filed.

[00:44:26] Speaker 03:
While GISSEL is sufficient in this case, CEMEX is a return to a prior framework that will have great implications for the union in its organizing at station casinos and against this casino in the future.

[00:44:41] Speaker 06:
Thank you.

[00:44:41] Speaker 06:
Okay, the case is submitted.

[00:44:51] Speaker 07:
I'm sorry.

[00:44:52] Speaker 07:
I had 1 minute.

[00:44:53] Speaker 07:
Thank you.

[00:44:54] Speaker 06:
I forgot about that.

[00:45:01] Speaker 07:
Briefly, Your Honors, I would encourage you to read carefully this circuit's prior decisions regarding GISSEL.

[00:45:08] Speaker 07:
I would encourage this court to read and if you're so inclined to listen to the actual statements that were made by some of these supervisors and managers in context, not just accept the board's characterization and hyperbole of it.

[00:45:24] Speaker 07:
Gissell is much more than just the substance of the violations.

[00:45:28] Speaker 07:
Gissell also looks at can a fair election be had, right?

[00:45:32] Speaker 07:
Can it be had?

[00:45:33] Speaker 07:
It's been almost six years.

[00:45:35] Speaker 07:
There's been a 10-J in place.

[00:45:38] Speaker 07:
There's been no unfair labor practice findings.

[00:45:42] Speaker 07:
There's been no disposing.

[00:45:43] Speaker 07:
There's been no disreading.

[00:45:44] Speaker 07:
The expense of requests.

[00:45:46] Speaker 05:
Record on that here.

[00:45:47] Speaker 07:
I'm sorry?

[00:45:48] Speaker 05:
The sign on our record.

[00:45:51] Speaker 05:
We have your representation on the board's questioning of it.

[00:45:54] Speaker 05:
That's all.

[00:45:55] Speaker 05:
The 10-J record, what's happened under the injunction, is not in the record.

[00:46:01] Speaker 07:
It's connected to this case.

[00:46:02] Speaker 07:
It's referenced throughout.

[00:46:04] Speaker 05:
It arises from it, but it's not in this case.

[00:46:07] Speaker 07:
But it's referenced in the board's decision and the ALJ's decision, and the board is a party to it.

[00:46:15] Speaker 05:
That there is a 10-J.

[00:46:16] Speaker 05:
Whether you've complied fully with it is not unquestioned.

[00:46:20] Speaker 07:
Well, we would submit that you can take judicial notice, certainly, of the compliance that was done in that case through the affidavit submitted in that court.

[00:46:32] Speaker 07:
What was Red Rock supposed to do here?

[00:46:35] Speaker 07:
What were they supposed to do with ongoing union activity?

[00:46:39] Speaker 07:
What does any employer in an industry in an area like Las Vegas that's heavily unionized and people wear union buttons and union shirts?

[00:46:47] Speaker 07:
You can let them unionize.

[00:46:49] Speaker 07:
You can let them unionize, but does the law require you to do that?

[00:46:52] Speaker 07:
No, the law doesn't require you to do that.

[00:46:54] Speaker 04:
And so it seemed to me that Red Rock was just not aware of what the law required, or else it would not have been so overtly anti-union.

[00:47:02] Speaker 04:
There are better ways to do to accomplish what it was trying to accomplish.

[00:47:07] Speaker 07:
And I will end this unless you have further questions with this.

[00:47:11] Speaker 07:
It's not unlawful to be anti-union.

[00:47:14] Speaker 07:
And that's the board's case, right?

[00:47:15] Speaker 07:
That's what they're saying.

[00:47:16] Speaker 07:
It's unlawful to interfere with, restrain, or coerce employees.

[00:47:19] Speaker 07:
And so I think if that is kept in mind, I think... That's why I asked the question on the other side about what...

[00:47:25] Speaker 06:
can you do to challenge it?

[00:47:27] Speaker 06:
And they said that it was fine from a free speech standpoint to say what's bad about a union or why you would not want to join.

[00:47:35] Speaker 07:
Right, right.

[00:47:36] Speaker 07:
And many years ago, before the amendments, there was no such protection.

[00:47:40] Speaker 07:
Employers could not speak.

[00:47:42] Speaker 07:
And the law developed to such a point where

[00:47:45] Speaker 07:
Employers said, hey, we have First Amendment rights, right?

[00:47:48] Speaker 07:
We have free speech rights.

[00:47:49] Speaker 07:
So it was changed.

[00:47:50] Speaker 07:
It was codified to incorporate the First Amendment.

[00:47:52] Speaker 07:
So that is a defining line here.

[00:47:57] Speaker 07:
It's not unlawful to be anti-unit.

[00:47:59] Speaker 07:
It's unlawful to interfere with, restrain, or coerce employees.

[00:48:02] Speaker 07:
Thank you for your time.

[00:48:06] Speaker 06:
All right.

[00:48:07] Speaker 06:
Now the case is submitted.