MEI-GSR HOLDINGS, LLC D/B/A GRAND SIERRA RESORT & CASINO/HG STAFFING, LLC,

Docket Number32-CA-134057

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino/HG Staffing, LLC and Tiffany Sargent. Case 32–CA–134057

May 16, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On May 4, 2015, Administrative Law Judge Gerald M. Etchingham issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Charging Party filed a statement in support of the judge’s decision.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order as modified.2

Facts

The Respondent operates a facility that includes a hotel, casino, restaurants, clubs, bars, and a pool, all open to the general public. Charging Party Tiffany Sargent was briefly employed by the Respondent as a “beverage supervisor,” a nonsupervisory position, from December 12 through late December 2012. After the conclusion of her employment, Sargent continued to socialize at the Respondent’s Lex Nightclub. The Respondent had a longstanding past practice of allowing former employees to patronize its facility and attend social functions, and

1 We find, in agreement with the judge, that as a former employee of the Respondent involved in a labor dispute relating to her former employment, Tiffany Sargent falls within the Act’s broad definition of “employee,” which includes applicants for employment, former employees, employees of other employers, and members of the working class, generally. Briggs Manufacturing Co., 75 NLRB 569, 570–571 (1947); see also Redwood Empire, Inc., 296 NLRB 369, 391 (1989); Little Rock Crate & Basket Co., 227 NLRB 1406, 1406 (1977).

Although the Respondent has excepted to the judge’s finding that it independently violated Sec. 8(a)(1) of the Act by sending Sargent’s counsel a letter on July 25, 2014 barring her from the property and threatening her with arrest for trespass, the Respondent has not briefed or provided legal support for its exception. Accordingly, we disregard the Respondent’s bare exception under Sec. 102.46(a)(1)(ii) of the Board’s Rules and Regulations. See Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). In addition, we find the Respondent’s initial denial to Sargent of access to the Nightclub in the beginning of July 2014 to be sufficiently distinct in both time and effect from its July 25, 2014 letter to Sargent’s attorney for the two events to constitute independent violations.

2 We shall substitute a new notice to conform to the Board’s standard remedial language and the violations found.

accordingly did not interfere with her visits. On June 21, 2013, Sargent and another employee, on behalf of themselves and other similarly situated employees, filed a class and collective action against the Respondent for unpaid wages, alleging violations under the Fair Labor Standards Act (FLSA) and Nevada law.3

Around the beginning of July 2014, the Respondent denied Sargent access when she attempted to attend an event held at the Lex Nightclub. The Respondent followed up with a letter on July 25, 2014, which stated in relevant part:

In light of the on-going litigation, we think it appropriate that Ms. Sargent be barred from the premises, absent order of the court. As such, please be advised that effective immediately, the Grand Sierra Resort hereby invokes NRS [Nevada Revised Statute] 207.200 (Unlawful Trespass Upon Land) and hereby revokes any permission to enter the premises . . . . Please advise your client of the trespass warning and kindly provide us with your assurance that absent the written consent of the Grand Sierra Resort, Ms. Sargent will no longer enter the premises.

Discussion

We find that the Respondent violated Section 8(a)(1) of the Act by denying Sargent access to its facility, contrary to its longstanding past practice of granting access to former employees as it would to any other member of the public. In so finding, we agree with the judge that the Respondent expressly retaliated against Sargent for engaging in the protected concerted activity of filing a class and collective action against the Respondent on matters concerning the workplace. The Respondent’s exclusion of Sargent, in response to her participation in protected concerted activity, would reasonably tend to chill employees from exercising their Section 7 rights. Upon observing or learning of this targeted action against the lead plaintiff in the FLSA lawsuit, the Respondent’s employees reasonably would conclude they, too, might be subject to reprisals and reasonably would be deterred from participating in a work-related lawsuit or other protected concerted activity. See Schwartz Mfg. Co., 289 NLRB 874, 878–879 (1988), enfd. 895 F.2d 415 (7th Cir. 1990).

We are not persuaded by our dissenting colleague’s arguments that the Respondent did not violate Section 8(a)(1); our dissenting colleague relies on a series of

3 The lawsuit included allegations that the Respondent violated federal wage and hour laws by requiring employees to clock out to avoid overtime while continuing to work the job for the Respondent. The number of representative plaintiffs had increased to six by the time the second amended complaint was filed on June 12, 2014.

365 NLRB No. 76

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

mischaracterizations of basic labor law principles. First, our colleague argues that, by excluding Sargent from her former place of employment, the Respondent did not “affect[] her wages, hours, or terms and conditions of employment.” But the relevant question under Section 8(a)(1) is not whether the Respondent affected Sargent’s wages, hours, or terms and conditions of employment, but whether (in the words of the Act) the Respondent has “interfere[d] with, restrain[ed], or coerce[d] employees in the exercise of the rights guaranteed in section 7.” As explained, the Respondent’s actions, taken in response to Sargent’s protected lawsuit, would have reasonably tended to interfere with employees’ exercise of their statutory rights.

Second, our dissenting colleague asserts that “the stipulated record provides no support for a finding that MEI’s action . . . interfered with any NLRA-protected conduct by Sargent or anyone else” and that the Respondent “was not motivated by those aspects of the FLSA lawsuit that implicated . . . Section 7 rights.” The basic test for an 8(a)(1) violation, however, is whether— regardless of intent—the employer engaged in conduct that reasonably tends to interfere with the free exercise of employee rights under the Act. Webasto Sunroofs, Inc., 342 NLRB 1222, 1223 (2004) (citing American Freightways Co., 124 NLRB 146, 147 (1959)). Accordingly, a finding of restraint or coercion does not depend on the subjective reaction of employees. Helena Laboratories Corp., 228 NLRB 294, 295 (1977). Likewise, the Respondent’s motivation is not relevant to our inquiry here.4

Third, our dissenting colleague states that “even such a retaliatory motive does not empower the NLRB to defend the interest that Sargent or others may have in pursuing their rights under a different statute.” But, as we have explained, our decision is concerned solely with the effectuation of rights under the Act. Sargent’s class action wage and hour lawsuit constituted a protected concerted activity, a fact that the Respondent concedes in its brief, and which is well-settled Board law. See, e.g., Le Madri Restaurant, 331 NLRB 269, 275 (2000). The Respondent’s interference with that activity, via its exclusion of Sargent from the premises “[i]n light of the on-going litigation,” necessarily implicated employees’ Section 7 rights.

Finally, our colleague accuses the majority of creating a “per se violation of the NLRA whenever any former

4 Contrary to our colleague’s assertion, it is also irrelevant that the Respondent did not take action against other employees who were involved in Sargent’s lawsuit. Nor is it necessary for Sargent to have visited the Nightclub to further her lawsuit for there to be interference with employees’ Sec. 7 rights.

employee pursuing a non-NLRA employment claim with one or more other employees is denied access to the employer’s private property.” We announce no such rule. Our holding is based on the unusual facts of this case, where the Respondent expressly retaliated against a former employee when it singled out Sargent precisely because of her protected concerted activity by denying her access to a commercial facility that was entirely open to the public. Had the Respondent barred Sargent from a private workplace, to which it had not granted routine and unfettered access to the public, the legal question before us would surely be different.

In addition, we reject our dissenting colleague’s argument that the Respondent had legitimate and specific employer business interests—including the avoidance of potential interactions prohibited by the court and workplace conflict—that were protected by the Nevada trespass law and outweighed its employees’ Section 7 rights. Initially, we observe that the judge found that the Nevada trespass law was inapplicable and that Sargent was not a trespasser, and that the Respondent neither excepted to the judge’s conclusion nor advanced any specific business justifications for its actions. Accordingly, the Respondent has waived any such argument which only our dissenting colleague has raised. As set forth in Section 102.46(a)(1)(ii) and (f) of the Board’s Rules and Regulations...

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