DAILY MEMO: LABOR:

Hard bargaining or bad faith at Wynn? It’s hard to say

Experts: Accusations are tough to prove

Wednesday, May 6, 2009 | 2 a.m.

No contract, but dealers benefit from going union (3-9-2009)
Tip-sharing cloud forming over Encore, Wynn critics say (8-7-2008)
For Wynn dealers, deal slow to come (6-24-2008)
Group opposing Wynn tip sharing plan to protest Culinary role (4-20-2008)
Union's plan: Win dealer's gratitude, then their votes (3-1-2008)
No win-win for Wynn, former dealer (2-27-2008)
The Card Dealer (11-19-2007)
Dealers sour on Caesars (11-1-2007)
Under the radar, Caesars dealers push for union (10-11-2007)
Duo bets on long shot (12-3-2006)

As dealers at Wynn Las Vegas enter their third year of bargaining with casino management over a union contract, two words can be found on the lips of both parties: bad faith.

Talks have been stalled for months on big-ticket items such as “just cause” for firing and tip sharing, and a compromise on either measure seems unlikely, given the tough rhetoric on both sides.

When talks stall, labor usually accuses management of not playing ball. But in a strange twist, it’s the lawyers for Wynn management who are complaining.

Wynn lawyers have filed an unfair labor practice charge with the National Labor Relations Board against the Transport Workers Union for “refusing to meet at reasonable times and places,” as required by federal labor law. They accused labor leaders of “surface bargaining,” the practice of exchanging proposals without any intention of reaching an agreement.

Labor leaders informally have made the same claim against management here and in Atlantic City. The United Auto Workers have been bargaining for dealers at four New Jersey casinos for more than two years.

Regardless of which side is complaining, labor experts say accusations of bad-faith bargaining are among the hardest to prove because courts and the labor board have defined the practice in general and ambiguous terms. Beyond that, financial penalties for a guilty party are virtually nonexistent.

Risa Lieberwitz, a professor of employment law at Cornell University and a former field attorney for the labor board, says it makes for a terribly unbalanced system that gives an “over-the-top” advantage to employers who don’t want to deal with unions.

A primer on the law:

The National Labor Relations Act merely requires both parties to “meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.” The law does not define the term “reasonable.”

As Cornell organizing expert Kate Bronfenbrenner put it, the law sends a simple message: try. Her research shows that many employers don’t. According to Bronfenbrenner, a third of workers lack a contract a year after voting for union representation. The lack of a financial remedy serves as an incentive for hostile employers to delay, experts say. Under the law, guilty parties are told to return to the table and to negotiate in good faith.

“There is no penalty, there is no injunctive relief,” Bronfenbrenner said. “You can have an employer that refuses to meet and talk and the worst penalty is another piece of paper saying, ‘Shame on you.’ ”

Generally, the federal labor board and the courts have taken a hands-off approach to bargaining. “The idea is that the parties will be more likely to reach an agreement they can both live with if it’s done voluntarily,” Lieberwitz said. “But this is obviously a problem if there is one party which wants to avoid reaching an agreement.”

The courts have defined some forms of bad faith, such as an outright refusal to bargain or refusing to respond to information requests. But savvy employers generally comply with the law’s clear obligations, with an eye toward “impasse,” Lieberwitz said. Once both sides are at loggerheads, the employer can unilaterally implement its “last, best and final” offer on core subjects, including wages.

And hard bargaining, Lieberwitz said, is not illegal.

The Employee Free Choice Act introduced in Congress this year could impose binding arbitration if both sides cannot agree on a contract in 120 days.

The U.S. Chamber of Commerce, which is leading the fight against the card-check legislation, says the arbitration provision represents an “unprecedented intrusion into the private sector by the government.”

Discussion: 12 comments so far…

By brownln4

5/6/09 at 8:22 a.m.

Suggest removal

I can't wait to see the results of all this bad faith negotiations after we get Obama's "Card Check" program enacted. All these new union members trying to get agreement with employers who don't care, fun times.
By neiman1

5/6/09 at 9:55 a.m.

Suggest removal

How could it be called negotiations if the government, elected by union donations, can come in and impose agreements. Those aren't agreements, they are government dictates, just like the banks agreeing to go along with the UAW give away in Detroit.
By bdover

5/6/09 at 11:33 a.m.

Suggest removal

It's Harry Reid's fault. Right Newman1?
By BigStack

5/6/09 at 11:55 a.m.

Suggest removal

No one is talking about the 600 lb gorilla in the room.

If the dealers what a contract, they'll have to strike for it. But that's never going to happen. Why? Because if they do, Wynn will have them replaced before the last one is out the door.

Now if the dealer struck, AND Culinary honored the picket line, the place would have to close, and then you'd see the dealers getting a contract. But that won't happen either. Why? Because there is a gentleman's agreement beween Culinary and the casinos. Culinary can have all the hotel and restaurant employees, but they keep their hands off the casino employees (meaning dealers. Culinary can have the cocktail waitresses). Why do you think it was the Transport Workers who organized the dealers?
By American_Gaming_Guru

5/6/09 at 12:36 p.m.

Suggest removal

Unions destroyed the auto industry and now they are focusing their paws on the gaming industry. Casino works in both markets have not realized these facts unfortunately. Unions are bad for business and ultimately bad for workers. Their time has come and gone in American enterprise.
By dave202

5/6/09 at 3:26 p.m.

Suggest removal

Card check is dead, thank God. But pressure on businesses to OK unions is not.

Culinary will never honor a picket line by dealers. Especially now that the transport workers has allied with Culinary's sworn enemy, the service workers union. They'll do everything they can to bust unions in the casino.

And BTW, it's NOT the casinos that refuse to bargain as we see in this story. The UNIONS don't want contracts either. They want to organize many other casinos so they have a hammer to get huge concessions from the industry. If they settle for an ordinary contract now, that becomes the yardstick and it's not enough power. Remember, unions aren't about making the lives of members any better, they are clearly about power and power alone.
By doubledown_deadender

5/7/09 at 7:26 a.m.

Suggest removal

Memo to union:

GM

Learn the lesson, this is not 1977.

End of memo.
By Bone_Daddy

5/7/09 at 12:13 p.m.

Suggest removal

Union Dues can not by law, and are not given to political use.

Well paid well treated happy employees is the key to the Las Vegas experience and one of the reasons I visit twice a year.

If I want a bad waitress I'll go to my local Denny's, if I want a min wage black jack dealer I'll go to the Indian reservation up the road.

If the "leaders" of the Las Vegas gaming industry reduce costs at the expense of the employee's quality of life I and the rest of us who visit you will stay away due to the inevitable drop in service quality.

MEMO to doubledown_deadender
We all can't be giving each other haircuts, there have to be good jobs that pay well or the American Dream dies.
By mrtmtrvlr

5/7/09 at 1:16 p.m.

Suggest removal

Wynn's employees used to be great. After trimming their pay %15 this year, they're angry, awful and antagonistic.

Let's do like Dubai and only hire foreign nationals to build and work in our casinos. We can hold their passports and they will work as slaves. This is what you anti-union folks want right? Because that's where things are headed.
By BeaTravis

5/7/09 at 3:28 p.m.

Suggest removal

I can't go to the Wynn since I have to fight thru so many drunks and hookers to get in and out of there. I have to go downtown now.
By buzzbomb

5/7/09 at 4:39 p.m.

Suggest removal

With housing costs plummeting so is the cost of living in LV. Ultimately this savings should pass thru to the guest in order to get Las Vegas going again in these hard times. If unions (incl. teachers) keep demanding more, unemployment will continue to rise.
By Aceupthesleeve

6/15/09 at 5:12 p.m.

Suggest removal

Truth: Unions didn't bring down GM.

GREED did. The bosses are the ones wanting more money.

A union is an easy target