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

By Michael Mishak

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

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.”