From the moment the doors opened at Rivers Casino in 2009, hourly workers who provide hospitality services at the North Shore venue — food and beverage staff, valets, maintenance workers and others — have been trying to organize a union.
And it’s been an acrimonious seven years, marked by public mudslinging from both sides that spurred dozens of allegations against management filed with the National Labor Relations Board.
The regional office for the board — a federal agency that steps in to protect the rights of most private sector employees to organize for better working conditions — eventually found merit in 17 allegations, including that casino management has “swarmed, hovered and monitored workers” considering joining a union.
For the last eight years, the NLRB has been seen as quick to backstop labor causes nationally. Intervening in the Rivers Casino dispute was a low-impact move compared with larger, national mandates: Limiting what employers can say in employee handbooks, speeding up unionization elections, giving graduate research and teaching assistants at private universities the right to unionize, and ruling that two companies can be jointly responsible for working conditions.
But, like pretty much everything else in the political landscape, that is likely to change with Donald J. Trump’s election last month, labor experts said. As Mr. Trump builds his Cabinet and begins mulling nominees for the labor relations board, issues large and small could turn in the other direction.
“With a Republican-controlled board, with a different kind of lens when the board reviews a policy, it might weigh more on the side of the employer,” said Daniel Schudroff, an attorney for New York-based Jackson Lewis PC. “There’s a reasonable chance that the board will shift back to pro-business.”
Death by 1,000 paper cuts?
The makeup of the National Labor Relations Board has inevitably changed with the ideology of each presidential administration.
The board’s five members are appointed by the president, and confirmed by the Senate, for five-year terms. The general counsel, appointed by the president to a four-year term, is responsible for the prosecution of unfair labor practice cases and supervises 26 regional offices, including the one in Pittsburgh.
To get the board’s attention, an individual or group can file a charge of unfair labor practice with a regional office.
Charges can allege violations by an employer or violations by a labor union — though employers more often find themselves on the defensive. Violations include employers refusing to recognize a legally formed union, a failure on either side to bargain in good faith, or discrimination against employees to discourage or encourage unionization.
If the regional office finds merit in a complaint, the regional director — in Pittsburgh, this is Nancy Wilson — issues her own complaint.
Across all regional offices in the fiscal year ended Sept. 30, 21,326 unfair labor practice charges were filed, 6,010 settlements reached and 1,272 complaints issued by the regional directors, according to the board’s website. The rest of the charges were withdrawn or dismissed.
After a hearing, an administrative law judge makes a decision on the unfair labor charge. That decision can be appealed to the labor relations board in Washington, D.C., and, from there, to the U.S. Court of Appeals and the U.S. Supreme Court.
John Cerilli, an attorney with Pittsburgh-based law firm Littler Mendelson, said that, unlike other offices of the executive branch, the labor board rarely uses its rulemaking power.
Rather, he said, the board’s general counsel targets a group of cases that represent a change in policy. By issuing enough decisions, it establishes case law.
“Depending on what side you’re on, looking at these changes in the case law, it’s death by 1,000 paper cuts. To others, it’s like 1,000 Band-Aids,” Mr. Cerilli said. “While that was a great idea back in 1935 [when the board was created], it’s become a little unwieldy today because you have to know a lot of case law.”
Deciding which cases to hear
Aside from creating more work for labor lawyers, the board’s strategy means the general counsel — who manages the regional offices and decides which appeals to hear — becomes a important figure. “The general counsel has an enormous amount of power,” said Moshe Marvit, a Pittsburgh-based fellow at the Century Foundation, a progressive think tank based in New York.
The term of the current general counsel, Richard F. Griffin Jr., expires next year. Meanwhile, the board has two Democratic members, whose terms expire in 2018 and 2019, and one Republican member whose term expires in 2017.
There are two vacancies that Mr. Trump could try to fill immediately, giving the board a Republican majority. Senate Republicans blocked President Barack Obama’s nominees for several years, and some nominees’ terms have expired.
“The pendulum swings from one side to another depending on who’s in office,” Mr. Cerilli said. Though the Court of Appeals serves as a check, “The NLRB is given a lot of latitude and discretion.”
A board that tends to side with management is bad news for advocates of organized labor who argue a labor board’s explicit purpose — to enforce the National Labor Relations Act — is to encourage opportunities for unionization. Just 11 percent of American workers today, and 7 percent of private sector workers, belong to unions, down from 35 percent in the 1950s.
It’s not clear to what degree staffing at regional offices is shaken up after a new president takes office. A spokeswoman with the board directed questions to Mr. Trump’s transition team.
Even though administrative judges tend to stay on the job no matter who is president, Mr. Moshe said, employers will likely appeal unfavorable rulings to the national board. And as the general counsel gathers more cases, a precedent can be created fairly quickly.
“It’s not uncommon for a new board to overturn a previous board’s decision,” Mr. Moshe said. “You might see more of a sea change than you would in other agencies.”
Trump’s casino experience
At Rivers Casino, even with the board stepping into the disputes in recent years, the movement to organize workers appears to be stalled.
The employees, known as the Steel City Casino Workers' Council and represented by Unite Here Local 57, did not return requests for comment for this article on where the efforts stand.
In 2013, Rivers Casino workers filed 38 separate complaints with the labor board alleging illegal surveillance of employees, discriminatory enforcement of workplace policies against those promoting the union effort, and threatening comments. A couple months after the board filed its own complaint, the two sides worked out differences and signed a settlement agreement.
Over the past summer, workers held a rally and City Council launched the Fair Election Oversight Committee to monitor a union election at the casino — though it would not have the enforcement power of the labor relations board.
Mr. Trump’s business background would appear to give him reason to sympathize with Rivers Casino management.
Just a few days before the presidential election, Mr. Trump found himself the target of similar labor violation charges. The National Labor Relations Board ruled that management at Trump International Hotel in Las Vegas was illegally refusing to recognize a union of 500 housekeepers, food and beverage staff, and guest service workers there.
The labor board, which had certified the workers’ 238-209 vote in favor of the union, ordered hotel management to begin bargaining with the Culinary Workers Union Local 226, an affiliate of Unite Here — the same group trying to organize Rivers Casino workers.
Daniel Moore: dmoore@post-gazette.com, 412-263-2743 and Twitter @PGdanielmoore.
First Published: December 5, 2016, 5:00 a.m.
