Appellate panel’s November decision in case signaled desire to revisit precedent that subjects workers to unwanted unionization

Las Vegas, NV (January 21, 2022) – In late 2019, a large majority of the workers at Red Rock Casino in Las Vegas, Nevada voted “no” to unionization, but a federal district court judge ordered their employer to bargain with union officials anyway. On Thursday, with free legal aid from the National Right to Work Legal Defense Foundation, casino employee Raynell Teske again backed an effort to overturn the judge’s order.

In August 2021, the casino appealed the district judge’s order to a three judge panel at the U.S. Court of Appeals for the Ninth Circuit. Teske then filed an amicus brief with Foundation legal aid arguing the district judge was wrong to impose the union on her and the other workers who made it clear in their secret-ballot election that they rejected unionization.

On November 26, 2021, the panel declined to overturn the lower court’s decision, citing binding Ninth Circuit precedent. But all three judges issued a concurring opinion saying they disagreed with that precedent, and signaled they would be willing to overturn it if the issue came before a Ninth Circuit en banc panel. Red Rock petitioned for an en banc rehearing, and Teske’s attorneys again filed an amicus brief on Thursday urging the court to rehear the case and overturn the district judge’s mandate.

The situation at Red Rock began in December 2019, when the National Labor Relations Board held a secret ballot election on whether to unionize Red Rock. A sizable majority of employees rejected union officials’ effort to become their monopoly bargaining representatives. Despite that vote, NLRB Region 28 Director Cornele Overstreet filed a federal court injunction action seeking to have the union imposed over the workers’ objections.

On July 20, 2021, District Judge Gloria Navarro agreed with the NLRB Director’s request, and issued a “Gissel” order forcing Red Rock to bargain with union officials despite the employees’ vote against unionization. The judge said the order was justified because, before the vote, union officials claimed that a majority of workers had signed union authorization cards.

Teske’s amicus brief argues those “card check” signatures are unreliable evidence of union support, and not reason enough to conclude the union ever had majority support. She contends the level of union support was tested fairly by the secret-ballot election, in which workers voted 627-534 against unionization. As the NLRB and federal courts have recognized in other cases, secret ballots are a more reliable way of gauging worker support for a union, because workers are often pressured, harassed, or misled by union organizers into signing cards.

Unions themselves know that “card check” signatures do not indicate solid worker support. The AFL-CIO admitted in its 1989 organizing handbook that it needed at least 75% card check support before having even a 50-50 chance of winning a secret ballot election. An earlier union guidebook acknowledged that some workers sign cards just to “get the union off my back.”

Teske’s brief argues the union’s possession of so-called “cards” is an insufficient legal basis for imposing unionization, especially after a secret ballot election which the union lost. It agrees with the employer that the “Gissel” order should be overturned, and that Teske and her coworkers should not be subjected to monopoly bargaining by a union they rejected in an NLRB-supervised secret ballot election.

“Ms. Teske and her coworkers voted decisively against unionization, but an Obama-appointed judge imposed it on them anyway,” said National Right to Work Legal Defense Foundation President Mark Mix. “‘Card Check’ unionization is widely accepted as unreliable, especially compared to an NLRB-supervised secret ballot election. There are countless examples of workers being pressured, misled and even bribed to sign union cards.”

“There is no reason why a district court judge should be able to substitute the wishes of NLRB bureaucrats for the choice workers already made at the ballot box. The Ninth Circuit should promptly convene an en banc panel and overturn Judge Navarro’s order that blatantly violates the rights of rank-and-file workers,” added Mix.

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year.