NP Red Rock LLC, d/b/a Red Rock Casino Resort Spa v. National Labor Relations Board

Question No. 1: Employees, not the National Labor Relations Board (the “Board” or “NLRB”), are empowered to decide whether they wish to be represented by a union. This Court has recognized an extraordinary, narrow exception allowing the Board to order an employer to bargain with a union, even where, as here, a majority of employees voted against representation in a Boardconducted secret-ballot election. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). But this so-called Gissel bargaining order is an “extreme remedy” warranted only with application of “commensurate care.” Avecor, Inc. v. NLRB, 931 F.2d 924, 939 (D.C. Cir. 1991) (emphasis added). This is because, as here, it forces union representation on employees who have voted to reject that very representation. The Courts of Appeals have taken materially different approaches to evaluating employers’ grants of economic benefits, including whether such grants warrant treatment as “hallmark” violations and can support entry of a Gissel bargaining order. The question presented is: Whether an employer’s benefits grant constitutes a hallmark violation supporting entry of an extreme labor remedy in the form of a Gissel bargaining order. Question No. 2: The Board adjudicated Red Rock’s private rights by purporting to award “direct or foreseeable pecuniary harms” as a remedy. The Board did not afford Red Rock the right to a trial by jury as the Seventh Amendment to the United States Constitution requires. The question presented is: Whether the Board violated Red Rock’s Seventh Amendment rights by failing to afford it a jury trial.