Las Vegas Union Card Check Case At 9th Circuit Court Could Have National Implications

CARSON CITY – A case pitting a Las Vegas commercial flooring company against a local painters union will be heard in the 9th U.S. Circuit Court of Appeals next week, and the decision could have far-reaching consequences for how labor groups can organize, the business owner involved in the dispute says.
Jamie Gillette, owner of J&R Flooring, said she is concerned that if the International Union of Painters and Allied Trades, District Council 15, Local 159 wins a favorable ruling, that “card check” procedures would be greatly liberalized in favor of unions, removing business owners’ participation in the unionizing process.
The case is set for oral argument on July 14. The dispute started with eight different companies, but only J&R is still part of the case.
“Part of the reason why I have continued to pursue this is because I would like to maintain some control over the decisions that I make here,” Gillette said. “And also, I’ve been accused of committing an unfair labor practice, and I don’t feel I have, and two judges and the NLRB (National Labor Relations Board) have both said that I haven’t.”
The union keeps pursuing it anyway, she said.
“It’s been a difficult decision to continue to fight this; I’ve been told by a lot of people that it’s not worth it,” Gillette said. “But I trust my attorney and I trust I’m doing the right thing as a small business owner.
“And just for employees’ rights as well,” she said. “I don’t believe that anybody should have any kind of representation forced upon them, whether it be the business or the employees.”
Union attorney David Rosenfeld disagrees that the case would lead to the results cited by Gillette.

Painters Union attorney David Rosenfeld

The case has the potential to produce an import ruling, but the question is whether unions can enforce card checks through an arbitration clause, he said. The union sought arbitration in the dispute but was denied its request.
Rosenfeld said he hopes that the 9th Circuit Court will rule that arbitration is the way to resolve the card check dispute.
“The question is whether we should arbitrate these disputes,” he said.
Las Vegas attorney Greg Smith, who is representing Gillette, said the appeal involves both the rejection of the unfair labor practice allegation, and the separate issue where the union sought to compel the company to arbitrate the original dispute over the card check process.

Greg Smith, attorney for J&R Flooring of Las Vegas in card check case. / Photo: Lionel, Sawyer & Collins

But he disagrees with Rosenfeld that the arbitration question is the crux of the case, saying the union did not request arbitration until nine months after the flawed Jan. 31, 2007 card check process, which also happened to be the last day of the contract.
“Why did they never, not even to this day, file the required grievance under Article 22 of the contract and, instead, just demand arbitration?” he asked.

The case dates back to 2007, when the union wanted to change its status from one classification that did not require J&R to renegotiate when a contract ended, to one mandating that bargaining continue in perpetuity.
Currently, labor law gives employers a say in how a union organizing effort is performed, such as agreeing on a list of employees who are eligible to sign cards indicating their support for, or opposition to, the representation. Employers also get to help select a neutral third party to perform the check of the signatures on cards to determine the outcome of the vote.
J&R agreed to recognize the union under its new status if it proved a majority of employee support in a card check conducted by a third party as provided in the law.
Instead, Gillette said the union did not follow the National Labor Relations Board rules on card checks. The union claimed the right to unilaterally announce the card check, to unilaterally set all procedures for the check and the unilateral selection of a third party arbitrator.
J&R Flooring refused to recognize the card check results, and the union appealed to the NLRB and then into the federal courts, claiming the company committed an unfair labor practice. It has lost at every step of the way so far, but the company has incurred legal costs of $300,000 to date, and Gillette said she does not know if she can afford to continue the legal battle if the 9th circuit rules against her company.
Even if the company wins at the 9th Circuit, an appeal could be attempted to the U.S. Supreme Court by the union, requiring even more in legal defense costs.
The case has attracted national attention from labor attorneys and others. It was the subject of a Harvard Law Review article after the prior 9th Circuit Court decision.
Gillette took over the business, which installs carpeting and other types of flooring in Las Vegas hotel-casinos, from her parents in 2003. The company employs about 40 people now, but can have more than 100 workers when business is booming.
Even though the company has not had a union contract since the dispute, Gillette said she continues to pay into the health and welfare fund for her employees.
Gillette, who will attend the oral arguments next week, said her intent is to renegotiate a new labor agreement with the union when the case is resolved.
“But after every time we have been victorious in the lawsuit I expected to go back to the negotiating table with the union and put this thing to bed, but they have continued to appeal every decision,” she said.
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J&R has set up an independent corporation, Contractors for Justice, to collect funds to assist in paying the remainder of the court costs, which could run as high as an additional $300,000.
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Audio clips:
Las Vegas businesswoman Jamie Gillette says she has pursued the lawsuit to maintain some control over her business:
070811Gillette1 :33 that we have.”
Gillette says it has been a difficult decision to continue the legal fight:
070711Gillette2 :37 or the employees.”
Gillette says every time she wins a ruling she expects the union to settle:
070711Gillette3 :15 appeal every decision.”
Las Vegas Chamber of Commerce Communications Director Cara Roberts says the chamber is not actively involved in the case but is concerned with card check rules:
070811Roberts1 :13 quite some time.”
Roberts says the chamber is concerned the rules were not followed in this case:
070811Roberts2 :21 rules weren’t followed.”