Law360 (July 8, 2020, 7:47 PM EDT) -- Two Las Vegas resorts have urged a Nevada federal court to toss a suit by unions that claim the businesses' "unreasonable" COVID-19 rules don't protect employees, arguing that the workers' representatives have never during regular negotiations proposed safety standards addressing the pandemic.
Bellagio LLC and The Signature Condominiums LLC, both subsidiaries of MGM Resorts International, said in a Tuesday motion to dismiss the suit that the resorts only learned about the culinary workers and a bartenders unions' safety concerns in a June 29 press release published the same day a union bargaining agency filed the complaint.
"Startlingly, given the importance of worker and guest safety to both defendants and the Las Vegas economy at large, defendants first learned of the union's concerns in a press release which confirmed that this lawsuit, rather than informal resolution through the grievance and arbitration procedure, was preordained," the resorts said. "It is both inconceivable and inexcusable that the union spent days ... collecting allegations, drafting a 30-page lawsuit, issuing a press release, and then conducting a press conference instead of contacting defendants to share information and collaborate to keep workers and guests safe."
The resorts said their decade-long collective bargaining relationships with the plaintiff, the Local Joint Executive Board of Las Vegas, had typically involved daily communications as the joint bargaining agency represents the interests of Culinary Workers Union, Local 226, and Bartenders Union, Local 165.
Those daily communications have continued through the coronavirus crisis, but during that time the unions never proposed that Bellagio or Signature adopt specific health and safety standards during their regular discussions, the resorts said.
The resorts said they hired experts to develop health and safety plans using the best available science and epidemiological studies, and then offered the plans along with employee training information to the unions on May 12, three weeks ahead of reopening.
The unions neither commented on nor criticized the plans at that time, according to the resorts. Instead, they said, the unions filed a June 25 grievance after the June 4 reopening seeking arbitration, but also spent their time concocting a frivolous lawsuit and crafting their June 29 press campaign.
"A frivolous or bad faith attempt to circumvent arbitration – which is exactly what has occurred here – is considered sanctionable conduct," the resorts said, adding that the court has the authority to assess attorney fees in their favor.
The June 29 complaint, which seeks injunctive relief under the Labor Management Relations Act, names Bellagio and Signature as well as Harrah's Las Vegas LLC as co-defendants. It claims that the casinos and resorts' rules and procedures for dealing with workers who contracted the disease are "wholly and dangerously inadequate."
"We feel right now they've really been putting the workers at risk, and not only the workers, their families. too," Geoconda Argüello-Kline, secretary-treasurer of the Culinary Union, said at a press conference on June 29.
At least 19 of the unions' members and their dependents have died from COVID-19 since March, according to the complaint.
The suit said the companies only encouraged guests to wear face masks in public areas rather than requiring them to do so before a mandate from the governor, despite "overwhelming evidence of the importance of mandating facial coverings by guests in public areas of casinos and hotels." Workers, however, were required to wear masks, according to the suit.
Further, the unions said, the employers failed to adequately respond to and inform workers about their colleagues' positive COVID-19 tests at all three venues.
Debra DeShong, a spokesperson for MGM Resorts International, told Law360 in a statement Wednesday that the health and safety of employees and guests remained the company's primary concern.
"Prior to the lawsuit, union leaders did not request actionable health policy changes, and we first became aware of the union's allegations when we received its press release announcing the lawsuit," DeShong said. "Their focus in our conversations had been on economic issues such as scheduling, seniority and recall [of laid-off employees]. As we have from the start, we stand ready to discuss health protocols directly with union leaders."
Representatives for the unions did not immediately respond Wednesday to a request for comment.
The Local Joint Executive Board of Las Vegas, the joint bargaining agency for the two unions, is represented by Paul L. More, Sarah Varela and Kim Weber of McCracken Stemerman & Holsberry LLP.
Bellagio and Signature are represented by Paul T. Trimmer, Joshua A. Sliker and Lynne McChrystal of Jackson Lewis PC.
Counsel information for Harrah's was not yet available Wednesday.
The case is Local Joint Executive Board of Las Vegas v. Harrah's Las Vegas LLC, The Signature Condominiums LLC, Bellagio LLC, case number 2:20-cv-01221, in the U.S. District Court for the District of Nevada.
--Additional reporting by Danielle Nichole Smith. Editing by Peter Rozovsky.
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