San Manuel Indian Bingo and Casino

SAN MANUEL INDIAN BINGO & CASINO 345 NLRB No. 79 1047 San Manuel Indian Bingo and Casino and Hotel Em- ployees and Restaurant Employees International Union, CLC1 and Communications Workers of America, AFL–CIO, CFC, Party in Interest and State of Connecticut, Intervenor. Cases 31–CA– 23673 and 31–CA–23803 September 30, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER Upon charges filed by Hotel Employees and Restau- rant Employees International Union (the Union), the General Counsel of the National Labor Relations Board issued an order consolidating cases and notice of hearing on September 30, 1999. The consolidated complaint alleges that the Respondent engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (2) of the National Labor Relations Act. The Respondent filed an answer to the consolidated complaint. On January 18, 2000, the Respondent filed with a Board a motion to dismiss the consolidated complaint for lack of jurisdiction. On May 28, 2004, the Board denied the Respondent’s motion to dismiss, and affirmatively asserted jurisdiction over the Respondent. 341 NLRB 1055 (2004). On March 9, 2005, the Respondent filed an amended answer to the consolidated complaint. On March 22, 2005, the General Counsel filed a mo- tion to transfer the proceeding to the Board and for sum- mary judgment. On March 25, 2005, the Board issued an Order transferring the proceeding to the Board and notice to show cause why the motion for summary judgment should not be granted. Thereafter, the General Counsel and the Respondent filed briefs in support of their re- spective positions. On May 5, 2005, the General Coun- sel filed a motion to strike and reply to Respondent’s opposition to the General Counsel’s motion for summary judgment. The Respondent filed a response to the mo- tion to strike. With the Board’s permission, the State of Connecticut filed an amicus brief in support of the Gen- eral Counsel’s motion for summary judgment. The Re- spondent filed a response to the amicus brief. I. THE ISSUE In its amended answer, the Respondent has admitted all factually material allegations of the consolidated complaint, while maintaining its affirmative defense that the Board lacks jurisdiction. Accordingly, the sole issue 1 We have amended the caption to reflect the disaffiliation of the Ho- tel Employees & Restaurant Employees International Union, AFL– CIO, effective September 14, 2005. presented here is whether the Board lacks jurisdiction over the Respondent. A. The Contentions of the Parties In its affirmative defenses, the Respondent contends that the Board cannot exercise jurisdiction over the Re- spondent because it is owned and operated by a federally recognized Indian tribe within the confines of an Indian reservation pursuant to the terms of the Indian Gaming Regulatory Act; it is not an employer within the meaning of the National Labor Relations Act (NLRA); and appli- cation of the NLRA to the tribe is preempted by the In- dian Gaming Regulatory Act. The General Counsel asserts that this issue was previ- ously litigated and decided in this case. In this regard, the General Counsel points to the Board’s Order denying the Respondent’s motion to dismiss the complaint for lack of jurisdiction, in which the Board articulated a new standard for asserting jurisdiction over Indian owned and operated enterprises and under which it asserted jurisdic- tion over the Respondent. The General Counsel also maintains that to the extent that the Respondent has offered a new argument to sup- port its position that the Board lacks jurisdiction, that argument is untimely, improper, and should be struck.2 In the alternative, the General Counsel argues that the new argument should be rejected as an impermissible attempt to relitigate the jurisdiction issue. Finally, in view of the Respondent’s admission of all factually ma- terial allegations of the consolidated complaint, the Gen- eral Counsel requests the Board to find that the Respon- dent has committed the violations of Section 8(a)(2) and (1) of the Act set out in the consolidated complaint. B. Discussion We agree with the General Counsel that it would be improper to relitigate the issue of jurisdiction at this juncture.3 The Board has already decided that issue in this case, in the context of the Respondent’s motion to dismiss the complaint, and the Respondent has presented no newly discovered and previously unavailable evi- dence and/or special or changed circumstances that would necessitate reexamination of the Board’s decision 2 The Respondent argues that the Board lacks jurisdiction for the reasons stated in its motion to dismiss and because its tribal relations ordinance, which is a component of its compact with the State of Cali- fornia, preempts the NLRA pursuant to the Compact Clause of the Constitution. 3 Member Schaumber notes that he dissented from the Board’s de- nial of the Respondent’s motion to dismiss. He would find that the Board does not have jurisdiction here. Member Schaumber agrees with his colleagues, however, that the Respondent may not relitigate the jurisdiction issue now and therefore joins in granting the General Coun- sel’s summary judgment motion. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1048 to assert jurisdiction. The Respondent has not presented any special evidence that would require us to reach a different result. Nor has the Respondent provided any reason why it could not have presented its argument re- garding the preemption of the Act by its tribal labor rela- tions ordinance under the Compact Clause of the Consti- tution to us in support of its motion to dismiss. See Wayne County Neighborhood Legal Services, 249 NLRB 1260, 1263 (1980). Accordingly, we find that the Re- spondent’s affirmative defenses are without merit.4 Because the Respondent has admitted the factually ma- terial allegations in the consolidated complaint, those allegations must be considered to be true. II. THE UNFAIR LABOR PRACTICE CASE The Board has considered the briefs and the entire re- cord in this proceeding and makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a California corporation, has been engaged in the operation and main- tenance of a gaming establishment, including a gaming casino, restaurants, eating facilities, retail shops, and other retail stores, in Highland, California. During the calendar year ending December 31, 1998, the Respon- dent, in conducting its gaming establishment operations described above, derived gross revenues in excess of $500,000. During the same period of time, the Respon- dent, in conducting its operations described above, pur- chased and received at its Highland, California facilities goods and materials valued in excess of $50,000, which goods and materials originated from points outside of California. We find that at all material times the Re- spondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The consolidated complaint alleges, the Respondent does not deny, and we find that at all material times the Union has been a labor organization within the meaning of Section 2(5) of the Act. II. UNFAIR LABOR PRACTICE PROCEEDINGS The consolidated complaint alleges, the Respondent in effect admits, and we find that the Respondent violated Section 8(a)(2) and (1) of the Act by rendering aid, assis- tance, and support to the Communications Workers of America (CWA). Specifically, the consolidated com- plaint alleges, the Respondent in effect admits, and we find that the Respondent: (a) permitted CWA, through its agents, to place a trailer in a parking lot on Respon- 4 In light of our conclusion, we find it unnecessary to address the General Counsel’s motion to strike. dent’s property and to use said trailer for the purpose of organizing Respondent’s employees; (b) permitted CWA, through its agents, to place CWA’s banner on said trailer for the purpose of organizing Respondent’s em- ployees; (c) permitted CWA, through its agents, to place a bulletin board and CWA leaflets and other writings near the said trailer; (d) permitted CWA, through its agents, to talk to employees of the Respondent inside the Respondent’s facility during said employees’ work time and nonwork time for the purpose of organizing the Re- spondent’s employees; and (e) denied, through Mazzie and other security guards, agents, and supervisors, the Union access to its facility and employees on an equal or equivalent basis with the access granted to CWA. CONCLUSION OF LAW By rendering aid, assistance, and support to CWA and denying the Union access to its facility and employees on an equal or equivalent basis with the access granted to CWA, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(2) and (1) and Section 2(6) and (7) of the Act. ORDER The National Labor Relations Board orders that the Respondent, San Manuel Indian Bingo and Casino, Highland, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Allowing Communications Workers of America, AFL–CIO, CLC, to place a trailer, a banner, and a bulle- tin board on its property, and to leaflet and talk to em- ployees at its facility for the purpose of organizing Re- spondent’s employees, and denying Hotel Employees and Restaurant Employees International Union or any other union access to its property, facility, and employees on an equal and equivalent basis at a time when a ques- tion concerning initial representation could be raised. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, provide representatives of Hotel Em- ployees and Restaurant Employees International Union or any other union the same rights of access to its prop- erty, facility, and employees on an equal and equivalent basis at a time when a question concerning initial repre- sentation could be raised. (b) Within 14 days after service by the Region, post at its facility in Highland, California, copies of the attached SAN MANUEL INDIAN BINGO & CASINO 1049 notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director of Region 31, after being signed by the Respondent’s authorized repre- sentatives, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 1998. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to com- ply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 5 If this order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT interfere with your free exercise of these rights. WE WILL NOT disparately deny representatives of the Hotel and Restaurant Employees International Union (HERE) or any other union access to our property to communicate with or solicit support from you at a time when a question concerning initial representation could be raised. WE WILL NOT provide unlawful aid, assistance, or sup- port to the Communications Workers of America (CWA) and its representatives. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Section 7 of the Act. WE WILL provide representatives of HERE or any other union the same rights of access to our property and our employees that we provided to CWA and its repre- sentatives, at such time as a question concerning initial representation could be raised. SAN MANUEL INDIAN BINGO AND CASINO