Consolidated Casinos Corp., Sahara Division

264 NLRB No. 92 D-9337 Las Vegas, NV UNITED STATES JF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD CONSOLIDATED CASINOS CORP. SAHARA DIVISION and GENERAL SALES DRIVERS, DELIVERI DRIVERS & HELPERS, LOCAL 14, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA *ase 1--CA-12064 (05) September 30, 1912 OSDECISION AND ORDER 05 T4 By members Fanning, Jenkins, and zimmeaman n Upon a charge filed on April 15, 1982, by General Sales Drivers, Delivery Drivers & Helpers, Local 14, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Consolidated Casinos Corp., Sahara Division, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 31, issued a complaint on April 30, 1982, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies 264 NLRB No. 92 D--9337 of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. 11 With respect to the unfair labor practices, the complaint alleges in substance that on March 29, 1982, following a Board election in Case 31--RC-4841, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1@and that, commencing on or about April 12, 1982, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do SO. On May 24, 1982, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. 11 On June 28, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 2, 1982, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent did not file a response to the 3-10N 1 Official notice is taken of the record in the representation proceeding, Case 31--RC-4841, as the term ''record'' is defined in Secs. 102.68 and 102.69 (g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc 166 NLRB 938 (1967) enfd. 388 F. 2d 683 (4th Cir. 1968) ; B Golden Age Beverage 167 NLRB 151 1967) \enfd. 415 F.2d 26 (5th Cir. 1969) ; Intertype Co. Penello 269 F. Supp. 573 (D.C.Va. 1967) Follett Corp. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. D--9337 Notice To Show Cause presumably relying upon the affirmative defenses it set forth in its answer to the complaint. 11 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a threemember panel. Upon the entire record in this proceeding, the Board makes the following: 05 Ruling on the Motion for Summary Judgment In its answer to the complaint, Respondent sets forth a series of affirmative defenses that, essentially, contest the validity of the Board-conducted election and the resultant certification of the Union. Specifically, Respondent reasserts its claim that the Union engaged in objectionable conduct prior to the election and that a second election should be held. Respondent also urges that there are insufficient facts upon which to render summary judgment. In the Motion for Summary Judgment the General Counsel maintains that Respondent is attempting to relitigate the issues it raised in the related representation proceeding 2 il Review of the record herein, including the record in Case 31 RC 4841, reveals that on September 17, 1980, the Regional 2 Indeed, in its response to the Union's request to commence bargaining, Respondent's counsel informed the Union that [Respondent] is unwilling to commence negotiations with you at this time. This is because we intend to seek a review of the National Labor Relations Board decision certifying your Union as [.t.]. the representative of certain employees in our casino [t]he only way to secure a review of our objections to the conduct of the election is to refuse to bargain. D--9337 Director for Region 31 approved a Stipulation for Certification Upon Consent Election in Case 31--RC--4841 executed by Respondent and the Union. An election was conducted on October 25, 1980, which resulted in a vote of 279 to 124 in favor of the Union and 23 challenged ballots. On October 31, 1980, Respondent timely filed objections to cnduct affecting the results of the election. 11 The objections alleged that the Union, inter alia: advised employees that by voting ''Yes'' they would not be voting against Respondent; created the impression that the National Labor Relations Board desired that employees vote for the Union; allowed newspaper reporters and photographers to be present during the election; promised that initiation fees would be reduced for employees who joined the Union before the election; promised a reduction in initiation fees if employees voted for the Union; made various promises of benefit for employees who voted for the Union; engaged in other specified and unspecified acts of misrepresentation, threats, interference, and coercion. 11 Following an investigation in which all parties were allowed to submit evidence, the Regional Director, on January 28, 1981, issued a Report on Objections, recommending that Respondent's Objections 1 through 5, 8 through 11, and 13 be overruled. The Regional Director further directed a hearing in order to resolve substantial and material issues raised by Respondent's Objections 6, 7, and 12. On February 23, 1981, Respondent timely filed exceptions to the Regional Director's recommendation concerning Objections 1, 2, and 8 through 11. On April 22, 1981, the Board issued a Decision and Order overruling Objections 1 through 5, 8 D--9337 through 11, and 13 and remanding Objections 6, 7, and 12 for a hearing. (Not reported in volumes of Board Decisions.) 11 On May 7, 1981, the Regional Director for Region 31 issued a notice of hearing on objections. An order transferring hearing was issued by the Regional Director on June 8, 1981. On September 11, 1981, following 4 days of hearing at which all parties were permitted to submit evidence and to cross-examine witnesses, Hearing Officer Kevin Donnellan issued a Report and Recommendation, recommending that Respondent's Objections 6, 7, and 12 be overruled and that a Certification of Representative be issued. On March 29, 1982, the Board issued a Supplemental Decision and Certification of Representative in which it adopted the Hearing Officer's findings and recommendations and certified the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit. (Not reported in volumes of Board Decisions.) Il It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8 (a) (5) is. not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding. 3 = All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly 3 See 73 Pittsburgh Plate Glass Co. N.L.R.B. TI 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69 (c). D--9337 discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. 11 On the basis of the entire record, the Board makes the following: 05 14 Findings of Fact 05 74 A. The Business of Respondent 11 Respondent, a Nevada corporation, is engaged in the operation of a hotel and casino at Las Vegas, Nevada. In the course and conduct of its business operations, Respondent annually purchase and receives goods or services valued in excess of $50,000 directly from suppliers located outside the State of Nevada. 11 We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. T4 H. The Labor Organization Involved General Sales Drivers, Delivery Drivers & Helpers, Local 14, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. D--9337 05 14 The Unfair Labor Practices 05 The Representation Proceeding Os 1. The unit 11 The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9 (b) of the Act: 12 All gaming casino dealers including keno writers, keno runners, twenty-one dealers, crap dealers, bacarat dealers and shills, poker dealers, pan dealers, poker and pan shills and shill dealers, extra board dealers and oriental games dealers employed by the Employer at its facility located at 2535 Las Vegas Boulevard South, Las Vegas, Nevada; excluding all other employees including casino shift managers, assistant shift managers, pit bosses, pit floormen, boxmen, slot shift supervisors, floormen, slot mechanics, booth cashiers, change girls, casino cage cashiers, slot cage cashiers, coin counters and wrappers, pit clerks, credit clerks, office clerical employees, guards, and supervisors as defined in the Act, as amended. & 2. The certification On October 25, 1980, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 31, designated the Union as their representative for the purpose of collective bargaining with Respondent. = The Union was certified as the collective-bargaining representative of the employees in said unit on March 29, 1982, and the Union continues to be such exclusive representative within the meaning of Section 9 (a) of the Act. 05 B 13)he Request To Bargain and Respondent's Refusal 11 Commencing on or about April 2, 1982, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining D--9337 representative of all the employees in the above-described unit. Commencing on or about April 12, 1982, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. 1' Accordingly, we find that Respondent has, since April 12, 1982, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 14 IV. The Effect of the Unfair Labor Practices Upon Commerce 11 The activities of Consolidated Casinos Corp., Sahara Division, set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. The Remedy Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the D--9337 appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. 11 In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. 1 See Mar-Jac Poultry Company, Inc 136 NLRB 785 (1962) Commerce Company d/b/a Lamar Hotel 140 NLRB 226, 229 (1962), enfd. 328 F. 2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 Burnett Construction Company 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). 11 The Board, upon the basis of the foregoing facts and the entire record, makes the following: 05 T4 Conclusions of Law 11 1. Consolidated Casinos Corp., Sahara Division, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Il 2. General Sales Drivers, Delivery Drivers & Helpers, Local 14, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 11 3. All gaming casino dealers including keno writers, keno runners, twenty-one dealers, crap dealers, bacarat dealers and shills, poker dealers, pan dealers, poker and pan shills and shill dealers, extra board dealers and oriental games dealers 9337 employed by the Employer at its facility located at 2535 Las Vegas Boulevard South, Las Vegas, Nevada; excluding all other employees including casino shift managers, assistant shift managers, pit bosses, pit floormen, boxmen, slot shift supervisors, floormen, slot mechanics, booth cashiers, change girls, casino cage cashiers, slot cage cashiers, coin counters and wrappers, pit clerks, credit clerks, office clerical employees, guards, and supervisors as defined in the Act, as amended, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. Since March 29, 1982, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on or about April 12, 1982, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. ll 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has D--9337 engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 11 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Consolidated Casinos Corp., Sahara Divsion, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with General Sales Drivers, Delivery Drivers & Helpers, Local 14, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: 12 All gaming casino dealers including keno writers, keno runners, twenty-one dealers, crap dealers, bacarat dealers and shills, poker dealers, pan dealers, poker and pan shills and shill dealers, extra board dealers and oriental games dealers employed by the Employer at its facility located at 2535 Las Vegas Boulevard South, Las Vegas, Nevada; excluding all other employees including casino shift managers, assistant shift managers, pit bosses, pit floormen, boxmen, slot shift supervisors, floormen, slot mechanics, booth cashiers, change girls, casino cage cashiers, slot cage cashiers, coin counters and wrappers, pit clerks, credit clerks, office clerical employees, guards, and supervisors as defined in the Act, as amended. 04 D--9337 11 (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 11 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. b) Post at its Las Vegas, Nevada facility copies of the attached notice marked ''Appendix. 4 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (510m) 4 Rosp 27 In the event that 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 NATIONAL LABOR RELATIONS BOARD shall read ''POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD. 1 D- 9337 (c) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Dated, Washington, D.C. September 30, 1982 John H. Fanning, Member Howard Jenkins, Jr., Member Don A. Zimmerman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 65 APPENDIX 41 NOTICE TO EMPLOYEES 9 Posted by Order of the 7 National Labor Relations Board GI)(i) An Agency of the United States Government 06 WE WILL NOTCefuse to bargain collectively 13 concerning rates of pay, wages, hours, and other terms and conditions of employment with General Sales Drivers, Delivery Drivers & Helpers, Local 14, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described below. 4 13 It WE WILL NOT In any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. 17 13074 WE WILL upon request, bargain with the abovenamed Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement The bargaining unit is: QD4 14 All gaming casino dealers including keno writers, keno runners, twenty-one dealers, crap dealers, bacarat dealers and shills, poker dealers, pan dealers, poker and pan shills and shill dealers, extra board dealers and oriental games dealers employed by the Employer at its facility located at 2535 Las Vegas Boulevard South, Las Vegas, Nevada; excluding all other employees including casino shift managers, assistant shift managers, pit bosses, pit floormen, boxmen, D--9337 slot shift supervisors, floormen, slot mechanics, booth cashiers, change girls, casino cage cashiers, slot cage cashiers, coin counters and wrappers, pit clerks, credit clerks, office clerical employees, guards, and supervisors as defined in the Act, as amended. Q 06 04 CONSOLIDATED CASINOS CORP SAHARA DIVISION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 213--824--7357.