Palace Station Hotel & Casino

327 NLRB No. 145 1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Palace Station Hotel and Casino, Inc. and Profes- sional, Clerical & Miscellaneous Employees, Lo- cal 995, affiliated with International Brother- hood of Teamsters, AFL–CIO. Case 28–CA– 15557 March 10, 1999 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND BRAME Pursuant to a charge filed on December 2, 1998, the General Counsel of the National Labor Relations Board issued a complaint on January 12, 1999, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s certification in Case 28–RC–5652. (Official notice is taken of the “rec- ord” in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and deny- ing in part the allegations in the complaint. On February 10, 1999, the General Counsel filed a Motion for Summary Judgment. On February 18, 1999, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer and responses, the Respondent admits its refusal to bargain, but attacks the validity of the certifi- cation on the basis of the Board’s unit determination in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent is now, and has been at all time mate- rial, a Nevada corporation with an office and place of business in Las Vegas, Nevada, where it is engaged in the hotel and gaming industry. During the 12-month period ending December 2, 1998, the Respondent, in the course and conduct of its business operations described above, purchased and received at the Respondent’s facil- ity products, goods, and materials valued in excess of $50,000 directly from points outside the State of Nevada and derived gross revenues therefrom in excess of $500,000. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held August 13, 1998, the Un- ion was certified on October 30, 1998, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All regular full-time warehouse employees employed by the Respondent at its facility located at 2411 W. Sa- hara Avenue, Las Vegas, Nevada; excluding all other employees, office clerical employees, professional em- ployees, managerial employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to bargain Since November 19, 1998, the Union has requested the Respondent to bargain, and, since November 19, 1998, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after November 19, 1998, to bar- gain with the Union as the exclusive collective- bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB DECISIONS OF THE NATIONAL LABOR RELATONS BOARD 2 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Palace Station Hotel and Casino, Inc., Las Vegas, Nevada, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with Professional, Clerical & Miscellaneous Employees, Local 995, affiliated with International Brotherhood of Teamsters, AFL–CIO as the exclusive bargaining representative of the employees in the bargaining unit. (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, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All regular full-time warehouse employees employed by the Respondent at its facility located at 2411 W. Sa- hara Avenue, Las Vegas, Nevada; excluding all other employees, office clerical employees, professional em- ployees, managerial employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Las Vegas, Nevada, copies of the attached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 28 after being signed by the Respondent’s authorized repre- sentative, 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 19, 1998. 1 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.” (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 comply. Dated, Washington, D.C. March 10, 1999 Sarah M. Fox, Member Wilma B. Liebman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER BRAME, dissenting. In the underlying representation proceeding, I dis- sented from my colleagues’ denial of the Employer’s request for review of the Regional Director’s decision, in which he found appropriate a unit limited to warehouse employees. Accordingly, I dissent here from my col- leagues’ granting the General Counsel’s Motion for Summary Judgment and their finding that the Employer violated Section 8(a)(5) and (1) of the Act. Dated, Washington, D.C. March 10, 1999 J. Robert Brame III, Member NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Professional, Clerical & Miscellaneous Employees, Local 995, affili- ated with International Brotherhood of Teamsters, AFL– CIO as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: PALACE STATION HOTEL 3 All regular full-time warehouse employees employed by us at our facility located at 2411 W. Sahara Avenue, Las Vegas, Nevada; excluding all other employees, of- fice clerical employees, professional employees, mana- gerial employees, guards and supervisors as defined in the Act. PALACE STATION HOTEL AND CASINO, INC.