Majestic Star Casino, LLC

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the E x­ 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. The Majestic Star Casino, LLC and United Steel- workers of America, AFL–CIO–CLC. Case 13– CA–40683 February 26, 2003 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER This is a refusal-to-bargain case in which the Respon­ dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed­ ing. Pursuant to a charge filed on December 2, 2002,1 the General Counsel issued the complaint on December 13, 2002, alleging that the Respondent has violated Sec­ tion 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 13–RC–20764. (Official notice is taken of the “re- cord” 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, and asserting affirmative defenses. On January 14, 2003, the General Counsel filed a Mo­ tion for Summary Judgment. On January 16, 2003, 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 The Respondent admits its refusal to bargain, but con- tests the validity of the certification based on its objec­ tions to conduct alleged to have affected the results of the election 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 circumstances that would require the Board to reexamine 1 Although the Respondent’s answer to the complaint denies having knowledge or information sufficient to form a belief as to the date the charge was filed, a copy of the charge, dated December 2, 2002, is attached as an exhibit to the motion for summary judgment. Further, the Respondent admits that it was served with the charge by certified mail on the following day. 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.2 On the entire record, the Board makes the fol­ lowing FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, an Indiana lim­ ited liability company with an office and place of busi­ ness in Gary, Indiana, has been engaged in providing electronic and live games of chance. During the calendar year preceding issuance of the complaint, the Respondent, in conducting its operations, derived gross revenues in excess of $500,000 and pur­ chased and received goods valued in excess of $50,000 directly from suppliers located outside the State of Indi­ ana. 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 May 24, 2002, the Union was certified on August 28, 2002, as the exclusive col­ lective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time slot technicians em­ ployed by the Employer at its facility currently located at One Buffington Harbor Drive, Gary, Indiana, but ex­ cluding all slot performance supervisors, sales persons, confidential employees, managers, office clerical em­ ployees and guards, professional employees and super- visors 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 About September 17, 2002, the Union, by letter, re- quested that the Respondent bargain, and since about 2 Chairman Battista and Member Schaumber did not participate in the underlying representation proceeding. However, they agree that the Respondent has not raised any new matters warranting a hearing in this proceeding, nor does it allege any special circumstances requiring examination of the decision made in the representation proceeding, and that summary judgment is therefore appropriate. 338 NLRB No. 107 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD October 9, 2002, the Respondent has failed and refused to do so. We find that the Respondent’s conduct consti­ tutes an unlawful refusal to bargain in violation of Sec­ tion 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after October 9, 2002, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affect­ ing 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 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, The Majestic Star Casino, LLC, Gary, Indi­ ana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with United Steel- workers of America, AFL–CIO–CLC, as the exclusive bargaining representative of the employees in the bar- gaining 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 full-time and regular part-time slot technicians em­ ployed by the Employer at its facility currently located at One Buffington Harbor Drive, Gary, Indiana, but ex­ cluding all slot performance supervisors, sales persons, confidential employees, managers, office clerical em­ ployees and guards, professional employees and super- visors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Gary, Indiana, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized representa­ tive, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respon­ dent 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 Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since October 9, 2002. (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. Dated, Washington, D.C. February 26, 2003 Robert J. Battista, Chairman Wilma B. Liebman, Member Peter C. Schaumber, Member (SEAL) 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 vio­ lated Federal labor law and has ordered us to post and obey this notice. 3 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 MAJESTIC STAR CASINO, LLC 3 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 refuse to bargain with United Steelwork­ ers of America, AFL–CIO–CLC, as the exclusive repre­ sentative 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 fol­ lowing bargaining unit: All full-time and regular part-time slot technicians em­ ployed by us at our facility currently located at One Buffington Harbor Drive, Gary, Indiana, but excluding all slot performance supervisors, sales persons, confi­ dential employees, managers, office clerical employees and guards, professional employees and supervisors as defined in the Act. THE MAJESTIC STAR CASINO, LLC