Landmark Hotel & Casino

924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Landmark Hotel & Casino, Inc. d/b/a Landmark Hotel & Casino and Operating Engineers, Local 501, affiliated with International Union of Op- erating Engineers, AFL-CIO and Carpenters Union, Local 1780, affiliated with United Broth- erhood of Carpenters and Joiners of America, AFL-CIO and Local Joint Executive Board of Las Vegas, affiliated with Hotel Employees and Restaurant Employees International Union, AFL-CIO. Cases 31-CA-16256, 31-CA-16271, and 31-CA-16287 September 27, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY Upon charges filed by the Operating Engineers, Local 501, affiliated with International Union of Operating Engineers, AFL-CIO (Local 501) on January 6, 1987, the Carpenters Union, Local 1780, affiliated with United Brotherhood of Carpenters and Joiners of Amenca, AFL-CIO (Local 1780) on January 15, 1987, and the Local Joint Executive Board of Las Vegas, affiliated with Hotel Employ- ees and Restaurant Employees International Union, AFL-CIO (Local Joint Executive Board) on Janu- ary 22, 1987, the General Counsel of the National Labor Relations Board issued an order consolidat- ing cases, amended consolidated complaint and notice of reset heanng against Landmark Hotel and Casino, the Respondent, alleging that it has violat- ed Section 8(a)(5) and (1) of the National Labor Relations Act Although properly served copies of the charges and the amended consolidated com- plaint, the Respondent has failed to file an answer On June 21, 1990, the General Counsel filed a Motion for Summary Judgment On June 22, 1990, the Board issued an Order transfernng the pro- ceeding to the Board and a Notice to Show Cause why the motion should not be granted The Re- spondent filed no response The allegations in the motion are therefore undisputed The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel Ruling on Motion for Summary Judgment Section 102 20 of the Board's Rules and Regula- tions provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown The complaint states that unless an answer is filed within 14 days of service, "all of the allegations in the Amended Consolidated Complaint shall be deemed to be ad- mitted to be true and may be so found by the Board" Further, the undisputed allegations in the Motion for Summary Judgment disclose that coun- sel for the General Counsel, by letter dated June 1, 1990, notified the Respondent that unless an answer was filed by June 13, 1990, a Motion for Summary Judgment would be filed Dunng a telephone con- versation on June 6, 1990, counsel for the General Counsel, in response to an inquiry, informed Timo- thy Cory, a representative of the Respondent, that the General Counsel was reluctant to place this proceeding in abeyance because the proceedings have already been delayed for months, at the Re- spondent's request, pending the Respondent's un- successful appeal to the Ninth Circuit Court of Ap- peals in Landmark Hotel & Casino, 872 F 2d 857 (1989) In the absence of good cause being shown for the failure to file a timely answer, we grant the General Counsel's Motion for Summary Judgment On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, a Nevada corporation, with an office and pnncipal place of business located in Las Vegas, Nevada, is engaged in the operation of a hotel and casino The Respondent, in the course and conduct of its busmess operations, annually purchases and receives goods or services valued in excess of $50,000 directly from suppliers located outside the State of Nevada We find that the Re- spondent is an employer engaged in commerce within the meamng of Section 2(6) and (7) of the Act and that each of the Unions is a labor organi- zation within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES Since approximately October 1983, Local 501 has been the exclusive bargaining representative under Section 9(a) of the Act of the employees in the unit designated as Unit A in paragraph 6 of the amended consolidated complaint The Respondent and Local 501 were parties to a collective-bargain- ing agreement which ran from 1983-1987 Since approximately June 1983, Local 1780 has been the exclusive bargaining representative under Section 9(a) of the Act of the employees in the unit desig- nated as Unit B in paragraph 6 of the amended consolidated complaint The Respondent and Local 1780 were parties to a collective-bargaining agree- ment which ran from 1983-1987 Since approxi- mately December 1983, the Local Joint Executive Board, for and on behalf of Culinary Workers 299 NLRB No 142 LANDMARK HOTEL & CASINO 925 Union, Local No 226 and Bartenders Union, Local 16, affiliates of Hotel Employees and Restaurant Employees International Union, AFL-CIO, has been the exclusive bargaining representative under Section 9(a) of the Act of the employees in the unit designated as Unit C in paragraph 6 of the amend- ed consolidated complaint The Respondent and the Local Joint Executive Board were parties to a collective-bargaining agreement which ran from 1984-1989 On or about July 31, 1985, the Respondent filed a petition for reorganization under Chapter 11 of the United States Bankruptcy Code with the United States Bankruptcy Court, District of Nevada (Bankruptcy Court) On or about Decem- ber 26, 1985, the Respondent requested that the Bankruptcy Court approve the Respondent's rejec- tion of its collective-bargaining agreements with Local 501, Local 1780, and the Local Joint Execu- tive Board The Bankruptcy Court rejected the Re- spondent's request on January 24, 1986 The Respondent filed a supplemental application for rejection of the three agreements on January 31, 1986 In its supplemental application, the Re- spondent requested, inter alai, that its obligations under the health and welfare provisions in each agreement be deleted and that all employees be placed under the Respondent's own medical insur- ance and hospitalization plans The Bankruptcy Court conducted a hearing on February 14, 1986, at which time it granted interim relief to the Re- spondent in which it required the Respondent to continue to participate in the plans subject to the condition that there be no future increase in the rate of contribution to any of the plans On June 2, 1986, the Bankruptcy Court issued a written order of this interim relief On January 5, 1987, the Bankruptcy Court au- thorized the Respondent's rejection of the collec- tive-bargammg agreements pursuant to the Re- spondent's January 31, 1986 request A written order was entered February 10, 1987 On September 30, 1987, a Bankruptcy Appellate Panel upheld the Bankruptcy Court's February 14, 1986 interim order On April 11, 1989, the Ninth Circuit Court of Appeals upheld the Bankruptcy Appellate Panel's decision On or about January 3, 1990, the Bankruptcy Court converted the Re- spondent from a Chapter 11 (Bankruptcy Code) Debtor to a Chapter 7 (Bankruptcy Code) Debtor Since on or about July 6, 1986, and continuing until January 5, 1987, the day the Bankruptcy Court authorized the Respondent's rejection of the collective-bargaining agreements, the Respondent has unilaterally failed to make health and welfare trust fund contributions required under the terms of the 1983-1987 collective-bargaining agreement with Local 501, as modified by the Bankruptcy Court's order of February 14, 1986 Since on or about July 22, 1986, and continuing until January 5, 1987, the day the Bankruptcy Court authorized the Respondent's rejection of the collective-bargaimng agreements, the Respondent unilaterally failed to make health and welfare trust fund contributions required under the terms of the 1984-1989 collective-bargaining agreement with the Local Joint Executive Board, as modified by the Bankruptcy Court's order of February 14, 1986 Since on or about August 1986, and contmumg until January 5, 1987, the day the Bankruptcy Court authorized the Respondent's rejection of the collective-bargaining agreements, the Respondent unilaterally failed to make health and welfare trust fund contributions required under the terms of the 1983-1987 collective-bargaining agreement with Local 1780, as modified by the Bankruptcy Court's order of February 14, 1986 We find that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act by the above-de- scribed unilateral conduct CONCLUSION OF LAW By failing and refusing to make the health and welfare trust fund contributions (1) for the period commencing on or about July 6, 1986, to January 5, 1987, as required by the terms of the 1983-1987 agreement with Local 501, (2) for the period com- mencing on or about July 22, 1986, to January 5, 1987, as required by the terms of the 1984-1989 agreement with the Local Joint Executive Board, and (3) for the period commencing on or about August 1986, to January 5, 1987, as required by the terms of the 1983-1987 agreement with Local 1780, 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 engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act We shall order the Respondent to make all con- tractually required payments to the health and wel- fare trust funds owing (1) under the agreement with Local 501 for the penod on or about July 6, 1986, to January 5, 1987, (2) under the agreement with the Local Joint Executive Board for the penod on or about July 22, 1986, to January 5, 926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1987, and (3) under the agreement with Local 1780 for the period on or about August 1986, to January 5, 1987' We shall also order the Respondent to make unit employees whole for any expenses they may have incurred plus interest because of the Re- spondent's failure to abide by the terms and condi- tions of its collective-bargaining agreements with each of the Unions as indicated above Such mone- tary amounts are to be computed in accordance with the Board's decisions in Ogle Protection Serv- ice, 183 NLRB 682 (1970) and Kraft Plumbing & Heating, 252 NLRB 891 fn 2 (1980), enfd 661 F 2d 940 (9th Or 1981) Interest shall be computed in the manner prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987) ORDER The National Labor Relations Board orders that the Respondent, Landmark Hotel & Casino, Inc d/b/a Landmark Hotel & Casino, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively with the Op- erating Engineers, Local 501, affiliated with the International Union of Operating Engineers, AFL- CIO, by refusing to comply with the terms of its collective-bargaining agreement with that Union ef- fective from 1983-1987, by unilaterally failing and refusing to make health and welfare trust fund con- tributions for the period on or about July 6, 1986, to January 5, 1987 (b) Refusing to bargain collectively with the Local Jomt Executive Board of Las Vegas, affili- ated with Hotel Employees and Restaurant Em- ployees International Union, AFL-CIO, by refus- ing to comply with the terms of its collective-bar- gaining agreement with that Union effective from 1984-1989, by unilaterally failing and refusing to make health and welfare trust fund contributions for the period on or about July 22, 1986, to Janu- ary 5, 1987 (c) Refusing to bargain collectively with the Car- penters Union, Local 1780, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, by refusing to comply with the terms of its collective-bargaining agreement with that Union effecuve from 1983-1987, by uni- laterally failing and refusing to make health and 'Because the provisions of the employee benefit fund agreements are vanable and complex, the Board does not provide for the payment of a fixed rate of Interest on unlawfully withheld fund payments at the adjudi- catory stage of the proceeding We leave to the compliance stage the question whether the Respondent must pay any additional amounts into the benefit funds in order to satisfy our "make-whole" remedy Such ad- ditional amounts shall be determined in the manner set forth in Menyweather Optical Co, 240 NLRB 1213, 1216 fn 7 (1979) welfare trust fund contributions for the penod on or about August 1986, to January 5, 1987 (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act 2 Take the followmg affirmative action neces- sary to effectuate the policies of the Act (a) Remit in accordance with the terms and con- ditions of each of the collective-bargaining agree- ments, the required health and welfare trust fund contributions which were withheld during the peri- ods specified above for each of the Unions, and make the employees and the funds whole in the manner set forth m the remedy section of this deci- sion (b) Preserve and, on request, make available to the Board or its agents for examining and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (c) Post at its facility in Las Vegas, Nevada, in the event it is still operating, copies of the attached notice marked "Appendix "2 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (d) In the event the facility is closed, mail the notice to each of the Unions and to the last known address of each of the employees m the three units who were employed at the facility during the peri- ods in which the unlawful unilateral conduct oc- curred (e) Notify the Regional Director in wntmg within 20 days from the date of this Order what steps the Respondent has taken to comply '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 Nation- al 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" LANDMARK HOTEL & CASINO 927 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 ordered us to post and abide by this notice WE WILL NOT refuse to bargain collectively with the Operating Engineers, Local 501, affiliated with the International Union of Operatmg Engineers, AFL-CIO, by refusing to comply with the terms of its collective-bargaining agreement effective from 1983-1987, by unilaterally failing and refusing to make health and welfare trust fund contributions for the period on or about July 6, 1986, to January 5, 1987 WE WILL NOT refuse to bargain collectively with the Local Joint Executive Board of Las Vegas, af- filiated with Hotel Employees and Restaurant Em- ployees International Union, AFL-CIO, by refus- ing to comply with the terms of its collective-bar- gaining agreement effective from 1984-1989, by unilaterally failmg and refusing to make health and welfare trust fund contributions for the period on or about July 22, 1986, to January 5, 1987 WE WILL NOT refuse to bargain collectively with the Carpenters Union, Local 1780, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, by refusing to comply with the terms of its collective-bargaining agree- ment effective from 1983-1987, by unilaterally fail- ing and refusing to make health and welfare trust fund contributions for the period on or about August 1986, to January 5, 1987 WE WILL NOT m any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL remit funds, in accordance with the terms and conditions of each of the collective-bar- gammg agreements, the required health and wel- fare trust fund contributions which were withheld during the periods specified above for each of the Unions, and make the employees and the funds whole, with interest, for any losses they incurred as a result of our failure to abide the terms and condi- tions of each of the collective-bargaining agree- ments LANDMARK HOTEL & CASINO, INC D/B/A LANDMARK HOTEL & CASINO