ARIA RESORT & CASINO, LLC d/b/a ARIA

ARIA 323 363 NLRB No. 24 Aria Resort & Casino, LLC d/b/a Aria and Interna- tional Union of Operating Engineers, Local 501, AFL–CIO, Petitioner. Case 28–RC–154093 November 3, 2015 ORDER DENYING REVIEW BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Employer’s request for review of the Regional Di- rector’s Decision and Direction of Election is denied as it raises no substantial issues warranting review.1 In denying review, we agree with the Regional Direc- tor’s reliance on Advance Pattern Co., 80 NLRB 29 (1948). Under Advance Pattern and its progeny, the Board has consistently held that so long as a question concerning representation in fact exists, the Board will not dismiss a petition simply because—as in this case—a petitioner fails to indicate on the petition form whether it has requested recognition and the employer has declined to extend recognition. The Petitioner’s request for recognition and the Employer’s declination at the hearing were sufficient to establish the existence of a question concerning representation. See, e.g., Alamo-Braun Beef Co., 128 NLRB 32, 33 fn. 5 (1960).2 To dismiss the peti- tion under these circumstances would be an abrogation of the Board’s statutory duty—set forth in Section 9(c)(1) of the Act—to resolve questions concerning representa- tion. Contrary to the Employer’s contentions, the Board’s continued adherence to this longstanding interpretation of its own rules and regulations is not arbitrary and ca- pricious, and the Board has stated that a failure to indi- cate on a petition form that a request for recognition was made “does not prejudice” employers. Dependable Parts, Inc., 112 NLRB 581, 582 (1955); Economy Furni- ture, 122 NLRB 1113, 1114 fn. 2 (1959). See generally NLRB v. Superior Cable Corp., 246 F.2d 539 (4th Cir. 1957) (per curiam) (“[I]t would be a senseless technicali- ty to hold that the representation proceeding should have been dismissed and the parties required to initiate a new proceeding, where the demand and refusal of recognition had been established at the hearing itself and the defect in the petition could be cured and was cured by amend- ment.”). Moreover, nothing in the Board’s recent 1 Pertinent portions of the Regional Director’s Decision and Direc- tion of Election are attached. 2 See also, Florida Tile Industries, 130 NLRB 897, 898 (1961). Chairman Pearce notes that, indeed, “[t]he filing of a petition itself constitutes a sufficient demand for recognition.” Id. and cited cases. See also Alamo-Braun Beef, 128 NLRB at 33 fn. 5. amendments to its rules and regulations purports to alter its longstanding practice in this area. . . . . APPENDIX DECISION AND DIRECTION OF ELECTION International Union of Operating Engineers, Local 501, AFL–CIO (the Petitioner) seeks to represent a unit of all full- time and part-time tram operators employed by Aria Resort & Casino, LLC d/b/a Aria (the Employer) at its Las Vegas, Neva- da facility. The Employer asserts that the petition does not satisfy the mandatory obligations in Section 102.61(a)(8) of the Board’s Rules and Regulations.1 The parties do not agree on a date for an election, as the Petitioner requested June 26, 2015, while the Employer requested July 7 or 8, 2015, based on the number of employees working on those dates. A hearing officer of the Board held a preelection hearing in this matter and the parties orally argued their respective posi- tions prior to the close of the hearing. As described below, based on the record and relevant Board case, including the Board’s decision in Advance Pattern Co., 80 NLRB 29 (1948), I find that the petition is sufficient. The Employer’s Operations The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act. The Employer is a Nevada corporation with offices and place of business in Las Vegas, Nevada, which is the only operation involved herein, where it operates a casino and hotel, and pro- vides convention and meeting spaces, restaurant services, enter- tainment services, and other amusement services. The petitioned-for unit is comprised of six employees whose job assignment is limited to operating the tram at the Employ- er’s facility. At hearing, the parties agreed to the description for and the appropriateness of the petitioned-for unit. At hearing, the Employer again raised its objection to the preelection hearing and petition for the reasons expressed in its motion to dismiss filed on June 16, 2015. It averred that it never argued that the Petitioner must request recognition before it could file a petition, and that its argument was limited to the sufficiency of the petition itself. The Employer’s motion to dismiss reads otherwise.2 The Employer argues that the peti- tion fails to state whether the Petitioner requested recognition before filing its petition, asserting that this is a requirement pursuant to Section 102.61(a)(8) of the Board’s Rules and Reg- 1 A petition for certification when filed by an employee or group of employees or an individual or labor organization acting in their behalf, shall contain the following: [a] statement that the employer declines to recognize the petitioner as the representative within the meaning of Sec. 9(a) of the Act or that the labor organization is currently recog- nized but desires certification under the Act. 2 “In this case, the petition does not satisfy the mandatory obliga- tions imposed by Sec. 102.61(a). The petition does not include a ‘statement that the employer declines to recognize the petitioner as the representative within the meaning of Sec. 9(a).’ The Union left Sec. 7 of the petition completely blank and failed to ever request that the Employer recognize it as the representative of the petitioned for unit.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 324 ulations and Section 7(a) on Form NLRB-502(RC) (RC Peti- tion). As explained in the Order denying Employer’s motion to dismiss petition (Order) on June 19, 2015, there was no merit to the Employer’s arguments that the Petitioner failed to comply with the requirements in the Board’s Rules and Regulations or that the filing of the petition was contingent on the Petitioner making an offer of recognition to the Employer. Section 102.61(a), which addresses petitions for certifica- tions, does not impose any condition requiring a petitioner to demand recognition from the Employer under Section 9(a) of the National Labor Relations Act (the Act) before filing a peti- tion for certification. Similarly, Section 102.61(a)(8), which describes the contents that must accompany a petition for certi- fication at the time of service, does not impose this demand for recognition requirement. Although the Employer asserts that the petitioner must demand recognition under these rules, Sec- tion 102.61(a)(8) simply does not support this argument. Ra- ther, Section 102.61(a)(8) describes that the petition for certifi- cation form provides a section for the petitioner to note one of two scenarios: (a) whether a request for recognition has been made and whether the employer declined to recognize the peti- tioner as a representative under Section 9(a) of the Act, or (b) whether the petitioner is currently recognized but desires certi- fication. There is nothing on the form stating that the request for recognition action is a condition precedent for filing a valid petition. Moreover, each of the Employer’s arguments is con- trary to Board law. Advance Pattern Co., 80 NLRB 29, 31–38 (1948) (rejecting motion to dismiss and rejecting a strictly lit- eral interpretation of language nearly identical3 to Sec. 102.61(a)(8) as it “can produce only the atmosphere of a tense- ly litigated law suit in which all sides will be quick to seize upon technical defects in pleadings to gain substantive victo- ries”).4 For the reasons discussed above, the Employer has not estab- lished that the Petitioner has failed to comply with its obliga- tions, and I am again denying the Employer’s Motion to Dis- miss. . . . . 3 The language in the Board’s rules at the time did not contain the additional provision “or that the labor organization is currently recog- nized but desires certification under the Act.” 4 “[W]e adhered faithfully to the practice of deciding on the merits any case in which it appeared that a real question concerning represen- tation existed, despite the fortuity that a petition might have disclosed faulty, incomplete, inaccurate, or otherwise imperfect information. We found that the Board could only achieve a fair measure of success in performing its obligations by following that policy.” Id. at 31.