The Mirage Casino-Hotel d/b/a The Mirage

364 NLRB No. 1 NOTICE: This opinion is subject to formal revision before publication in the bound 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. The Mirage Casino-Hotel d/b/a The Mirage and In- ternational Union of Operating Engineers Local 501, AFL–CIO. Case 28–CA–170874 May 23, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MCFERRAN This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed on March 1, 2016, by International Union of Operating Engineers Local 501, AFL–CIO (the Union), the General Counsel issued the complaint on March 21, 2016, alleging that The Mi- rage Casino-Hotel d/b/a The Mirage1 (the Respondent) has violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Union following the Union’s certification in Case 28–RC– 154083. (Official notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations of the complaint, and asserting affirmative defenses. On April 5, 2016, the General Counsel filed a Motion for Summary Judgment. On April 6, 2016, 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 Union’s certification on the basis of its contentions, raised and rejected in the underlying representation proceeding, that (1) the Union’s represen- tation petition was invalid because it did not comply with Section 102.61(a)(8) of the Board’s Rules and Regula- tions, (2) the unit is inappropriate because the surveil- 1 We grant the General Counsel’s unopposed motion to amend the pleadings to reflect the Respondent’s correct name, and we have modi- fied the case caption accordingly. Therefore, the Respondent’s conten- tions—that the complaint should be dismissed and the motion for sum- mary judgment should be denied because the entity named in those documents does not employee the unit employees—are moot. lance technicians are guards within the meaning of Sec- tion 9(b)(3) of the Act and the Union represents non- guard employees of the Respondent, and (3) the unit is inappropriate because the surveillance technicians are confidential employees.2 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 or 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 At all material times, the Respondent has been a cor- poration company with an office and place of business in Las Vegas, Nevada (the Respondent’s facility) and has been engaged in operating a hotel and casino providing food, lodging, gaming, and entertainment. During the 12-month period ending March 1, 2016, the Respondent, in conducting its operations described above, purchased and received at the Respondent’s facili- ty goods valued in excess of $50,000 directly from points outside the State of Nevada and derived gross revenues in excess of $500,000. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(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 representation election held on July 7, 2015, the Union was certified on October 28, 2015, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: 2 The Respondent raises as an affirmative defense the assertion that the Board’s November 18, 2015 Order in Case 28–RC–154083 did not rule on the Respondent’s contention that the surveillance technicians are confidential employees. However, the Board’s November 18, 2015 Order denied the Respondent’s request for review of the Regional Director’s Decision and Direction of Election because it raised no substantial issues warranting review, thereby affirming the Regional Director’s finding that the Respondent failed to meet its burden of proof to establish that the surveillance technicians are confidential employees. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time surveillance techs at the Employer’s facility; excluding all other employees, including office, clerical, professional, guards, and su- pervisors as defined in the National Labor Relations Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain At all material times, Rick Jost held the position of vice president of human resources and has been a super- visor of the Respondent within the meaning of Section 2(11) and an agent of the Respondent within the meaning of Section 2(13) of the Act. At all material times, the senior associate general counsel labor & employment of MGM Resorts Interna- tional held the position of legal counsel of the Respond- ent and has been an agent of the Respondent within the meaning of Section 2(13) of the Act. On December 18, 2015 and February 26, 2016, the Union, by letters, requested that the Respondent recog- nize and bargain with it as the exclusive collective- bargaining representative of the unit. Since about January 12, 2016, the Respondent, by let- ter, has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining repre- sentative of the unit. We find that the Respondent’s conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about January 12, 2016, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, the Respondent has engaged in un- fair labor practices affecting commerce within the mean- ing 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 law, we shall construe the initial period of the certifi- cation as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Respondent, The Mirage Casino-Hotel d/b/a The Mirage, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Union of Operating Engineers Local 501, AFL–CIO as the exclusive collective-bargaining repre- sentative 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 exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement: All full-time and regular part-time surveillance techs at the Employer’s facility; excluding all other employees, including office, clerical, professional, guards, and su- pervisors as defined in the National Labor Relations 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.”3 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. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- 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 MIRAGE CASINO-HOTEL 3 ered by any other material. If 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 current em- ployees and former employees employed by the Re- spondent at any time since January 12, 2016. (c) Within 21 days after service by the Region, file with the Regional Director for Region 28 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. May 23, 2016 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Kent Y. Hirozawa, Member ______________________________________ Lauren McFerran, 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 violated Federal labor law and has ordered us to post and obey this notice. 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 fail and refuse to recognize and bargain with International Union of Operating Engineers Local 501, AFL–CIO as the exclusive collective-bargaining 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 listed above. 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 surveillance techs at our facility; excluding all other employees, including office, clerical, professional, guards, and supervisors as defined in the National Labor Relations Act. THE MIRAGE CASINO-HOTEL D/B/A THE MIRAGE The Board’s decision can be found at www.nlrb.gov/case/28–CA–170874 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.