Aladdin Hotel

National Labor Relations Board - Board Decisions

May 22, 1984

270 N.L.R.B. 838 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N & T Associates, Inc. d/b/a Aladdin Hotel and
General Sales Drivers, Delivery Drivers &
Helpers Local #14, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Petitioner. Case 31-
RC-5526
22 May 1984
DECISION ON REVIEW
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 14 July 1983 the Regional Director for
Region 31 issued a Decision and Direction of Elec-
tion in the above-captioned proceeding in which he
found appropriate the Petitioner's requested unit of
all casino employees, including "21" dealers, keno
runners, keno writers,' bacarrat dealers, bacarrat
shills, and craps dealers, excluding all boxmen,
floormen, pit bosses, clerical employees, guards and
supervisors as defined in the Act. In accordance
with Section 102.67 of the National Labor Rela-
tions Board Rules and Regulations the Employer
filed a timely request for review of the Regional
Director's decision on the ground that the Region-
al Director's failure to exclude from the unit those
craps and 21 dealers who substitute for supervisory
and/or managerial personnel on a regular and sub-
stantial basis is a clear departure from officially re-
ported Board precedent.
By telegraphic order dated 12 August 1983 the
National Labor Relations Board granted the Em-
ployer's request for review and stayed the election
pending review.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reviewed the entire record in this
case and makes the following findings.
The Employer is engaged in the operation of a
hotel and gambling casino in Las Vegas, Nevada.
Among the casino games are the following: craps;
21, commonly known as blackjack; baccarat; keno;
and slot machines. The casino operates three 8-
hour shifts, 7 days a week. Of the three shifts, the
night, or swing shift, has the most business and Fri-
days and Saturdays are the busiest days of the
week. The executive vice president in charge of
casino operations has overall responsibility for the
casino operations. Reporting to him is the casino
manager who directs a number of shift managers,
e.g., shift manager in charge of craps and shift
I The Regional Director issued an erratum to his Decision and Direc-
tion of Election on 22 July 1983 to correct an inadvertent omission of
keno writers from the unit description.
270 NLRB No. 122
manager in charge of 21. The shift managers also
have backups called pit bosses.
Craps, a dice game, is played on a 14-foot-long
rectangular table. The Employer is licensed to op-
erate five craps tables, but the number of tables ac-
tually open for play at any given time depends on
the time of the day and the day of the week.
During a typical day shift, the Employer assigns
four dealers, two boxmen, and one floorman to
each craps table. Two of the dealers place, collect,
and pay customer bets; one dealer works as a stick-
man, controlling the dice and declaring winning
and losing bets; and one dealer is on break. The
dealers rotate their duties throughout the shift,
working as a dealer, stickman, and relief person.
Although two boxmen are assigned to each
table, they do not work the table together but in-
stead take turns, relieving one another during the
shift. The boxman, among other things, controls
the speed of the game through the stickman; ob-
serves all bets placed, called, and paid; monitors
the flow of money between the Employer and the
table, and the table and the customers; decides
within limits when to extend credit to customers;
limits the number of customers who can play at the
table; directs the delivery of drinks to customers;
and enforces the game rules, the Employer's play-
ing policies, and dealing procedures. Also, the
boxman has the authority to issue oral warnings to
the dealers and to remove them from the tables and
send them home for a breach of the Employer's
policies. The dealers may not argue with the
boxman, but must follow his directions throughout
the course of the game.
The floorman for the craps game usually walks
around among several craps tables, even though he
is generally assigned to a certain table. The floor-
man has under his supervision the boxman and
dealers, but the boxman is in complete charge of
the craps game.
The Employer is licensed to operate 32 black-
jack tables for the card game referred to herein as
21. Again, the number of tables actually open for
play is dependent on the time of day, day of the
week, and season of the year. The 21 and craps op-
erations are separate. One dealer is assigned to each
21 table and he receives his supervision and direc-
tion from a floorperson who is responsible for four
tables. The shift boss or his backup is in charge of
all the 21 operations on a given shift.
The 21 floorperson's duties are closely aligned
with those of the craps boxmen. The 21 floormen
enforce the game rules, dealing procedures, and the
Employer's policies; monitor the dealers' perform-
ances; and have the authority to issue oral and
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ALADDIN HOTEL
written reprimands to the dealers and remove them
from the game for rule or policy infringement.
The parties stipulated and the Regional Director
found that persons who work full time as craps
boxmen and 21 floormen are supervisors within the
meaning of Section 2(11) of the Act because they
responsibly direct employees in their work using
independent discretion and judgment, have the in-
dependent authority to issue oral reprimands, and
can effectively recommend further discipline.
The Employer routinely uses craps dealers as
substitutes for craps boxmen and 21 dealers as sub-
stitutes for 21 floormen on weekends and holidays
as well as during vacations, peak business seasons,
and illnesses. Substitutes are selected on the basis of
Employer rotation, scheduling considerations, and
dealer competency. The Employer attempts to pro-
mote from within; thus the substitution process is
also a training ground for dealers who desire to
become full-time boxmen and floormen. In fact 50
percent of the full-time floormen were previously
21 dealers for the Employer and had acted as sub-
stitutes before their promotions. All of the craps
boxmen have been dealers.
The Employer regularly employs approximately
17 full-time craps boxmen and 35 craps dealers.
Witness Robert Hamilton testified that about 9 to
10 day-shift craps dealers are scheduled on the av-
erage of I day a week to work as substitute
boxmen on both the graveyard and day shifts. In
addition, the record shows that three to four other
day-shift dealers are scheduled to substitute for
boxmen approximately 2 days per month on the
day shift. On the swing, or night shift, 17 craps
dealers are scheduled to substitute for swing-shift
boxmen. These dealers, on a rotational basis, work
5 days I week and 4 days the next week as dealers,
but spend the fifth day of the second week work-
ing as boxmen on the swing shift. In addition to the
scheduled substitutions, craps dealers are also asked
to substitute when regular boxmen are unavailable
due to illness or other reasons. The record testimo-
ny establishes that virtually all craps dealers substi-
tute for boxmen an average of two to four times
per month.
The Employer regularly employs approximately
14 full-time 21 floormen and ninety 21 dealers. Ac-
cording to record testimony, about 15 to 20 of the
21 dealers substitute for floormen on all three
shifts, and especially on the graveyard shift for
which they are scheduled to work as floormen on
a daily basis. They also substitute on weekends,
holidays, and during other peak periods. Approxi-
mately three of the dealers spend 75 percent of
their time as substitute 21 floormen, but the great
majority of the 21 dealers do not substitute for
floorpersons. Those who do substitute average a
minimum of about 2 to 3 days per month.
In addition to the foregoing evidence adduced
from the testimony of various witnsses, the Em-
ployer also introduced into evideice an exhibit
compiled from payroll records which specifies the
dates that craps dealers substituted for boxmen for
the period from January 1983 through 5 June 1983
and the dates that 21 dealers substituted for floor-
men between May 1983 and 5 June 1983. Accord-
ing to the exhibit, of the 33 craps dealers listed,
only 1 dealer averaged as many as 4 days per
month as a boxman. Approximately 15 dealers sub-
stituted for boxmen on the average of between 2 to
4 days per month, and approximately 18 substituted
an average of fewer than 2 days per month. As for
floormen, only nine 21 dealers were listed as
having substituted for 21 floormen. Of these, two
worked approximately three or more times per
week, four worked about two or more times per
weeks, two worked about 1 day per week, and one
worked less than 1 day per week.
The record also establishes that dealers who sub-
stitute for boxmen or 21 floormen possess the same
authority and enjoy the same wage rates during the
shifts worked as do the boxmen and floormen for
whom they substitute, although they do not receive
a guaranteed minimum weekly salary or the some
vacation and insurance benefits as do the regular
boxmen and floormen. Dealers also are not allowed
to park in the section reserved for full-time floor-
men, but continue to park in the spaces designated
for dealers and full-time boxmen. However, when
substituting, the dealers, like regular boxmen and
floormen, wear business suits instead of their regu-
lar dealers uniforms. They are entitled to dine in
the coffee shop designated for supervisory person-
nel when serving as boxmen or floormen, rather
than in their usual area called the Help's Hall. Al-
though the dealers may participate in a share of
gratuities when working as dealers, they, like full-
time boxmen and floormen, cannot receive gratu-
ities when working as a substitute.
It is clear from the record, as the Regional Di-
rector found, that full-time boxmen and floormen
are statutory supervisors and that dealers possess
the full extent of their supervisory authority when
substituting for the full-time boxmen and floormen.
However, in determining whether the dealers who
substitute should be excluded as supervisors, the
Regional Director erred in finding that only those
craps and 21 dealers who spent more than 50 per-
cent of their time acting as boxmen or floormen
would be excluded, in accordance with Westing-
839
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
house Electric Corp.2 Westinghouse is inapplicable
here because the lead engineers who were found to
be supervisors in that case performed as supervi-
sors only at paticular projects, at the premises of
customers, and over nonprofessional craft employ-
ees who were not unit employees. Also, while su-
pervising they were clearly removed from their
nonsupervisory work and their status would shift
from supervisory to nonsupervisory for measurable
and continuous amounts of time with a sharp de-
marcation of their duties in each position. Here,
unlike Westinghouse, substitute boxmen and floor-
men supervise dealers, the very employees included
in the unit. Moreover, substitute boxmen and floor-
men spend a portion of their time dealing and a
portion supervising during the same work period,
in the same department with essentially the same
complement of employees, and thus there is no
clear separation between the dealers' supervisory
and nonsupervisory duties. See Doctors' Hospital of
Modesto, 183 NLRB 950 (1970).
In these circumstances the appropriate test for
determining the status of employees who substitute
for supervisors is whether the part-time supervisors
spend a regular and substantial portion of their
working time performing supervisory' tasks or
whether such substitution is merely sporadic and
insignificant. Honda of San Diego, 254 NLRB 1248
(1981). Thus, in Honda, where an employee substi-
tuted regularly for the service department manager
10 of his 40 working hours each week, and pos-
sessed full supervisory authority during those 10
hours, the substitute supervisor was held to be a
statutory supervisor. Likewise, in Doctors' Hospital
of Modesto, supra, the Board determined that relief
head nurses who regularly substituted for floor
head nurses 2 days per week would have been ex-
cluded as supervisors had they also possessed su-
pervisory authority while substituting. In Swift &
Co., 129 NLRB 1391 (1961), the Board excluded a
draftsman-estimator as a supervisor because he ex-
ercised supervisory authority during the 15 percent
of his worktime that he substituted for departmen-
tal foremen. Similarly, in Sewell, Inc., 207 NLRB
325, 330-332 (1973), two relief persons who pos-
' 163 NLRB 723 (1967), enfd. 424 F.2d 1151 (7th Cir. 1970).
sessed supervisory authority, when they worked,
respectively, I day every 2 weeks and 2 out of 8
working days as substitute supervisors, were
deemed to be 2(11) supervisors within the meaning
of Section 2(11).
Here the record clearly establishes that substitu-
tion by craps and 21 dealers is neither sporadic nor
irregular as they regularly substitute as a result of
the Employer's established, routine practice of
scheduling dealers to work as substitutes for full-
time boxmen and floormen. Moreover, the record
demonstrates that a number of the dealers spend
substantial amounts of their working time substitut-
ing for statutory supervisors. Accordingly, we find
that those craps and 21 dealers who have substitut-
ed for boxmen and floormen on the average of at
least two times per month over the past three
months are supervisors within the meaning of Sec-
tion 2(11) of the Act and are excluded from the
unit found appropriate by the Regional Director.3
We shall remand this case to the Regional Direc-
tor for Region 31 for the purpose of conducting an
election pursuant to his Decision and Direction of
Election except that the period for determining eli-
gibility shall be the payroll period ending immedi-
ately before the date of this Decision on Review.
To ensure that all eligible voters have the oppor-
tunity to be informed of the issues in the exercise
of their statutory right to vote, all parties to the
election should have access to a list of voters and
their addresses that may be used to communicate
with them. Excelsior Underwear, 156 NLRB 1236
(1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759
(1969). Accordingly, it is directed that an eligibility
list containing the names and addresses of all the
eligible voters must be filed by the Employer with
the Regional Director within 7 days from the date
of this Decision on Review. The Regional Director
shall make the list available to all parties to the
election. No extension of time to file this list shall
be granted by the Regional Director except in ex-
traordinary circumstances. Failure to comply with
this requirement shall be grounds for setting aside
the election if proper objections are filed.
I In view of our decision herein we find it unnecessary to determine
whether boxmen and floormen are also managerial employees.
840