Casino Aztar

National Labor Relations Board - Board Decisions

Mar 19, 2008

352 N.L.R.B. 41 (N.L.R.B. 2008)

352 NLRB No. 41
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive 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.
Aztar Indiana Gaming Company, LLC, d/b/a Casino
Aztar and International Union, United Auto-
mobile, Aerospace, and Agricultural Implement
Workers, UAW. Case 25–CA–30558
March 19, 2008
DECISION AND ORDER
BY 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 21, 2007,
the General Counsel issued the complaint on January 4,
2008, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain following the Union’s certification in Case
25–RC–10403. (Official notice is taken of the “record”
in the representation proceeding as defined in the
Board’s Rules and Regulations, Sec. 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.
On January 23, 2008, the General Counsel filed a mo-
tion to strike portions of Respondent’s answer, motion to
transfer proceeding to Board, and Motion for Summary
Judgment, and the Charging Party filed a statement in
support of the General Counsel’s motions. On January
30, 2008, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent filed
a response, which included a motion seeking to confirm
that the entire record in the underlying representation
proceeding is before the Board for review and will be
included for transmittal to the appropriate court for re-
view in the event that the General Counsel’s Motion for
Summary Judgment is granted. The General Counsel
filed a response to the Respondent’s motion.
Ruling on Motion for Summary Judgment1
In its answer and response, the Respondent admits its
refusal to bargain, but contests the validity of the Union’s
certification on the basis of its objections to the Board’s
unit determinations 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 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.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a limited liabil-
ity company with an office and place of business in
Evansville, Indiana, has been engaged in the casino gam-
ing and hospitality business. During the 12-month pe-
riod preceding issuance of the complaint, the Respon-
dent, in conducting its business operations described
above, purchased and received at its Evansville, Indiana

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
2 In light of our decision to grant the Motion for Summary Judgment,
we find it unnecessary to rule on the General Counsel’s motion to strike
portions of the Respondent’s answer to the complaint. See FPA Medi-
cal Mgmt., Inc., 324 NLRB 802 fn. 2 (1997), enf. denied in part on
other grounds 157 F.3d 909 (D.C. Cir. 1998); Teledyne Economic De-
velopment, 321 NLRB 58 fn. 2 (1996), enfd. 108 F.3d 56 (4th Cir.
1997).
Further, we deny the Respondent’s motion to confirm that the entire
record in the underlying representation proceeding is before the Board
for review. As stated above, the Board does not redetermine represen-
tation issues in unfair labor proceedings unless a party presents previ-
ously unavailable evidence or alleges other special circumstances that
warrant reconsideration. See also National Van Lines, 123 NLRB
1272, 1273 (1959), enf. denied on other grounds 283 F.2d 402 (7th Cir.
1960) (Board held that the Act does not require in an unfair labor prac-
tice case that a prior representation case be admitted into evidence). Of
course, upon petition for court enforcement or review of a Board order,
the record in the underlying representation case will be included as part
of the entire record that must be filed, as stated in Sec. 9(d) of the Act.
Id. at 1274.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
facility goods valued in excess of $50,000 directly from
points outside the State of Indiana.
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 October
27, 2007, the Board certified the Union on November 28,
2007, as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:
All full-time and regular part-time dealers, dual rate
dealers/floor supervisors, and floor supervisors em-
ployed by Respondent at its Evansville, Indiana facility,
but excluding all office clerical employees, professional
employees, managerial employees, and all guards and
supervisors as defined in the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under Sec-
tion 9(a) of the Act.3
B. Refusal to Bargain
About December 6, 2007, the Union, by letter, re-
quested that the Respondent recognize and bargain col-
lectively with it as the exclusive collective-bargaining
representative of the certified unit. Since about Decem-
ber 17, 2007, the Respondent, by letter, has failed and
refused to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the unit.
We find that this failure and refusal constitutes an
unlawful refusal to recognize and bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since about December 17,
2007, to recognize and bargain with the Union as the

3 In its answer, the Respondent denies the complaint allegations that
the named employees constitute an appropriate unit, that the Union was
certified as the exclusive collective-bargaining representative of the
unit on November 28, 2007, that its failure and refusal to bargain vio-
lated Sec. 8(a)(5) and (1) of the Act, and that its unfair labor practices
affect commerce within the meaning of Sec. 2(6) and (7) of the Act. A
copy of the Board’s Certification of Representative is attached as Exh.
7 to its motion, showing the date as alleged. Paragraph 5 of the Re-
spondent’s answer admits that the certification issued but denies that
the certification is valid. In its letter to the Union dated December 17,
2007, the Respondent states that it declined the Union’s request to
recognize the Union as the collective-bargaining representative for the
crew members. The Respondent does not contest the authenticity of
these documents. Accordingly, we find the relevant complaint allega-
tions to be established as true.
exclusive collective-bargaining representative of the em-
ployees in the appropriate unit, the Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 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 on 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); and 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, Aztar Indiana Gaming Company, LLC,
d/b/a Casino Aztar, Evansville, Indiana, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Union, United Automobile, Aerospace, and
Agricultural Implement Workers, UAW, as the exclusive
collective-bargaining representative 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, recognize and bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit on terms and conditions of
employment, and, if an understanding is reached, em-
body the understanding in a signed agreement:
All full-time and regular part-time dealers, dual rate
dealers/floor supervisors, and floor supervisors em-
ployed by Respondent at its Evansville, Indiana facility,
but excluding all office clerical employees, professional
employees, managerial employees, and all guards and
supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Evansville, Indiana, copies of the attached
CASINO AZTAR 3
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 25,
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. Reasonable steps shall be taken by the
Respondent 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since December 17, 2007.
(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
comply.
Dated, Washington, D.C. March 19, 2008
Wilma B. Liebman, Member
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

4 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 Stated Court of Appeals Enforcing an Order of the
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 had 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
benefit 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, United Automobile, Aero-
space, and Agricultural Implement Workers, UAW, 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
guaranteed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the following bargaining unit:
All full-time and regular part-time dealers, dual rate
dealers/floor supervisors, and floor supervisors em-
ployed by us at our Evansville, Indiana facility, but ex-
cluding all office clerical employees, professional em-
ployees, managerial employees, and all guards and su-
pervisors as defined in the Act.
AZTAR INDIANA GAMING CO., LLC, D/B/A
CASINO AZTAR