Hard Rock Hotel & Casino

National Labor Relations Board - Unpublished Board Decisions

Sep 28, 2010

28-RC-006680 (N.L.R.B. Sep. 28, 2010)

NOT TO BE INCLUDED LBP
IN BOUND VOLUMES Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
HARD ROCK HOLDINGS LLC d/b/a
HARD ROCK HOTEL AND CASINO
Employer
and Case 28-RC-6680
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS LOCAL 995
Petitioner
DECISION AND CERTIFICATION OF REPRESENTATIVE
The National Labor Relations Board, by a three-member panel, has considered
objections to and determinative challenges in an election held November 6, 2009, and
the hearing officer's report recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 17
for and 9 against the Petitioner, with 8 challenged ballots, a sufficient number to affect
the results.
The Board has reviewed the record in light of the exceptions and briefs, has
adopted the hearing officer's findings' and recommendation S,2 and finds that a
certification of representative should be issued.
1 The Employer has excepted to some of the hearing officer's credibility findings.
The Board's established policy is not to overrule a hearing officer's credibility resolutions
unless the clear preponderance of all the relevant evidence convinces us that they are
incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have carefully examined
the record and find no basis for reversing the findings.
The Application of the Caesars Tahoe test
The hearing officer's recommendation to sustain the Union's challenges to the
ballots of eight bell desk employees, who are "dual-rated" to work outside the bell desk
department, was based on his finding, under the first prong of the Board's three-
pronged test in Caesars Tahoe, 337 NLRB 1096, 1097 (2002), that the Stipulated
Election Agreement unambiguously excludes those employees from the unit. The
parties vigorously debate that question. The Employer contends that the unit
description "speaks of duties, not job titles or classifications" and that, accordingly, the
phrase "Valet Parking employees" should be read to include all employees who perform
valet parking work, including these dual-rated employees who perform such work on
occasion. On the other hand, the Union contends that the phrase "Valet Parking
employees" describes a category of employees that includes the three job
classifications of employees in the valet department ("lead aftendant," "full-time
aftendant," and "on-call attendant"), not the duties performed by those employees. We
find that the Stipulated Election Agreement is amenable to either interpretation and,
accordingly, that the phrase "Valet Parking employees" does not clearly refer to either a
job category or job duties. Accordingly, we find, contrary to the hearing officer, that the
unit description is ambiguous with respect to the dual-rated employees.
Because we find that the first prong of the Caesars Tahoe test does not resolve
the issue, we proceed to the second prong of the Caesars Tahoe test: an examination
of the parties' intent through normal methods of contract interpretation, including the
2 In the absence of exceptions, we adopt pro forma the hearing officer's
recommendations to overrule the Employer's Objections 1, 3, and 5. We further adopt the
hearing officer's analysis of and recommendations to overrule the Employer's Objections 2, 4,
and 6.
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examination of extrinsic evidence. For the reasons set forth in the hearing officer's
report, we adopt his finding that the extrinsic evidence does not conclusively establish
whether the parties agreed to include the dual-rated employees in the unit.
Finally, because the intent of the parties still cannot be discerned, we proceed to
the third prong of the Caesars Tahoe test: a determination of the bargaining unit by
means of our standard community-of-interest analysis. We adopt the hearing officer's
finding that the dual-rated employees do not share a community of interest with the unit
employees based on the evidence demonstrating that: (1) none of the four dual-rated
employees who testified at the hearing had worked as a valet with any consistency, and
only one of them had worked "more than a handful" of days as a valet during the 3
months preceding the election; (2) the four employees who testified could not recall any
of the other four dual-rated employees working in the valet department more recently
than 2 months before the election; and (3) employees in the bell desk department,
including the dual-rated employees, work independently of - and are supervised
separately from - valet employees, and they do not share in the same tip pool except
when they are assigned to the valet department for an entire sh ift.3
Accordingly, we agree with the hearing officer that the eight dual-rated
employees do not belong in the unit. Therefore, the challenges to their ballots were
properly sustained.
3 In adopting the hearing officer's finding that the dual-rated employees lack a
community of interest with the unit, we do not rely on his citation of Harold J. Becker
Co., 343 NLRB 51, 52 (2004).
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CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have been cast for
International Brotherhood of Teamsters Local 995 and that it is the exclusive collective-
bargaining representative of the employees in the following appropriate unit:
All full-time and part-time Valet Parking employees employed by the
Employer at 4455 Paradise Road, Las Vegas, Nevada, excluding all other
employees, office clerical employees, guards, and supervisors as defined
in the Act.
Dated, Washington, D.C., September 28, 2010.
Wilma B. Liebman, Chairman
Craig Becker, Member
Mark Gaston Pearce, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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