Majestic Star Casino, LLC

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 407 (N.L.R.B. 2001)

MAJESTIC STAR CASINO, LLC 407
The Majestic Star Casino, LLC and American Mari-
time Officers, Petitioner. Case 13–RC–20262
August 27, 2001
DECISION AND ORDER REMANDING
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in and objections to a mail ballot election held from Feb-
ruary 18, 2000, until March 10, 2000, 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 3 for and 8
against the Petitioner, with 7 challenged ballots, a suffi-
cient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has decided to adopt the hearing
officer’s findings1 and recommendations2 regarding the
objections.
Contrary to our colleague, we agree with the hearing
officer that Petitioner’s Objection 3, which alleged that
the Employer solicited grievances during a preelection
campaign, should be sustained. The relevant facts are
these. During the course of the Petitioner’s campaign,
the Employer held a number of meetings with marine
department employees. There is no evidence that the
Employer had utilized similar meetings in the past. At
these meetings, managers discussed, inter alia, employ-
ees’ benefits and improving communication between
managers and other employees. Some of the meetings
were held six times to accommodate the various shifts.
In mid-January, able-bodied seaman Karl Wight (and
other employees, including mate Butterfield) attended a
meeting held by the Employer’s director of human re-
sources, Shannon Swift. Swift asked the group about
their problems and concerns, and stated that she did not
understand why the employees were seeking to unionize
all of a sudden, because the Employer was a pretty good
company. In response to Swift’s questions, employees
mentioned various problems, including the possible
change to a 12-hour day (an option which the Employer
had been considering since the last quarter of 1999), pay,
and scheduling. After the employees mentioned these
items, Swift stated that there was a lack of communica-
tion between management and employees, and, while
taking notes of employees’ concerns, told them that she
was going to look into these things the best she could.
Wight testified that Employer representatives had repeat-
edly told employees throughout the campaign that it
could not make any promises during the campaign. A
statement to this effect was also printed in some of the
Employer’s campaign documents.

1 The Employer has excepted to some of the hearing officer’s credi-
bility 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 find no basis for
reversing the findings.
2 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendations that Objections 2, 4, 5, 6, and 7 be overruled.
In addition, in the body of her report the hearing officer made “no
recommendation” on Objection 1 (alleging the unlawful suspension and
termination of employees Leonard Cohen and Eddie Chase), and the
challenge to the ballot of Leonard Cohen, finding that disposition of
these issues must await final disposition from the General Counsel’s
Office of Appeals in Case 13–CA–38378. We have been administra-
tively advised that the appeal has been denied and Case 13–CA–38378
has been dismissed. Accordingly, we overrule Objection 1 and sustain
the challenge to Cohen’s ballot. Texas Meat Packers, 130 NLRB 279
(1961).
The hearing officer found that, although Chief Operat-
ing Officer Kelly had repeatedly told employees that he
could not make any promises, there was no evidence
that, during her mid-January meeting with employees,
Swift ever advised employees that the Employer was
prohibited from promising to remedy their grievances
during the campaign.
Board law in this area is clear:
Absent a previous practice of doing so . . . the solicita-
tion of grievances during an organizational campaign
accompanied by a promise, expressed or implied, to
remedy such grievances violates the Act . . . [I]t is the
promise, expressed or implied, to remedy the griev-
ances that constitutes the essence of the violation . . .
[T]he solicitation of grievances in the midst of a union
campaign inherently constitutes an implied promise to
remedy the grievances. Furthermore, the fact [that] an
employer’s representative does not make a commit-
ment to specifically take corrective action does not ab-
rogate the anticipation of improved conditions expect-
able for the employees involved. [T]he inference that
an employer is going to remedy the same when it solic-
its grievances in a preelection setting is are [sic] rebut-
table one.

Maple Grove Health Care Center, 330 NLRB 775, (2000).
Further, “the Board has found unlawful interference with
employee rights by an employer’s solicitation of grievances
during an organizational campaign although the employer
merely stated it would look into or review the problem but
did not commit itself to specific corrective action; the Board
reasoned that employees would tend to anticipate improved
conditions of employment which might make union repre-
335 NLRB No. 36
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 408
sentation unnecessary.” Uarco Inc., 216 NLRB 1, 1–2
(1974).3
Our colleague contends that Swift did not promise to
remedy employees’ grievances.4 We disagree. As stated
above, Swift told employees that she would look into
their concerns (12-hour day, pay, and scheduling), which
they expressed to her after she asked them why they were
seeking union representation. This statement constitutes
a promise to look into employees’ specific grievances,
which Swift had solicited. The fact that Chief Operating
Officer Kelly stated, on other occasions, that he could
not make any promises (and the fact that such statements
may have been contained in memoranda) does not consti-
tute sufficient evidence to rebut the objectionable effect
of Swift’s solicitation of, and promise to remedy, em-
ployees’ grievances at the mid-January meeting.
Thus, we agree with the hearing officer that Swift’s
statements were objectionable.
The hearing officer also recommended, inter alia, over-
ruling the challenges to the ballots of six mates based on
her findings that the mates were not supervisors under
Section 2(11).5 Subsequent to the hearing officer’s rec-

3 “The Board has consistently held that an employer’s solicitation of
employee grievances and its promise to remedy those grievances during
an organizational campaign or preelection period is objectionable con-
duct which interferes with the free choice of employees in an election.”
Carbonneau Industries, 228 NLRB 597, 599 (1977), and cases cited
therein.
4 Our colleague asserts that the statement at issue “closely resem-
bles” the employer’s preelection statement in Noah’s New York Bagels,
324 NLRB 266, 267 (1997), urging employees to, inter alia, “[p]lease
vote to give us a second chance to show what we can do.” The Board
found that that statement, which the General Counsel had alleged was
an unlawful promise of benefits, was protected because “the Respon-
dent did not make any specific promise that any particular matter would
be improved.” Id. In this case, unlike the employer in Noah’s New
York Bagels, Swift, the Employer’s human resources director, asked
employees about their problems and concerns; employees responded by
naming specific items (i.e., pay, scheduling, and the potential change to
a 12-hour day). After hearing employees mention these concerns, Swift
stated that she would look into “these things.” Swift’s statement that
she would look into “these things” is different from an employer’s
“[g]eneralized expression requesting another chance or more time” to
improve an employer-employee relationship. Id., quoting in part Na-
tional Micronetics, 277 NLRB 993 (1985). Vague statements of that
sort may be protected because they “do not promise that anything in
particular will happen” and indicate, instead, a “general desire to make
things better.” National Micronetics, supra at 993. Here, Swift’s
statement that she would “look into” the specific items constituted an
implied promise to remedy those items, and was thus not a generalized
and innocuous request for “another chance” or “more time” to improve
the Employer’s relationship with its employees. Noah’s New York
Bagels, supra, at 267, quoting National Micronetics, supra at 993.
5 The Union argues in its answering brief that the Regional Director
should not have included the supervisory status of the mates as an issue
for hearing and the hearing officer should not have addressed that issue
because the Employer should be held to the terms of the stipulated
election agreement, which specifically included mates in the stipulated
ommendation, on May 29, 2001, the Supreme Court is-
sued its decision in NLRB v. Kentucky River Community
Care, 532 U.S. 706 (2001). In that case, the Court up-
held the Board’s rule that the burden of proving Section
2(11) supervisory status rests on the party asserting it.
However, the Court rejected the Board’s interpretation of
“independent judgment” in Section 2(11)’s test for su-
pervisory status, i.e., that registered nurses will not be
deemed to have used “independent judgment” when they
exercise ordinary professional or technical judgment in
directing less-skilled employees to deliver services in
accordance with employer-specified standards. Although
the Court found the Board’s interpretation of “independ-
ent judgment” in this respect to be inconsistent with the
Act, it recognized that it is within the Board’s discretion
to determine, within reason, what scope or degree of “in-
dependent judgment” meets the statutory threshold. In
discussing the tension in the Act between the Section
2(11) definition of supervisors and the Section 2(12)
definition of professionals, the Court also left open the
question of the interpretation of the Section 2(11) super-
visory function of “responsible direction,” noting the
possibility of “distinguishing employees who direct the
manner of others’ performance of discrete tasks from
employees who direct other employees.” Kentucky
River, 532 U.S. at 715-718.
The hearing officer recommended overruling the chal-
lenges to the ballots of the mates based on her findings
that, inter alia, “the mates’ direction of the unskilled la-
bor performed by the able-bodied seamen and the deck-
hands is routine and reveals no independent judgment,”
and “the assignments made by the mates at the daily
meetings were simply being passed down from the cap-
tain.”
In light of Kentucky River, the Board has decided to
remand this proceeding to the Regional Director to re-
open the record on the issue of whether the Employer’s
mates “assign” and “responsibly direct” and on the scope
and degree of “independent judgment” used in the exer-
cise of such authority.
Additionally, the Board requests the parties and the
Regional Director to consider two recent circuit court
decisions, Brusco Tug & Barge Co. v. NLRB, 247 F.3d
273 (D.C. Cir. 2001), and Empress Casino Joliet Corp. v.
NLRB, 204 F.3d 719 (7th Cir. 2000), denying enforce-
ment of the Board decisions.

unit description. We find it unnecessary to address the Union’s argu-
ment because the Union did not file exceptions to the hearing officer’s
report, and accordingly has not properly raised the issue before the
Board.
MAJESTIC STAR CASINO, LLC 409
ORDER
IT IS ORDERED that this matter is remanded to the
Regional Director for Region 13 for further appropriate
action and for a reopening of the record on the issues
specified above.

CHAIRMAN HURTGEN, dissenting in part.
Contrary to my colleagues, I would overrule Peti-
tioner’s Objection 3. The hearing officer found that Em-
ployer Manager Swift asked employees what issues
caused them to seek representation and that Swift, while
taking notes of the employee complaints, said that she
would look into things the best she could. The hearing
officer found that nothing in the record showed that
Swift personally told the employees that the Employer
could not promise to correct grievances during the cam-
paign. However, the hearing officer noted Swift’s testi-
mony that Chief Operating Officer Kelly repeatedly told
employees that he could not make promises. The hearing
officer likened the instant case to Raley’s, Inc., 236
NLRB 971 (1978), in which the Board found that the
respondent’s oft-repeated phrase of “no promises” was a
mere formality. The hearing officer found that Swift
solicited grievances and promised to correct them. The
finding was based on the fact that Swift took notes and
told employees that she would look into things the best
she could. The hearing officer found that this conduct
interfered with the election.
I disagree. As an initial matter, I note that Raley’s is
distinguishable. In that case, unlike here, the employer
had no policies or procedures for addressing employee
concerns; there were numerous statements made by mul-
tiple managers, specifically promising to address new
issues raised by the employees, such as increased wages
and supervisory abuse; the employer specifically an-
nounced a new open door policy, thereby expressly
granting a new procedure; and, the promises were made
in the context of other unfair labor practices, including
the unlawful granting of the exact benefits and changes
promised by the employer in soliciting grievances.
These elements of Raley’s are not present here. This
case more closely resembles Noah’s New York Bagels,
324 NLRB 266 (1997), in that the Employer did not
make any specific promise that any particular matter
would be improved. My colleagues find that Swift’s
statement that she would look into “these things” (the
employees’ concerns) was an implied promise to remedy
grievances. They say that this was unlike the Noah’s
statement which urged employees to give the employer a
second chance to show what it could do. In my view,
neither the statement in Noah’s nor the one here consti-
tuted such a promise. Indeed, the statement in Noah’s
(that the employer wanted a second chance) was argua-
bly a statement that changes would be forthcoming. By
contrast, the statement here was simply a pronouncement
that the Employer would consider the employee griev-
ances.
Thus, assuming arguendo that Swift solicited the
grievances, I find that she did not promise to remedy
them. To the extent that a solicitation gives rise to an
inference of a promise, that inference is rebutted by the
facts herein. Swift simply stated that she would look into
the grievances, as would any prudent employer. The
implication was clear: no promises were being made.
Further, Kelly made it expressly clear that no promises
were being made. Accordingly, I would overrule the
objection.