San Manuel Indian Bingo and Casino

National Labor Relations Board - Board Decisions

Sep 30, 2005

345 N.L.R.B. 1047 (N.L.R.B. 2005)

SAN MANUEL INDIAN BINGO & CASINO
345 NLRB No. 79
1047
San Manuel Indian Bingo and Casino and Hotel Em-
ployees and Restaurant Employees International
Union, CLC1 and Communications Workers of
America, AFL–CIO, CFC, Party in Interest and
State of Connecticut, Intervenor. Cases 31–CA–
23673 and 31–CA–23803
September 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
Upon charges filed by Hotel Employees and Restau-
rant Employees International Union (the Union), the
General Counsel of the National Labor Relations Board
issued an order consolidating cases and notice of hearing
on September 30, 1999. The consolidated complaint
alleges that the Respondent engaged in certain unfair
labor practices within the meaning of Section 8(a)(1) and
(2) of the National Labor Relations Act. The Respondent
filed an answer to the consolidated complaint.
On January 18, 2000, the Respondent filed with a
Board a motion to dismiss the consolidated complaint for
lack of jurisdiction. On May 28, 2004, the Board denied
the Respondent’s motion to dismiss, and affirmatively
asserted jurisdiction over the Respondent. 341 NLRB
1055 (2004). On March 9, 2005, the Respondent filed an
amended answer to the consolidated complaint.
On March 22, 2005, the General Counsel filed a mo-
tion to transfer the proceeding to the Board and for sum-
mary judgment. On March 25, 2005, the Board issued an
Order transferring the proceeding to the Board and notice
to show cause why the motion for summary judgment
should not be granted. Thereafter, the General Counsel
and the Respondent filed briefs in support of their re-
spective positions. On May 5, 2005, the General Coun-
sel filed a motion to strike and reply to Respondent’s
opposition to the General Counsel’s motion for summary
judgment. The Respondent filed a response to the mo-
tion to strike. With the Board’s permission, the State of
Connecticut filed an amicus brief in support of the Gen-
eral Counsel’s motion for summary judgment. The Re-
spondent filed a response to the amicus brief.
I. THE ISSUE
In its amended answer, the Respondent has admitted
all factually material allegations of the consolidated
complaint, while maintaining its affirmative defense that
the Board lacks jurisdiction. Accordingly, the sole issue

1 We have amended the caption to reflect the disaffiliation of the Ho-
tel Employees & Restaurant Employees International Union, AFL–
CIO, effective September 14, 2005.
presented here is whether the Board lacks jurisdiction
over the Respondent.
A. The Contentions of the Parties
In its affirmative defenses, the Respondent contends
that the Board cannot exercise jurisdiction over the Re-
spondent because it is owned and operated by a federally
recognized Indian tribe within the confines of an Indian
reservation pursuant to the terms of the Indian Gaming
Regulatory Act; it is not an employer within the meaning
of the National Labor Relations Act (NLRA); and appli-
cation of the NLRA to the tribe is preempted by the In-
dian Gaming Regulatory Act.
The General Counsel asserts that this issue was previ-
ously litigated and decided in this case. In this regard,
the General Counsel points to the Board’s Order denying
the Respondent’s motion to dismiss the complaint for
lack of jurisdiction, in which the Board articulated a new
standard for asserting jurisdiction over Indian owned and
operated enterprises and under which it asserted jurisdic-
tion over the Respondent.
The General Counsel also maintains that to the extent
that the Respondent has offered a new argument to sup-
port its position that the Board lacks jurisdiction, that
argument is untimely, improper, and should be struck.2
In the alternative, the General Counsel argues that the
new argument should be rejected as an impermissible
attempt to relitigate the jurisdiction issue. Finally, in
view of the Respondent’s admission of all factually ma-
terial allegations of the consolidated complaint, the Gen-
eral Counsel requests the Board to find that the Respon-
dent has committed the violations of Section 8(a)(2) and
(1) of the Act set out in the consolidated complaint.
B. Discussion
We agree with the General Counsel that it would be
improper to relitigate the issue of jurisdiction at this
juncture.3 The Board has already decided that issue in
this case, in the context of the Respondent’s motion to
dismiss the complaint, and the Respondent has presented
no newly discovered and previously unavailable evi-
dence and/or special or changed circumstances that
would necessitate reexamination of the Board’s decision

2 The Respondent argues that the Board lacks jurisdiction for the
reasons stated in its motion to dismiss and because its tribal relations
ordinance, which is a component of its compact with the State of Cali-
fornia, preempts the NLRA pursuant to the Compact Clause of the
Constitution.
3 Member Schaumber notes that he dissented from the Board’s de-
nial of the Respondent’s motion to dismiss. He would find that the
Board does not have jurisdiction here. Member Schaumber agrees with
his colleagues, however, that the Respondent may not relitigate the
jurisdiction issue now and therefore joins in granting the General Coun-
sel’s summary judgment motion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1048
to assert jurisdiction. The Respondent has not presented
any special evidence that would require us to reach a
different result. Nor has the Respondent provided any
reason why it could not have presented its argument re-
garding the preemption of the Act by its tribal labor rela-
tions ordinance under the Compact Clause of the Consti-
tution to us in support of its motion to dismiss. See
Wayne County Neighborhood Legal Services, 249 NLRB
1260, 1263 (1980). Accordingly, we find that the Re-
spondent’s affirmative defenses are without merit.4
Because the Respondent has admitted the factually ma-
terial allegations in the consolidated complaint, those
allegations must be considered to be true.
II. THE UNFAIR LABOR PRACTICE CASE
The Board has considered the briefs and the entire re-
cord in this proceeding and makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a California
corporation, has been engaged in the operation and main-
tenance of a gaming establishment, including a gaming
casino, restaurants, eating facilities, retail shops, and
other retail stores, in Highland, California. During the
calendar year ending December 31, 1998, the Respon-
dent, in conducting its gaming establishment operations
described above, derived gross revenues in excess of
$500,000. During the same period of time, the Respon-
dent, in conducting its operations described above, pur-
chased and received at its Highland, California facilities
goods and materials valued in excess of $50,000, which
goods and materials originated from points outside of
California. We find that at all material times the Re-
spondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
The consolidated complaint alleges, the Respondent
does not deny, and we find that at all material times the
Union has been a labor organization within the meaning
of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICE PROCEEDINGS
The consolidated complaint alleges, the Respondent in
effect admits, and we find that the Respondent violated
Section 8(a)(2) and (1) of the Act by rendering aid, assis-
tance, and support to the Communications Workers of
America (CWA). Specifically, the consolidated com-
plaint alleges, the Respondent in effect admits, and we
find that the Respondent: (a) permitted CWA, through
its agents, to place a trailer in a parking lot on Respon-

4 In light of our conclusion, we find it unnecessary to address the
General Counsel’s motion to strike.
dent’s property and to use said trailer for the purpose of
organizing Respondent’s employees; (b) permitted
CWA, through its agents, to place CWA’s banner on said
trailer for the purpose of organizing Respondent’s em-
ployees; (c) permitted CWA, through its agents, to place
a bulletin board and CWA leaflets and other writings
near the said trailer; (d) permitted CWA, through its
agents, to talk to employees of the Respondent inside the
Respondent’s facility during said employees’ work time
and nonwork time for the purpose of organizing the Re-
spondent’s employees; and (e) denied, through Mazzie
and other security guards, agents, and supervisors, the
Union access to its facility and employees on an equal or
equivalent basis with the access granted to CWA.
CONCLUSION OF LAW
By rendering aid, assistance, and support to CWA and
denying the Union access to its facility and employees on
an equal or equivalent basis with the access granted to
CWA, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(2) and (1) and Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, San Manuel Indian Bingo and Casino,
Highland, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Allowing Communications Workers of America,
AFL–CIO, CLC, to place a trailer, a banner, and a bulle-
tin board on its property, and to leaflet and talk to em-
ployees at its facility for the purpose of organizing Re-
spondent’s employees, and denying Hotel Employees
and Restaurant Employees International Union or any
other union access to its property, facility, and employees
on an equal and equivalent basis at a time when a ques-
tion concerning initial representation could be raised.
(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, provide representatives of Hotel Em-
ployees and Restaurant Employees International Union
or any other union the same rights of access to its prop-
erty, facility, and employees on an equal and equivalent
basis at a time when a question concerning initial repre-
sentation could be raised.
(b) Within 14 days after service by the Region, post at
its facility in Highland, California, copies of the attached
SAN MANUEL INDIAN BINGO & CASINO 1049
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director of Region 31,
after being signed by the Respondent’s authorized repre-
sentatives, 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 November 1998.
(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 com-
ply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

5 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 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 interfere with your free exercise of these
rights.
WE WILL NOT disparately deny representatives of the
Hotel and Restaurant Employees International Union
(HERE) or any other union access to our property to
communicate with or solicit support from you at a time
when a question concerning initial representation could
be raised.
WE WILL NOT provide unlawful aid, assistance, or sup-
port to the Communications Workers of America (CWA)
and its representatives.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
WE WILL provide representatives of HERE or any
other union the same rights of access to our property and
our employees that we provided to CWA and its repre-
sentatives, at such time as a question concerning initial
representation could be raised.
SAN MANUEL INDIAN BINGO AND CASINO