SANDS CASINO RESORT BETHLEHEM

National Labor Relations Board - Board Decisions

May 30, 2012

358 N.L.R.B. 405 (N.L.R.B. 2012)

405
SANDS CASINO RESORT BETHLEHEM

358 NLRB No. 49
Sands Bethworks Gaming, LLC d/b/a Sands Casino
Resort Bethlehem and Law Enforcement Em-
ployees Benevolent Association. Case 04–CA–
076289
May 30, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND GRIFFIN
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on March 9,
2012,1 the Acting General Counsel issued the complaint
on March 19, 2012, 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 04–RC–021833. (Official notice is
taken of the “record” in the representation proceeding as
defined in the Board’s Rules and Regulations, Secs.
102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343
(1982).) The Respondent filed an answer admitting in
part and denying in part the allegations in the complaint,
and asserting affirmative defenses.
On April 5, 2012, the Acting General Counsel filed a
Motion for Summary Judgment. On April 20, 2012, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification on the basis that the
Board was not properly constituted as required by Sec-
tion 3(b) of the Act and thus did not have the authority to
consider the Respondent’s exceptions to the Hearing
Officer’s Report on objections to the election, or to over-
rule such objections in the underlying representation case
proceeding.2 In addition, the Respondent makes argu-
ments that were raised and rejected in the underlying
representation proceeding.
Consequently, all representation issues raised by the
Respondent were or could have been litigated in the prior

1 The complaint erroneously states that the Union filed a charge on
March 12, 2012. The charge, which is attached as an exhibit to the
motion, was filed on March 9, 2012.
2 For the reasons set forth in Center for Social Change, Inc., 358
NLRB 161 (2012), we reject this argument.
representation proceeding. The Respondent does not
offer to adduce at a hearing any newly discovered and
previously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
In its opposition to the Acting General Counsel’s mo-
tion, the Respondent contends, for the first time, that a
hearing should be held to determine whether the Union
has impermissibly delegated or transferred its Section
9(a) responsibilities to an allegedly separate entity, “Lo-
cal 777.” In support of its assertion, the Respondent
states that it discovered a website in early April 2012
which demonstrates that “Local 777,” rather than the
Union, represents the Respondent’s unit employees.
However, the complaint alleges, and the Respondent
admits, that on March 2, 2012, the Union requested bar-
gaining with the Respondent. The complaint further al-
leges, and the Respondent admits, that by letter dated
March 6, 2012, the Union was notified that the Respond-
ent refused to recognize and bargain with it. There is no
indication that any entity other than the certified Union
has requested, or will request, recognition and bargaining
from the Respondent. Accordingly, the Respondent has
not established that a genuine issue of material fact exists
warranting a hearing with respect to the allegations in
this proceeding.
Accordingly, we grant the Motion for Summary Judg-
ment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has operated a
casino and hotel at 77 Sands Boulevard, Bethlehem,
Pennsylvania (the Resort). During the 12-month period
preceding the issuance of the complaint, the Respondent
received gross revenues in excess of $500,000 and pur-
chased and received at the Resort goods valued in excess
of $5000 directly from points outside the Commonwealth
of Pennsylvania.
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, Law Enforcement Em-

3 Therefore, the Respondent’s motion to dismiss the complaint in its
entirety is denied.
406
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ployees Benevolent Association, is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held by secret ballot on July 22,
2011, the Union was certified on February 10, 2012, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:

All full-time and regular part-time security guards em-
ployed by Respondent at its Resort located at 77 Sands
Boulevard, excluding the locksmith, all other employ-
ees and supervisors as defined in the Act.

The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
At all material times, Holly Eicher has been vice pres-
ident-general counsel of the Respondent, and has been an
agent of the Respondent within the meaning of Section
2(13) of the Act.
By letter dated March 2, 2012, to Holly Eicher, the
Union requested the Respondent to recognize and bar-
gain with it as the exclusive collective-bargaining repre-
sentative of the unit concerning the wages, hours, and
other terms and conditions of employment. By letter
dated March 6, 2012, the Respondent, by Holly Eicher,
notified the Union that it refused to recognize and bar-
gain with it as the exclusive collective-bargaining repre-
sentative of the employees in the unit. We find that this
failure and refusal constitutes an unlawful failure and
refusal to recognize and bargain with the Union in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since March 6, 2012, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the employees in the
appropriate unit, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 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 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); 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, Sands Bethworks Gaming, LLC d/b/a Sands
Casino Resort Bethlehem, Bethlehem, Pennsylvania, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Law Enforcement Employees Benevolent Association 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, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:

All full-time and regular part-time security guards em-
ployed by Respondent at its Resort located at 77 Sands
Boulevard, excluding the locksmith, all other employ-
ees and supervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Bethlehem, Pennsylvania, copies of the
attached notice marked “Appendix.”4 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 4, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent

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 States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
407
SANDS CASINO RESORT BETHLEHEM

customarily communicates with its employees by such
means.5 Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, 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 its 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 March 6, 2012.
(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.
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 has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

5 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB 11 (2010), Member Hayes would not require electronic
distribution of the 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 fail and refuse to recognize and bargain
with Law Enforcement Employees Benevolent Associa-
tion 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
listed above.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing bargaining unit:

All full-time and regular part-time security guards em-
ployed by us at our Resort located at 77 Sands Boule-
vard, excluding the locksmith, all other employees and
supervisors as defined in the Act.

SANDS BETHWORKS GAMING, LLC D/B/A
SANDS CASINO RESORT BETHLEHEM