VIEJAS BAND OF KUMEYAAY INDIANS D/B/A VIEJAS CASINO & RESORT

National Labor Relations Board - Board Decisions

Jun 21, 2018

366 NLRB No. 113 (N.L.R.B. 2018)

366 NLRB No. 113
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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.
Viejas Band of Kumeyaay Indians d/b/a Viejas Casi-
no & Resort and United Food and Commercial
Workers International Union, Local 135, AFL–
CIO. Case 21–CA–166290
June 21, 2018
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On October 11, 2016, Administrative Law Judge Ma-
ra-Louise Anzalone issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party Union each
filed answering briefs, and the Respondent filed a reply
brief. In addition, the Charging Party Union filed excep-
tions and a supporting brief, and the Respondent filed an
answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions,1

1 We affirm the judge’s conclusion, for the reasons she states, that
the Respondent violated Sec. 8(a)(5) and (1) of the Act by unilaterally
changing, without giving the Union notice or an opportunity to bargain,
its past practice of paying unit and nonunit employees the same annual
year-end bonus. We additionally rely on the Board’s decision in Cen-
tral Maine Morning Sentinel, 295 NLRB 376 (1989), where the Board
similarly found that the employer violated Sec. 8(a)(5) and (1) when,
contrary to past practice, it unilaterally excluded unit employees from
an across-the-board annual wage increase given to nonunit employees.
We do not rely on the judge’s citation to Santa Cruz Skilled Nursing
Center, Inc., 354 NLRB No. 25 (2009) (not reported in Board volume),
a case that was decided by a two-member Board. See New Process
Steel, L.P. v. NLRB, 560 U.S. 674 (2010).
The Respondent makes two arguments in support of its contention
that the Union clearly and unmistakably waived bargaining over chang-
es to annual year-end bonuses. First, the Respondent asserts that it
gave the Union adequate notice of the planned change in January 2015,
when it explained during bargaining that, if certain profit targets were
met, it intended to use the year-end bonus to correct the inequity in pay
across its employees that would be caused by the Respondent’s agree-
ing to a larger wage increase for unit employees. In the January 2015
statements that the Respondent relies upon, however, the Respondent
offered no specifics on how it would use bonuses to correct pay inequi-
ty, and, further, the change in bonuses was purely speculative; the
Respondent expressly made any potential change contingent on the
attainment of undefined profit targets. We find that the Respondent’s
statements were too indefinite and unspecific to provide the Union with
a reasonable opportunity to request bargaining. See, e.g., Pan Ameri-
can Grain Co., 343 NLRB 318, 318, 338 (2004) (general statements
about potential workforce reductions made during bargaining months
earlier insufficient notice of particular layoffs), enf. denied on other
grounds 432 F.3d 69 (1st Cir. 2005).
and to adopt the judge’s recommended Order as modified
and set forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Viejas Band of Kumeyaay Indians d/b/a

Second, the Respondent argues that the following zipper clause in
art. 29, sec. 3 of the parties’ collective-bargaining agreement privileges
its making unilateral changes to annual year-end bonuses:
The Tribe and the Union, for the term of this Agreement, each
voluntarily and unqualifiably waive the right to bargain, and each
agrees that the other shall not be obligated to bargain collectively,
with respect to any subject, matter or practice involving the terms
and conditions of employment of the bargaining unit other than as
specifically required by an express provision of this agreement.
It is well-established, however, that generally worded zipper clauses
such as this one do not amount to clear and unmistakable waiver absent
special facts not present here, such as the parties having actively bar-
gained over the zipper clause or discussed the clause’s effect on past
practices. See, e.g., Irving Materials, 364 NLRB No. 97, slip op. at 3
(2016).
We observe that art. 4, sec. 2 of the parties’ collective-bargaining
agreement states that “all past practices existing prior to the effective
date of this Agreement are terminated as of the effective date of this
Agreement, unless such past practice is memorialized in a written Trib-
al policy, ordinance, regulation or other writing.” No party cited this
provision, much less litigated whether it would operate to terminate the
past practice of paying equal annual year-end bonuses to unit and non-
unit employees. Absent any arguments by the parties, we decline to
consider sua sponte what effect, if any, art. 4, sec. 2 of the agreement
might have on this decision. Citing to the principle that the Board may
"resolve issues based on a legal standard not expressly raised by the
parties," our dissenting colleague would consider this provision of the
collective-bargaining agreement and find it controlling. We respectful-
ly disagree, however, with his suggestion that this is a matter of deter-
mining what legal analysis is applicable. Further, we note that, because
no party litigated this issue, the record is insufficient to adequately
interpret how art. 4, sec. 2 of the parties’ agreement would apply here,
if at all. See generally Ohio Power Co., 317 NLRB 135, 136 (1995)
(examining all the circumstances to conclude that contractual language
stating, “The parties agree . . . that any prior written or oral agreements
or practices are superseded by the terms of this Agreement” and that
“no such written or oral understandings or practices will be recognized
in the future unless committed to writing and signed by the parties” did
not authorize employer to discontinue practice of allowing union work-
ers’ compensation officers to take unpaid time off to attend workers’
compensation hearings.). For example, we cannot be certain that the
past practice has not been “memorialized in a written Tribal policy,
ordinance, regulation or other writing” within the meaning of the ex-
ception in art. 4, sec. 2.
Having found that the Respondent’s failure to pay unit employees
the same year-end bonus as nonunit employees violated Sec. 8(a)(5)
and (1) and thereby warrants a remedy including rescission and back-
pay, we find it unnecessary to pass on the Union’s exceptions to the
judge’s dismissal of the allegation that the Respondent’s conduct also
violated Sec. 8(a)(3), because adding an 8(a)(3) finding would not
materially affect the remedy.
2 In adopting the judge’s recommended remedy, we do not rely on
her erroneous description of the Respondent’s change to its bonus past
practice as “discriminatory.” We shall modify the judge’s recommend-
ed Order and substitute a new notice to conform to the violation found
and the Board’s standard remedial language.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Viejas Casino & Resort, Alpine, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally departing from its established practice
of paying unit and nonunit employees the same annual
year-end bonus, without first affording the Union notice
and an opportunity to bargain.
(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) Before implementing any changes to unit employ-
ees’ wages, hours, or other terms and conditions of em-
ployment, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
Individuals employed within the following classifica-
tions: Asian Cook, Asian Host/Cashier, Barback, Baris-
ta, Bartender I, Bartender II, Bartender III, Bingo
Snack Bar Attendant, Busser, Busser-Buffet, Busser-
Restaurant, Casino Porter, Casino Service Attendant,
Cook I, Cook I-Pastry, Cook II, Cook II-Fine Dining,
Cook II-Pastry, Cook III, Cook III-Fine Dining, Expe-
diter, F&B Attendant, Host-Fine Dining, Host/Cashier
II, Host/Cashier Non-Tipped, Host/Cashiers Tipped,
Kitchen Utility I, Kitchen Utility/Heavy Cleaner, Maint
Utly Wrkr, Server Bingo, Server Buffet, Server Enter-
tainment, Server Fine Dining, Server Restaurant, Serv-
er Table Games Cardrm, and Spec Functions Person-
nel.
(b) Rescind the reduction to unit employees’ annual
year-end bonus unilaterally implemented in December
2015.
(c) Make unit employees whole for any loss of earn-
ings suffered as a result of the unlawful reduction to the
annual year-end bonus in the manner set forth in the
remedy section of the judge’s decision.
(d) Compensate unit employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 21,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year for each employee.
(e) Within 14 days after service by the Region, post at
its Alpine, California facility copies of the attached no-
tice marked “Appendix.”3 Copies of the notice, on forms

3 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-
provided by the Regional Director for Region 21, after
being signed by the Respondent’s authorized representa-
tive, 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 customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facilities involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
at any time since December 8, 2015.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 21 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. June 21, 2018
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER EMANUEL, dissenting.
In this case, the General Counsel alleges, and the ma-
jority finds, that the Respondent unilaterally changed an
established past practice of giving both unit and nonunit
employees the same year-end bonuses without providing
the Union notice and an opportunity to bargain. The
Respondent defends against this allegation by arguing
that it adhered to its established past practice of provid-
ing the same overall compensation to unit and nonunit
employees, so unit employees received a smaller year-
end bonus to offset a negotiated increase in their hourly
wages. Both of these positions, however, are foreclosed
by the plain and unambiguous language of article 4 sec-
tion 2 of the parties’ collective-bargaining agreement,

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
VIEJAS BAND OF KUMEYAAY INDIANS D/B/A VIEJAS CASINO & RESORT 3
effective March 11, 2015, stating that “all past practices
existing prior to the effective date of this Agreement are
terminated as of the effective date of this Agreement,
unless such past practice is memorialized in a written
Tribal policy, ordinance, regulation or other writing.”
This contract article, in my view, is dispositive of the
General Counsel’s argument, the Respondent’s defense,
and the majority’s rationale for finding the violation.1

1 The majority correctly notes that no party cited art. 4 sec. 2 or ar-
gued that it terminated the parties’ past practice regarding year-end
bonuses. However, the Board has held that it has the authority to re-
solve issues based on a legal standard not expressly raised by the par-
ties. The Boeing Co., 365 NLRB No. 154, slip op. at 21 (2017); see also
Kamen v. Kemper Financial Services, 500 U.S. 90, 99 (1991) (“[T]he
court is not limited to the particular legal theories advanced by the
parties, but rather retains the independent power to identify and apply
the proper construction of governing law.”). The majority also asserts
that, because it was not litigated, the record is insufficient to interpret
art. 4, sec. 2 and, therefore, the Board should ignore it. I disagree.
First, I believe in this case the Board should hold the parties to the clear
and unambiguous bargain they agreed to as part of the collective-
bargaining process and which is in the record before us. Second, be-
cause art. 4, sec. 2 is clear and unambiguous, no interpretation is neces-
sary and no additional evidence would even be admissible regarding its
application here. See Quality Building Contractors, 342 NLRB 429.
430-131 (2004) (construing a collective-bargaining agreement based on
the “four corners” of the document and recognizing that parol evidence
is inadmissible to vary its unambiguous terms); see also NLRB v. Elec-
trical Workers, Local 11, 772 F.2d 571, 575 (9th Cir. 1985) (“We agree
with the NLRB that the language in the collective bargaining agreement
is unambiguous. Where contractual provisions are unambiguous, the
NLRB need not consider extrinsic evidence. Parol evidence is there-
fore not only unnecessary but irrelevant.”).
The majority states that they cannot be certain that the past practice
regarding year-end bonuses has not been “memorialized in a written
Tribal policy, ordinance, regulation or other writing” within the mean-
ing of the exception in art. 4, sec. 2. However, under the record, there
is no basis to speculate that the Respondent may have memorialized
any past practice of awarding bonuses. As the judge found, the topic of
bonuses came up twice in the parties’ negotiations and the Respondent
expressed no intention of awarding the unit employees a year-end bo-
nus. If the Respondent had no intention of awarding unit employees a
year-end bonus, it would not have memorialized such a requirement in
writing. Moreover, irrespective of art. 4, sec. 2, any written evidence of
the Respondent’s obligation to award year-end bonuses would have
been relevant to deciding the scope of the parties’ purported past prac-
tice, and therefore would have been especially probative to deciding
this case. Thus, any written memorialization would have been part of
the record if it existed.
In addition, in support of their position, the majority cites Ohio
Power Co., 317 NLRB 135, 136 (1995), a case finding that a generally-
worded management-rights clause and a zipper clause did not create a
“clear and unmistakable” waiver of the union’s statutory right to bar-
gain over the termination of a past practice. In that case, the parties’
zipper clause stated that “any prior written or oral agreements or prac-
tices are superseded by the terms of this [a]greement. The parties fur-
ther agree that no such written or oral understandings or practices will
be recognized in the future unless committed to writing and signed by
the parties.” 317 NLRB at 135. The agreement in Ohio Power Co.
contained no terms pertaining to the past practice at issue and so there
was nothing in the agreement to change, or supersede, that practice. Id.
at 136. The Board found that the union had not waived its right to
Consequently, I would find that the Respondent violat-
ed Section 8(a)(5) of the Act by unilaterally granting unit
employees a $500 bonus without providing the Union
notice and an opportunity to bargain because the bonus
was not a part of their collective-bargaining agreement.
The proper remedy for this violation is to rescind, upon
the Union’s request, the 2015 year-end bonuses paid to
unit employees and to order the Respondent to bargain
with the Union before implementing any changes to unit
employees’ wages, hours, or other terms and conditions
of employment. In my view, the majority’s decision to
award unit employees a make-whole remedy, based on a
past practice that has been terminated, affords those em-
ployees with an unwarranted $500 windfall. I therefore
respectfully dissent.
Dated, Washington, D.C. June 21, 2018
______________________________________
William J. Emanuel, Member
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 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

bargain over the past practice because the agreement did not address
it. Id. Thus, the employer in that case violated Sec. 8(a)(5) and (1) by
unilaterally ending it without a “clear and unmistakable” waiver of the
union’s statutory right to bargain over the practice. Id. at 135. Moreo-
ver, the Board in its reasoning for finding the violation in Ohio Power
Co. did not mention the portion of the zipper clause stating that no
“understandings or practices will be recognized in the future,” presum-
ably because the past practice at issue had existed prior to the execution
of the agreement and therefore was not one that would have been rec-
ognized “in the future.” At the very least, the language of the zipper
clause in Ohio Power Co. was ambiguous. Here, on the other hand, the
parties’ agreement explicitly provides that “all past practices existing
prior to the effective date of this Agreement are terminated.” Accord-
ingly, under art. 4, sec. 2, although the Union did not waive its statutory
right to bargain over changes to employee bonuses, the parties clearly
and unambiguously terminated any preexisting past practice regarding
employee bonuses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT unilaterally depart from our established
practice of paying unit and nonunit employees the same
annual year-end bonus, without first affording the Union
notice and an opportunity to bargain.
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, before implementing any changes to unit
employees’ wages, hours, or other terms and conditions
of employment, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
Individuals employed within the following classifica-
tions: Asian Cook, Asian Host/Cashier, Barback, Baris-
ta, Bartender I, Bartender II, Bartender III, Bingo
Snack Bar Attendant, Busser, Busser-Buffet, Busser-
Restaurant, Casino Porter, Casino Service Attendant,
Cook I, 10 Cook I-Pastry, Cook II, Cook II-Fine Din-
ing, Cook II-Pastry, Cook III, Cook III-Fine Dining,
Expediter, F&B Attendant, Host-Fine Dining,
Host/Cashier II, Host/Cashier Non-Tipped,
Host/Cashiers Tipped, Kitchen Utility I, Kitchen Utili-
ty/Heavy Cleaner, Maint Utly Wrkr, Server Bingo,
Server Buffet, Server Entertainment, Server Fine 15
Dining, Server Restaurant, Server Table Games
Cardrm, and Spec Functions Personnel.
WE WILL rescind the reduction to unit employees’ an-
nual year-end bonus unilaterally implemented in Decem-
ber 2015.
WE WILL make unit employees whole, with interest,
for any loss of earnings suffered as a result of the unlaw-
ful reduction to their annual year-end bonus.
WE WILL compensate unit employees for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 21, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar year for each employee.
VIEJAS BAND OF KUMEYAAY INDIANS
D/B/A VIEJAS CASINO & RESORT
The Board’s decision can be found at
www.nlrb.gov/case/21-CA-166290 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Lisa E. McNeill, Esq., for the General Counsel.
George S. Howard, Esq. (Jones Day), for the Respondent.
Michael D. Four and Daniel E. Curry, Esqs. (Schwartz,
Steinsapir, Dohrmann & Sommers LLP), for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARA-LOUISE ANZALONE, Administrative Law Judge. I
heard this case on June 13–14, 2016, in San Diego, California.
Based on charges and amended charges filed by the United
Food and Commercial Workers International Union, Local 135,
AFL–CIO (Local 135, the Union or Charging Party), the Re-
gional Director for Region 21 issued a complaint on April 26,
2016 (the complaint). The General Counsel alleges that Re-
spondent Viejas Band of Kumeyaay Indians d/b/a Viejas Casi-
no & Resort (Viejas, the Tribe or Respondent) violated Section
8(a)(5), (3), and (1) of the National Labor Relations Act (the
Act), by paying an annual bonus to its represented work force
of one-half the amount it paid its nonrepresented employees.
Respondent, a federally recognized Indian tribe, argues that it is
not subject to the Act and, alternately, that it did not commit the
unfair labor practices alleged.
At trial, all parties were afforded the right to call, examine
and cross-examine witnesses, to present any relevant documen-
tary evidence, to argue their respective legal positions orally,
and to file posthearing briefs.1 Posthearing briefs were filed
timely by the parties and have been carefully considered.2
JURISDICTION
Respondent operates the Viejas Casino & Resort (the casino
operation or Respondent’s operation) on its reservation located
approximately 35 miles from San Diego, California. The Tribe
has approximately 359 members, of whom 266 are adults. As
the parties have stipulated, there is no treaty between Respond-
ent and the United States. The Tribe is governed by a General

1 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.” for General Counsel’s Exhibit; “R. Exh.” for Re-
spondent’s Exhibit; “U Exh.” for Local 135’s Exhibit; and “Jt. Exh.”
for Joint Exhibit.
2 On July 20, 2016, Respondent filed an unopposed motion to cor-
rect the record, which is hereby granted. The record is therefore
amended to reflect the proposed changes set forth in that motion.
VIEJAS BAND OF KUMEYAAY INDIANS D/B/A VIEJAS CASINO & RESORT 5
Council consisting of the voting Tribal membership, as well as
a seven-member, elected Tribal Council. Although the casino’s
general manager reports directly to the Tribal Council, there is
no evidence of the council taking a role in establishing terms
and conditions of employees in the Casino operation. That
said, the Tribe has adopted a Tribal Labor Relations Ordinance,
which purports to regulate labor relations for individuals em-
ployed by the casino operation. (Jt. Exh. 1; R. Exh. 1; Tr. 392,
399, 421–422, 430–431.)
The casino operation, which is located entirely within the
boundaries of Tribe’s reservation, offers various forms of gam-
ing, live entertainment and dining, all of which are operated by
the Tribe. Respondent’s operation also includes a 237-room
hotel, featuring meeting spaces and ball rooms. In addition, the
Tribe owns and operates an outlet shopping center. During the
year ending March 31, 2016 (relevant time period), Respond-
ent’s casino operation had gross revenues in excess of
$500,000, and Respondent, in its operation, purchased goods
and services in excess of $50,000 directly from points outside
the State of California. During the relevant time period, Re-
spondent employed approximately: 118 employees at the hotel
(3 of whom were Tribal members); 273 individuals at the shop-
ping center (8 of whom were Tribal members) and 1100 em-
ployees at the casino itself (11 of whom were Tribal members).
Respondent’s operation is open to the general public, and
Respondent advertises it via traditional and online media ven-
ues, including its Internet site. A comparison of the number of
Tribal members to the casino operation’s average number of
daily customers establishes that the vast majority (at least 90
percent) of Respondent’s patrons are non-Tribal members.
Revenue from the casino operation is responsible for the vast
majority (more than 99 percent) of the Tribe’s funding and is
critical to maintaining its internal governmental operations,
including the provision of education, fire services, security,
public works, healthcare and housing for Tribal members. (Jt.
Exh. 1; R. Exh. 18; Tr. 305, 392, 400.)
From approximately 1999 until 2014, a unit of mainly food
and beverage employees working in the casino operation was
represented by the Communications Workers of America
(CWA). That year, a petition to decertify was filed, and Local
135 intervened in the subsequent election proceeding. (Tr. 52)
On August 27, 2014, Respondent and Local 135 signed a Stipu-
lated Election Agreement (Stipulation) approved by Region 21
of the Board. By that Stipulation, the Tribe agreed that the
representation proceeding would be “governed by the Board’s
Rules and Regulations,” and further agreed that it was “en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the National Labor Relations Act.” (GC Exh. 1(j).) On Sep-
tember 30, 2014, Local 135 was certified by the Board as the
exclusive bargaining representative of approximately 490 food
and beverage employees working at the Casino (the unit).3

3 The unit currently consists of individuals employed within the fol-
lowing classifications: Asian Cook, Asian Host/Cashier, Barback,
Barista, Bartender I, Bartender II, Bartender III, Bingo Snack Bar At-
tendant, Busser, Busser-Buffet, Busser-Restaurant, Casino Porter, Ca-
sino Service Attendant, Cook I, Cook I-Pastry, Cook II, Cook II-Fine
Dining, Cook II-Pastry, Cook III, Cook III-Fine Dining, Expediter,
In evaluating whether Respondent’s casino operation is sub-
ject to the Act, I am bound by the Board’s holding in San Ma-
nuel Indian Bingo & Casino, 341 NLRB 1055 (2004), enfd.
475 F.3d 1306 (D.C. Cir. 2007). In that case, the Board set
forth its standard for determining when it would assert jurisdic-
tion over businesses owned and operated by Indian tribes on
Tribal lands. The Board found that the Act is a statute of “gen-
eral application” that applies to Indian tribes, citing Federal
Power Commission v. Tuscarora Indian Nation, 362 U.S. 99,
116 (1960). Accordingly, the Board found it proper to assert
jurisdiction, unless (1) it is shown that the Act “touche[d] ex-
clusive rights of self-government in purely intramural matters”;
(2) application of the Act would abrogate treaty rights; or (3)
there was “proof” in the statutory language or legislative histo-
ry that Congress did not intend the Act to apply to Indian tribes.
341 NLRB at 1059, citing Donovan v. Coeur d’Alene Tribal
Farm, 751 F.2d 1113, 1115 (9th Cir. 1985). The Board also
held that it would make a further inquiry to determine whether
policy considerations militate in favor of or against the asser-
tion of the Board’s discretionary jurisdiction. Id. at 1062.
Applying the principles recognized in San Manuel, the Board
has repeatedly asserted jurisdiction over Tribal-owned and
operated casinos. See, e.g., Casino Pauma, 362 NLRB No. 52,
slip op. (2015); Little River Band of Ottawa Indians Tribal
Government, 361 NLRB No. 45 (2014), enfd. 788 F.3d 537
(6th Cir. 2015), cert. denied 136 S. Ct. 2508 (2016); Soaring
Eagle Casino & Resort, 361 NLRB No. 73 (2014), enfd., 791
F.3d 648 (6th Cir. 2015), cert denied, 136 S. Ct. 2509 (2016). I
can find no factual basis for reaching a different conclusion
here. With respect to statutory jurisdiction, none of the San
Manuel exceptions applies in this case. First, under Board law,
the application of the Act to Respondent’s operation would not
implicate the Tribe’s right to self-governance because the casi-
no operation is a commercial enterprise in interstate commerce
that plays no direct role in “intramural matters” such as tribal
membership, inheritance rules and domestic relations. San
Manuel, supra at 1063 (citations omitted). It is noteworthy in
this regard that the vast majority of both customers and em-
ployees of the Casino operation are not members of the Tribe.4
Second, there is no treaty between the Tribe and the United
States, making the second exception inapplicable. Finally, as
the Board noted in the San Manuel case itself, there is no evi-
dence in the language or legislative history of the Act to sug-
gest that Congress intended to exclude Native Americans or
their commercial enterprises from the Act’s jurisdiction. Id. at

F&B Attendant, Host-Fine Dining, Host/Cashier II, Host/Cashier Non-
Tipped, Host/Cashiers Tipped, Kitchen Utility I, Kitchen Utility/Heavy
Cleaner, Maint Utly Wrkr, Server Bingo, Server Buffet, Server Enter-
tainment, Server Fine Dining, Server Restaurant, Server Table Games
Cardrm, and Spec Functions Personnel.
4 The Tribe argues that its ability to operate its intramural affairs is
nearly wholly dependent on revenues from the casino operation and
therefore application of the Act to the casino operation would effective-
ly regulate such affairs. This argument, however, has been explicitly
rejected by the Board. See San Manuel, supra at 1063; see also Little
River Band, supra at fn. 5.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
1058–1059. 5
Respondent urges that the Board should decline to exercise
its jurisdiction over the Tribe based on the fact that it has
adopted a Tribal Labor Relations Ordinance which grants its
employees rights similar to those granted by Section 7 of the
Act. Under the circumstances, Respondent argues, there is no
necessity to “effectuate the policies of the Act.” (R. Br. at 23–
24.) This argument misapprehends the Board’s standard for
exercising its discretionary jurisdiction. As the Board made
clear in San Manuel, the discretionary jurisdiction analysis
requires balancing the Board’s mandate to “protect and foster
interstate commerce” against potential harm to tribes’ special
attributes of sovereignty, not a consideration of whether a par-
ticular Tribal employer had agreed to grant its employees rights
that echo the protections of federal law. See San Manuel, supra
at 1062–1063.
Consistent with the foregoing, I find that the Act applies to
the instant dispute affecting commerce, and that the Board has
jurisdiction over this dispute, pursuant to Section 10(a) of the
Act.6 I further find that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and that, based on the record as a whole and specifical-
ly on the undisputed testimony of former Local 135 Organizing
Director German Ramirez (Ramirez), that the Union constitutes
a “labor organization” within the meaning of Section 2(5) of
the Act.7
ALLEGED UNFAIR LABOR PRACTICES
It is undisputed that, on or about December 11, 2015, Re-
spondent paid each of the unit employees a $500 bonus. (Jt.
Exh. 1.) The General Counsel alleges that, by doing so, Re-
spondent violated Sections 8(a)(5) and (1) of the Act in that it
failed to provide Local 135 with notice and the opportunity to
bargain over the bonus. By way of defense, Respondent asserts
that it did give the Union appropriate notice and remained ame-
nable to bargaining over its bonus decision; it alternately claims
that it was privileged, based on past practice, to award the bo-
nuses absent notice to the Union. The General Counsel addi-
tionally alleges that Respondent violated Section 8(a)(3) and
(1) of the Act by paying each of its nonrepresented employees a
bonus twice the amount of the unit employees. Respondent
asserts that its 2015 bonus payments merely acted to equalize
the overall compensation paid to unrepresented versus repre-
sented employees and therefore cannot be found to have dis-
criminated against the latter group.

5 Respondent argues that San Manuel was implicitly overruled by
the Supreme Court in Michigan v. Bay Mills Indian Community, 134 S.
Ct. 2024 (2014). The Board has since rejected this argument on the
grounds that the Bay Mills holding was premised on precedent that the
Board had already considered and distinguished in San Manuel itself.
See Casino Pauma, supra at fn. 3.
6 Because I find that Respondent’s jurisdictional argument lacks
merit, I do not need to decide whether, as the General Counsel and
Charging Party have argued, Respondent was estopped from raising
this argument based on its failure to raise it during the representation
case proceeding that led to Local 135’s certification.
7 See Tr. 48–50.
A. Background
Numerous witnesses offered evidence regarding the parties’
past practice of awarding year-end bonuses. It is undisputed
that, since at least 1999, Respondent had a policy of awarding
such bonuses, that this practice was not negotiated with the
Charging Party’s predecessor, the CWA, and that unit employ-
ees’ year-end bonuses have never been addressed in any collec-
tive-bargaining agreement. While the bonus amount varied
from year-to-year based on the profitability of the casino opera-
tion,8 there is no dispute that, prior to 2015, Respondent paid its
union-represented employees and nonrepresented employees
bonuses in equal amounts. (Tr. 113, 129, 168, 170, 229–231,
283-284, 355.)
The parties’ current collective-bargaining agreement, effec-
tive March 11, 2015, to March 10, 2018, was reached after 6
days of bargaining between October 2014 and January of the
following year. The Tribe’s Attorney General, Tuari Bigknife
(Bigknife), was Respondent’s lead negotiator. Speaking for the
Union was its president, Mickey Kasparian (Kasparian). It is
undisputed that Respondent, during these negotiations, never
made a specific proposal involving a year-end bonus. (R. Exh.
13; Tr. 256–258, 374.) However, the subject of bonuses was
addressed—off the record—during two bargaining sessions in
January. Respondent’s general manager Christopher Kelley9
testified that, at the first of the two meetings, Bigknife dis-
cussed three potential compensation “triggers”: a flat, per-hour
wage increase; a percentage wage increase; and a “bonus tool”
that could either be used alone or in conjunction with one of the
other options. Bigknife, according to Kelley, specifically asked
if the Union had any interest in the third option, which would
involve reserving a portion of the unit employees’ compensa-
tion until the end of the year and then paying it in bonus form.
Kasparian expressed no interest in that option and instead
wanted to “stay strictly with a flat dollar amount per hour.”
(Tr. 201–202, 257.)
Ultimately, Kasparian proposed a 40-cent per hour, flat wage
increase for unit employees, which Respondent accepted. In
discussion of this increase, Bigknife specifically warned Kas-
parian that Respondent was agreeing to a greater wage increase
for unit employees than it had budgeted for the Casino’s non-
bargaining unit employees.10 Respondent, Bigknife said, was
“going to have to find a way to make those guys whole” and
that, if the casino operation hit
its profit targets during the year, Respondent would be pay-
ing out a bonus payment to the nonrepresented portion of its
work force. (Tr. 263–264, 268.)11 As both Bigknife and Kelley

8 Witnesses generally agreed that: from 2008 to 2011, employees
received $100 holiday gift cards; in 2012, employees received $1000 in
cash; and in 2013 and 2014, employees received 100 “V-Bucks” (i.e.,
vouchers redeemable at certain casino operation establishments). (Tr.
130, 134–135, 283, 287, 289, 300.)
9 While the witness testimony regarding the two meetings did not
vary significantly, I have tended to credit Kelley, whose recollection
was specific and unembellished. Kasparian did not testify.
10 It is undisputed that Respondent did, during the year, award a 2-
percent wage increase for its nonrepresented employees. (Tr. 367.)
11 Bigknife’s testimony was consistent; he claimed to having told
Kasparian that Respondent “knew that there was going to need to be a
VIEJAS BAND OF KUMEYAAY INDIANS D/B/A VIEJAS CASINO & RESORT 7
admitted, however, Respondent expressed no firm intention to
paying a bonus; as Bigknife put it, “there was no decision at
that time that we were going to pay bonuses.” (Tr. 268–269,
449.)
B. The December 2015 Bonus
According to Respondent’s witnesses, 2015 was a more prof-
itable year than they had foreseen in January. In early October,
Respondent’s vice president of human resources, Laura Brown
(Brown), discussed with Kelley “how much money was availa-
ble and who we were going to give bonuses to.” (Tr. 324.)
According to Kelley, because the Union had negotiated a raise
that was significantly higher than that Respondent had paid to
its nonrepresented work force, equity demanded that, for the
first time, Respondent would pay the union-represented em-
ployees a lower bonus amount. Kelley explained that, in prior
years, there had not been “this level of inequity” between the
raises awarded each group. Kelley testified that, while she and
Brown considered not awarding any bonus to the unit employ-
ees, they rejected this idea out of a concern that such an action
would negatively impact morale. (Tr. 237, 324–325.)
According to Brown, Kelley dictated that the nonunion front-
line (i.e., nonexempt) employees12 should have a “significant”
bonus, and this was the starting point she used to develop a
methodology for the bonuses. (Tr. 326–327, 338.) Brown
testified that, based on past bonuses, she interpreted “signifi-
cant” to mean at least $1000 per employee; she then performed
a rough calculation aimed at equalizing the two groups’ overall
annual compensation. As she explained it, based on the fact
that unit employees had received an approximately 4-percent
increase under their new contract and the nonunit employees
had only received a 2-percent increase, she was able to achieve
“parity” between the two groups by awarding each unit em-
ployee one half of the $1000 bonus offered to nonunit employ-
ees. (Tr. 335–336) According to Brown, the process of finaliz-
ing this calculation took approximately 2 months, during which
time the Union was deliberately left out of the loop so that the
bonus announcement would be “a surprise.” (Tr. 333–334,
342.)
In early December,13 Brown called Ramirez and invited him
to attend a series of “all team member” meetings at the casino
on December 8. Brown offered no information about the sub-
ject of the meetings, but told Ramirez the start time of each.
Arriving at the casino approximately fifteen minutes before the
start time for the first meeting, Ramirez encountered Bigknife;
after Ramirez explained his presence, Bigknife expressed doubt

true up at the end of the year and we were targeting bonuses for that
true up.” (Tr. 336.)
12 While Brown initially testified that Kelley wanted “all the front-
line team members” (i.e., including represented employees) to receive a
significant bonus, she quickly corrected herself, noting that his refer-
ence was to all nonrepresented frontline employees. Based on Brown’s
candid demeanor, I believe that her initial characterization was an inno-
cent misstatement. (Tr. 327.)
13 The record is unclear as to when specifically this telephone con-
versation occurred. (Tr. 62, 329.)
that he had been invited to attend.14 Ramirez proceeded to the
casino’s security office (where he typically checked in) and
waited. After 5–8 minutes, Ramirez got a text message from
Brown telling him to meet Bigknife at a different entrance,
which he did. (Tr. 62–66.)
Once they had met up again, Bigknife told Ramirez that the
meetings were being held to announce the employees’ year-end
bonus, and that the unit employees were going to receive one-
half of the bonus amount received by the casino’s nonrepre-
sented employees. Bigknife then asked Ramirez if he still
wanted to attend the meeting. According to Ramirez, Bigknife
said, “there might be a lot of angry union members”; Bigknife
recalled simply stating that Ramirez might not be “comforta-
ble” attending. Ramirez responded in effect that he could han-
dle any unhappy employees and would attend. (Tr. 67–68.)15
Following their discussion, Bigknife and Ramirez proceeded
to the meeting together. Held in one of the casino’s ballrooms,
the meeting was attended by both represented and nonrepre-
sented employees, as well as various levels of management,
including Kelley and Brown. Brown informed the assembled
employees that the nonrepresented employees were going to get
a merit raise in January and that the union-represented employ-
ees would get their contractual raises shortly thereafter. (Tr.
70–71.) Next, Kelley spoke. After delivering a power point
presentation lauding the casino’s successful year, Kelley an-
nounced the year-end bonus, adding:
Now there are three things about the bonuses that I would like
you all to know. First, they will be distributed this Friday,
December 11th within your departments unless you hear oth-
erwise. Two, not all of the bonuses are for the same amounts.
Three, to our union team members, this year’s bonus is not
something that is a part of the union contract. The compensa-
tion adjustments that you received were
bargained for earlier this year and did not include bonuses.
That being said, the Tribe has agreed to pay them anyway.
But, given that our non-union team members’ compensation
was treated differently, our nonunion team members will see a
bonus of at least double the union amount.
(R. Exh. 15.) It is undisputed that Kelley delivered the same
remarks at each of the three employee meetings that day.
Immediately following the first meeting, Ramirez discussed
the bonus announcement with Kelley, thanking him for giving
the represented employees a bonus. According to Kelley, he
also asked Ramirez how he thought the team members would
react, to which Ramirez responded that there might be a “few
complaints.” Either the same day or the next, Ramirez also

14 Bigknife did not deny making this remark and claimed that he
knew that Ramirez was invited to the meeting. In any event, he admit-
ted telling Ramirez to “hold on” because, although Bigknife planned on
having “a conversation” with him, he needed to talk with Brown first
and find out “what conversation she had had with him.” (Tr. 356–357.)
15 While Bigknife’s version of the meeting contained more detail,
including a specific reference to Respondent’s concern with equalizing
compensation between represented and nonrepresented employees, I do
not find any material distinctions in his recollection versus that of
Ramirez. (Tr. 357–358.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
thanked Brown. According to Brown, Ramirez mentioned the
bonus discrepancy between unit and nonunit members and “just
kind of shrugged and said that’s my job to deal with that.” At
some point on December 8, Ramirez informed Kasparian about
the bonus announcement. (Tr. 95–96, 108–110, 228, 330.)
DISCUSSION AND ANALYSIS16
A. Did the 2015 Year-End Bonus Violate Section 8(a)(3)?
Section 8(a)(3) of the Act makes it unlawful for an employer,
“by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discour-
age membership in any labor organization.” As the Supreme
Court has explained, the Act’s reference to “discrimination”
and “to . . . discourage” signify that, to violate this Section
8(a)(3), an employer must be motivated by an antiunion pur-
pose. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33
(1967). Accordingly, to establish a violation, the General
Counsel is typically expected to prove such a motive. Id.
In this case, I find that the General Counsel did not adduce
any extrinsic evidence of animus against the Union, which is
fatal to its prima facie case under a traditional, Wright Line17
analysis. In particular, I reject the General Counsel’s conten-
tion that Respondent’s motive is suspect because it acted incon-
sistently with its stated “benchmark” of paying all frontline
employees a “significant” bonus. This argument appears to be
premised on the minor (and quickly corrected) misstatement by
Brown in explaining the process of formulating the bonuses
(discussed supra), and not otherwise borne out by the record
evidence. The General Counsel also suggests that Kelley’s
comments in announcing the bonuses were intended to convey
to unit employees that they were considered less valuable to
Respondent based on their represented status. I disagree. On
its face, what Kelley’s speech conveyed was that the lower
bonus for unit employees was due to the wage increase it had
agreed to pay them earlier that year.18
The lack of extrinsic evidence of an antiunion motive, how-
ever, is not determinative here, in that I find that this case is
more properly analyzed under the Supreme Court’s Great Dane
standard. Under this doctrine, the Board recognizes that some
employer conduct is so “inherently destructive” of employee
interests that it may be deemed proscribed by Section 8(a)(3)
even absent proof of an underlying improper motive. Great
Dane Trailers, supra at 33; NLRB v. Erie Resistor Corp., 373

16 To the extent that I have made them, my credibility findings are
indicated above in the findings of fact for this decision. A credibility
determination may rely on a variety of factors, including the context of
the witness’ testimony, the witness’ demeanor, the weight of the re-
spective evidence, established or admitted facts, inherent probabilities
and reasonable inferences that may be drawn from the record as a
whole. Farm Fresh Co., Target One, LLC, 361 NLRB No. 83, slip op.
at 13–14 (2014).
17 See 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
18 I note that the General Counsel does not allege that Kelley’s
comments amounted to an individual violation of Section 8(a)(1). See,
e.g., Phelps Dodge Min. Co., 308 NLRB 985, 995 (1992) (statement
about a benefit that suggests that coverage is conditioned on non-
represented status independently violates § 8(a)(1)), enf. denied 22 F.3d
1493 (1994).
U.S. 221, 228 (1963). In such cases, the conduct “bears its own
indicia of intent” and an employer violates the Act “whatever
the claimed overriding justification may be,” because it is pre-
sumed “[t]o intend the very consequences which foreseeably
and inescapably flow from [its] actions . . .” Great Dane Trail-
ers, supra at 33; Erie Resistor Corp., supra at 228.19 That said,
not every action that facially discriminates on the basis of Sec-
tion 7 activity is properly considered inherently destructive; as
the Supreme Court has cautioned, where an employer’s conduct
results in only a “comparatively slight” harm to employee
rights, the employer’s action will not itself definitively establish
animus and it may defend itself by showing its conduct served
“a substantial and legitimate business end.” Erie Resister
Corp., 373 U.S. at 228.
In International Paper Co., the Board set forth four “funda-
mental guiding principles” for determining whether employer
conduct is properly considered inherently destructive or should
instead be viewed as having only a “comparatively slight” im-
pact on employee rights. 319 NLRB 1253, 1269 (1995), enf.
denied 115 F.3d 1045 (D.C. Cir. 1997). First, the Board looks
to the severity of the harm to employees’ Section 7 rights.
Second, the Board considers the temporal impact of the em-
ployer’s conduct, i.e., whether the conduct merely influences
the outcome of a particular dispute or whether it has “far reach-
ing effects which would hinder future bargaining.” Third, the
Board distinguishes between conduct intended to support an
employer’s bargaining position as opposed to conduct demon-
strating “hostility to the process of collective bargaining.”
Finally, the Board assesses whether the employer’s conduct
discourages collective bargaining by “making it seem a futile
exercise in the eyes of the employees.” Id. at 1269–1270. In
accordance with these principles, the Board has found that
“[w]here an employer withholds from its represented employ-
ees an existing benefit (i.e., an established condition of em-
ployment), such conduct is inherently destructive.”20
As discussed, infra, I find such cases distinguishable and fur-
ther find that Respondent’s actions were not inherently destruc-
tive. It is true that Respondent facially withheld at least a por-
tion of an established benefit (an equal bonus) from its repre-
sented work force. To the extent Respondent appeared to con-
dition the right to a “significant” bonus on employees’ nonrep-
resented status, it could be viewed as punishing Unit employees
while rewarding its remaining employees for not choosing un-
ion representation. Had the Unit employees not received, as a
result of contract negotiations, double the wage increase of
their nonrepresented counterparts, the chilling effect of Re-
spondent’s singling them out for lower bonus payments would
in fact be severe and arguably far reaching. However, viewed
against the backdrop of the Unit employees’ relatively generous

19 Under such circumstances, the employer’s only defense is to “ex-
plain[] away, justify[] or characterize[e]” its actions “‘as something
different than they appear on their face.’” Great Dane Trailers, Inc.,
388 U.S. at 33–34.
20 Arc Bridges, Inc., 355 NLRB 1222, 1223 (2010) (withholding an-
nual, across-the-board wage increase from represented employees is
inherently destructive), enf. denied 662 F.3d 1235 (D.C. Cir. 2011);
Eastern Maine Medical Center, 253 NLRB 224, 242 (1980) (same),
enfd. 658 F.2d 1 (1st Cir. 1981).
VIEJAS BAND OF KUMEYAAY INDIANS D/B/A VIEJAS CASINO & RESORT 9
2015 raise, I do not interpret Respondent’s act of offsetting a
wage differential with year-end bonuses as having such an ef-
fect, and the General Counsel offered no compelling evidence
to the contrary.
For the same reason, I do not find that the 2015 bonuses evi-
denced hostility to collective bargaining or made bargaining
appear futile. Where the withdrawal of a benefit based on un-
ion membership has been found inherently destructive, the
Board has specifically noted that the withdrawal was either (a)
undertaken taken in direct response to its employees’ selection
of a collective-bargaining representative;21 or (b) put in effect
during the course of negotiating wages with the employees’
union.22 In both cases, the employer’s aim in withholding a
benefit is to force the union to bargain for it back; therefore,
collective bargaining is frustrated and the withholding is
deemed inherently destructive. The same cannot be said where,
as here, the impetus for the withholding was not to gain an edge
in ongoing or future bargaining but rather to accommodate the
Union’s demand for an up-front wage increase twice what Re-
spondent paid its nonrepresented work force. In this regard, I
credit Respondent’s witnesses, who consistently testified that
the reason for paying lower bonus amounts to represented em-
ployees was to equalize the two employee groups’ overall pay.
At the bargaining table, Bigknife foreshadowed this, by an-
nouncing, in the context of the unit employees’ wage increase,
that Respondent was going to have to make its non-represented
employees “whole” by means of a bonus payment. Under these
circumstances, I cannot find that Respondent’s conduct had the
inevitable effect of discouraging collective bargaining in the
affected employees’ eyes to the point of making it appear fu-
tile.23 Instead, I find that any harm to unit employees’ rights
caused by the bonus differential was “comparatively slight,”
and that Respondent established a substantial and legitimate
business justification for awarding them a lower bonus.
Accordingly, consistent with the above-cited precedent, I
find no merit to the allegation that Respondent violated Section
8(a)(3) and (1) of the Act, and would dismiss that portion of the
complaint.
B. Did the 2015 Year-End Bonus Violate Section 8(a)(5)?
It is well established that, as a general rule, an employer may
not make unilateral changes in mandatory subjects of bargain-
ing without first bargaining to a valid impasse. NLRB v. Katz,
369 U.S. 736 (1962). A unilateral change to a mandatory sub-
ject is a per se breach of the Section 8(a)(5) duty to bargain,
and no showing of a bad-faith motive is required. Id. at 743.
The fact that a unilateral change is economically beneficial to
employees does not excuse the violation. Allied Mechanical
Services, 332 NLRB 1600, 1609 (2001) (whether beneficial or
harmful to employees, the unilateral changes offend the em-

21 See, e.g., United Aircraft Corp, Hamilton Standard Division
(Bran Filament Plant), 490 F.2d 1105 (2d Cir. 1973), enfg. 199 NLRB
658 (1972).
22 See, e.g., Arc Bridges, Inc., and Eastern Maine Medical Center,
supra.
23 Once again, I note that the General Counsel has not alleged that
Kelley’s comments constituted an independent violation of Section
8(a)(1).
ployer’s statutory bargaining obligation). It is well established
that the payment of an employee bonus is a mandatory subject
of bargaining, even where, as here, the bonus is an implied term
and condition of employment established by the parties’ past
practice, rather than the subject of a contractual provision.
Santa Cruz Skilled Nursing Center, Inc., 354 NLRB No. 25,
slip op. at 4 (2009) (not reported in Board volumes); Finch,
Pruyn & Co., 349 NLRB 270 fn. 31 (2007) (citation omitted);
Bonnell/Tredegar Industries, 313 NLRB 789 (1994), enfd. 46
F.3d 339 (1995). See also Lafayette Grinding Corp., 337
NLRB 832 (2002) (making unilateral change to implied term or
condition of employment violates the Act).
Respondent has the burden to show that the Union received
timely and meaningful notice—actual or constructive—of the
2015 bonus payment.24 Where an employer merely informs a
union of a course of action that the employer will take, without
inviting the Union to discuss the matter, this does not constitute
meaningful notice and an opportunity to bargain. General Die
Casters, Inc., 359 NLRB 89, 105 (2012); Brannan Sand &
Gravel Co., 314 NLRB 282 (1994); Ciba-Ceigy Pharmaceuti-
cal Division, 264 NLRB 1013, 1017 (1982), enfd. 722 F.2d
1120 (3d Cir. 1983). Moreover, once an employer announces a
unilateral change to the affected employees, the Union can
reasonably conclude at that point that the matter is a fait ac-
compli and that it would therefore be futile to object. See, e.g.,
Burrows Paper Corp., 332 NLRB 82, 83 (2000) (following
employer’s announcement of a wage increase to employees,
Union could reasonably conclude that Respondent had made up
its mind and objecting to the raises would be futile) (citing
Insulating Fabricators, Inc. Southern Division, 144 NLRB
1325, 1332 (1963); Intersystems Design Corp., 278 NLRB 759
(1986)).
In this case, despite the fact that it had determined months
earlier to pay its union-represented employees a year-end bo-
nus, Respondent deliberately kept its plan under wraps and only
informed Local 135’s representative Ramirez about it minutes
before it was to be announced to the affected employees.
Moreover, contrary to Respondent’s claims, Respondent never
indicated that it was open to discuss whether to award the year-
end bonus; instead, Bigknife by his own admission simply in-
formed Ramirez that the bonus would be paid. By presenting
its decision as a fait accompli, Respondent relieved the Union
of its duty to request bargaining. In addition, unlike the cases
cited by Respondent, the “pre-implementation notice” given to
Local 135 was followed a mere 10 minutes later by the an-
nouncement of that change to the affected employees. Thus,
even to the extent that Bigknife’s remarks could be interpreted
as an invitation to bargain, allowing the Union the time in
which it took Ramirez and Bigknife to walk to the meeting to
effectively protest the bonus utterly fails to meet the standard of

24 Catalina Pacific Concrete Co., 330 NLRB 144 (1999); Metropol-
itan Teletronics, 279 NLRB 957 (1986), enfd. 819 F.2d 1130 (1987);
see also Defiance Hospital, 330 NLRB 492 (2000) (“[a]n employer
must inform a union of its proposals under circumstances which at least
afford a reasonable opportunity for counter arguments or proposals”)
(citing NLRB v. Centra, Inc., 954 F.2d 366 (6th Cir. 1992)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
timely and meaningful notice.25
Respondent alternately claims that, because the 2015 bonus
structure acted to equalize the overall compensation awarded to
its union-represented versus nonrepresented work force, Re-
spondent’s decision to implement this measure “merely main-
tained the status quo” of implementing bonuses “with the goal
of equalizing annual compensation” among the two groups. (R.
Br. at 35–36 & fn. 16) But the record indicates that Respond-
ent had no past practice of using bonuses in this manner; indeed
Kelley’s admission that there had been at least some overall
inequity between the two groups in the past, the pre-2015 bo-
nuses had always been equal. (See Tr. 237; “[s]o we hadn’t
had this level of inequity in prior years. . . [n]ow for the first
time we had a very significant level of disequilibrium between
the two halves of the workforce”) (emphasis added). As such,
Respondent’s alternate defense of maintaining the status quo is
rejected.
While Respondent does not explicitly argue that Local 135
waived the right to bargain over a reduced bonus amount, any
such claim would lack merit, in that there is no credible evi-
dence to support such a claim. The party claiming that a waiver
has occurred bears the burden of showing that the union clearly
and unmistakably relinquished its right to bargain over the sub-
ject matter. Bath Iron Works Corp., 345 NLRB 499, 501
(2005); TCI of New York, 301 NLRB 822, 824 (1991); Twin
City Garage Door Co., 297 NLRB 119, 128 (1989). Here, the
evidence establishes that prior to the day of the bonus an-
nouncement, Respondent did not provide clear notice of its
intent to change the past practice by halving the amount of
bonuses paid to unit employees. Sykel Enterprises, Inc., 324
NLRB 1123, 1123 (1997) (in absence of a clear notice of an
intended change to a past practice, there is no basis to find that
a union waived its right to bargain over the change).
Consistent with the above-cited precedent, Respondent, by
implementing its December 2015 year-end bonus for unit em-
ployees without advance notice to the Union and without
providing an opportunity to bargain, made an unlawful unilat-
eral change. Accordingly, I find that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act as alleged.
CONCLUSIONS OF LAW
1. Respondent Viejas Band of Kumeyaay Indians is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers International Un-
ion Local 135, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act with 9(a) status under the
Act.
3. At all times since September 30, 2014, the Union has
been the certified collective-bargaining representative, within

25 I reject Respondent’s argument that Kelley, at the employee meet-
ings, left open the possibility for bargaining by stating that the bonuses
would be distributed the following Friday “within your departments
unless you hear otherwise.” At most, this suggests to me that Respond-
ent was leaving its options open as to the timing and means of distrib-
uting the bonus payments; that Kelley was somehow telegraphing in
these remarks a willingness to bargain over whether to award the bo-
nuses is frankly implausible on its face.
the meaning of Section 9(b) of the Act, of an appropriate unit of
employees, comprised of:
Individuals employed within the following classifications:
Asian Cook, Asian Host/Cashier, Barback, Barista, Bartender
I, Bartender II, Bartender III, Bingo Snack Bar Attendant,
Busser, Busser-Buffet, Busser-Restaurant, Casino Porter, Ca-
sino Service Attendant, Cook I, Cook I-Pastry, Cook II, Cook
II-Fine Dining, Cook II-Pastry, Cook III, Cook III-Fine Din-
ing, Expediter, F&B Attendant, Host-Fine Dining,
Host/Cashier II, Host/Cashier Non-Tipped, Host/Cashiers
Tipped, Kitchen Utility I, Kitchen Utility/Heavy Cleaner,
Maint Utly Wrkr, Server Bingo, Server Buffet, Server Enter-
tainment, Server Fine Dining, Server Restaurant, Server Table
Games Cardrm, and Spec Functions Personnel.
4. At all material times, Respondent has recognized the Un-
ion as the designated exclusive collective-bargaining repre-
sentative of the unit employees.
5. Respondent violated Section 8(a)(5) and (1) of the Act by
unilaterally revising its year-end bonus program by reducing
the bonus amount paid to unit employees without providing the
Union with prior notice and the opportunity to bargain over this
decision or its effects.
6. The unfair labor practices, described above, affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. In addition to the usual cease-and-desist
order and other affirmative relief, I recommend that the Re-
spondent be ordered to make the unit employees whole for the
loss of earnings they suffered as a result of the Respondent’s
unlawful, unilateral, and discriminatory change to its estab-
lished practice regarding annual supplemental bonuses. The
backpay is to be augmented by interest computed in accordance
with New Horizons, 283 NLRB 1173 (1987).26
Additionally, in accordance with the Board’s decision in
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016),
Respondent should be ordered, within 21 days of the dates
the amounts of backpay are fixed, either by agreement or
Board order, to submit and file the appropriate documenta-
tion allocating the backpay awards to the appropriate calendar
quarters or periods (reports allocating backpay) with the Re-
gional Director for Region 21. Respondent will be required to

26 In cases involving a violation of Section 8(a)(5) based on an em-
ployer’s unilateral alteration of existing benefits, it is the Board’s estab-
lished policy to order restoration of the status quo ante to the extent
feasible, and in the absence of evidence showing that to do so would
impose an undue or unfair burden upon the respondent. Allied Prod-
ucts Corp., Richard Brothers Division, 218 NLRB 1246, 1246 (1975),
enfd. in part, 548 F.2d 644 (6th Cir. 1977). Respondent claims that a
make-whole remedy is an impermissible “windfall” to Unit employees.
I disagree; Respondent acted at its peril by agreeing to the Unit em-
ployees’ wage increase without demanding a corresponding decrease in
their established bonus amounts. As such, I do not consider a make-
whole remedy undue or unfair.
VIEJAS BAND OF KUMEYAAY INDIANS D/B/A VIEJAS CASINO & RESORT 11
allocate backpay to the appropriate calendar years only. The
Regional Director then will assume responsibility for trans-
mission of the reports to the Social Security Administration at
appropriate times and in the appropriate manner.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended27
ORDER
Respondent, Viejas Band of Kumeyaay Indians, its officers,
agents, successors and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Union as the ex-
clusive bargaining representative of employees in the following
unit (the unit):
Individuals employed within the following classifications:
Asian Cook, Asian Host/Cashier, Barback, Barista, Bartender
I, Bartender II, Bartender III, Bingo Snack Bar Attendant,
Busser, Busser-Buffet, Busser-Restaurant, Casino Porter, Ca-
sino Service Attendant, Cook I, Cook I-Pastry, Cook II, Cook
II-Fine Dining, Cook II-Pastry, Cook III, Cook III-Fine Din-
ing, Expediter, F&B Attendant, Host-Fine Dining,
Host/Cashier II, Host/Cashier Non-Tipped, Host/Cashiers
Tipped, Kitchen Utility I, Kitchen Utility/Heavy Cleaner,
Maint Utly Wrkr, Server Bingo, Server Buffet, Server Enter-
tainment, Server Fine Dining, Server Restaurant, Server Table
Games Cardrm, and Spec Functions Personnel.
(b) Unilaterally reducing the annual, year-end bonus for unit
employees, without first affording the Union notice and an
opportunity to bargain over this decision and/or its effects.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Rescind the unlawful unilateral change implemented in
December 2015 to the annual, year-end bonus for unit employ-
ees, and notify its employees in writing that this has been done.
(b) Before implementing any changes in wages, hours or
other terms and conditions of employment of unit employees,
notify and, on request, bargain with the Union as their exclu-
sive collective-bargaining representative of the unit employees.
(c) Make employees who were part of the unit and eligible
for an annual, year-end bonus in 2015 whole, with interest, for
the loss in earnings they suffered as a result of the unlawful
change to the practice of awarding annual, year-end bonuses,
and specifically for the reduction in the amounts of their bonus-
es in 2015.
(d) Within 14 days after service by the Region, post, in Eng-
lish and Spanish, at its Alpine, California job location copies of
the attached notice marked “Appendix.”28 Copies of the notice,

27 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
28 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-
on forms provided by the Regional Director for Region 21,
after being signed by Respondent’s authorized representative,
shall be posted by Respondent and maintained for 60 consecu-
tive days in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by 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, Respondent has
gone out of business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and for-
mer employees employed by Respondent at any time since
December 8, 2015.
(e) Within 21 days after service by the Region, file with the
Regional Director for Region 21 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
It is further ordered that the complaint is dismissed insofar as
it alleges violations of the Act not specifically found.
Dated: Washington, D.C. October 11, 2016
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 violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
The United Food and Commercial Workers Union Local 135,
AFL–CIO, CLC (the Union), is the representative of the em-
ployees in the following unit for purposes of dealing with us
regarding wages, hours and other working conditions:
Individuals employed within the following classifications:
Asian Cook, Asian Host/Cashier, Barback, Barista, Bartender
I, Bartender II, Bartender III, Bingo Snack Bar Attendant,
Busser, Busser-Buffet, Busser-Restaurant, Casino Porter, Ca-
sino Service Attendant, Cook I, Cook I-Pastry, Cook II, Cook
II-Fine Dining, Cook II-Pastry, Cook III, Cook III-Fine Din-
ing, Expediter, F&B Attendant, Host-Fine Dining,
Host/Cashier II, Host/Cashier Non-Tipped, Host/Cashiers

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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Tipped, Kitchen Utility I, Kitchen Utility/Heavy Cleaner,
Maint Utly Wrkr, Server Bingo, Server Buffet, Server Enter-
tainment, Server Fine Dining, Server Restaurant, Server Table
Games Cardrm, and Spec Functions Personnel.
WE WILL NOT refuse to recognize and bargain collectively in
good faith with the Union as the exclusive collective-
bargaining representative of our employees in the above-
mentioned unit.
WE WILL NOT unilaterally reduce your annual, year-end bo-
nus without first providing the Union notice and an opportunity
to bargain over this decision and/or its effects.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL rescind the unlawful unilateral change implemented
in December 2015 to our annual, year-end bonus practice, and
notify you in writing that this has been done.
WE WILL, before implementing any changes in your wages,
hours or other terms and conditions of employment, notify and,
on request, bargain with the Union as your exclusive collective-
bargaining representative.
WE WILL make employees who were part of the unit and eli-
gible for a year-end, annual bonus in December 2015 whole,
with interest, for the loss in earnings they suffered as a result of
the unlawful change to our practice regarding annual, year-end
bonuses and for the reduction in the amounts of their 2015 bo-
nuses.
VIEJAS BAND OF KUMEYAAY INDIANS D/B/A
VIEJAS CASINO &RESORT
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/21-CA-166290 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.