Racetrack Food Services, Inc. and Casino Food Services, Inc. as a single employer or joint employers

National Labor Relations Board - Board Decisions

Sep 30, 2010

355 N.L.R.B. 1258 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 204
1258
Racetrack Food Services, Inc. and Casino Food Ser-
vices, Inc., Single Employer and UNITE HERE,
Local 274. Case 4–CA–35158
September 30, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On December 31, 2008, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 353 NLRB 687.1 Thereafter, the
Respondent filed a petition for review in the United
States Court of Appeals for the Third Circuit and the
General Counsel filed a cross-application for enforce-
ment. On June 17, 2010, the United States Supreme
Court issued its decision in New Process Steel, L.P. v.
NLRB, 130 S.Ct. 2635, holding that under Section 3(b) of
the Act, in order to exercise the delegated authority of the
Board, a delegee group of at least three members must be
maintained. Thereafter, the court of appeals remanded

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
this case for further proceedings consistent with the Su-
preme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and conclu-
sions and to adopt the recommended Order to the extent
and for the reasons stated in the decision reported at 353
NLRB 687 (2008), which is incorporated herein by ref-
erence.3

2 Consistent with the Board’s general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the remaining member who participated in the origi-
nal decision. Furthermore, under the Board’s standard procedures
applicable to all cases assigned to a panel, the Board Members not
assigned to the panel had the opportunity to participate in the adjudica-
tion of this case at any time up to the issuance of this decision.
3 Member Hayes would join former Member Schaumber in applying
Contract Flooring Systems, 344 NLRB 925 (2005), and Bohemian
Club, 351 NLRB 1065 (2007), as extant law for the purposes of decid-
ing this case. As to the former, he shares former Member Schaumber’s
view that the more appropriate standard for establishing the relevance
of requested nonunit information is that stated by the Third Circuit in
Hertz Corp. v. NLRB, 105 F.3d 868, 874 (1997). As to the latter,
Member Hayes questions the rationale for exempting management-
rights clauses from the general rule that contractual terms on mandatory
bargaining subjects survive contract expiration. He may address this
issue fully when properly raised in a future case.