Circus Circus Hotel

National Labor Relations Board - Board Decisions

Apr 14, 1995

316 N.L.R.B. 1235 (N.L.R.B. 1995)

1235
316 NLRB No. 189
CIRCUS CIRCUS HOTEL
1 In addition to denying that the Union’s certification was proper,
the Respondent’s answer also asserts as affirmative defenses that the
complaint fails to state a claim on which relief can be granted, and
that the proceeding is barred by the doctrines of estoppel and un-
clean hands. Although the Respondent in its response to the Notice
to Show Cause asserts that these affirmative defenses should be ad-
dressed by the Board, it does not explain why the complaint fails
to state a claim, or how or why the doctrines of estoppel or unclean
hands have any relevance to this proceeding or excuse its admitted
refusal to bargain with the Union. In these circumstances, we find
that the Respondent’s affirmative defenses are insufficient to warrant
denial of the General Counsel’s Motion for Summary Judgment in
this proceeding.
Circus Circus Casinos, Inc., d/b/a Circus Circus
Hotel & Casino-Reno and International Union,
United Plant Guard Workers of America
(UPGWA). Case 32–CA–14550
April 14, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
Pursuant to a charge filed by the Union on February
22, 1995, the General Counsel of the National Labor
Relations Board issued a complaint on February 28,
1995, alleging that the Respondent has violated Section
8(a)(5) and (1) of the National Labor Relations Act by
refusing the Union’s request to bargain following the
Union’s certification in Case 32–RC–3952. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed an an-
swer admitting in part and denying in part the allega-
tions in the complaint, and submitting affirmative de-
fenses.
On March 20, 1995, the General Counsel filed a
Motion for Summary Judgment and Memorandum in
Support. On March 21, 1995, the Board issued an
order transferring the proceeding to the Board and a
Notice to Show Cause why the motion should not be
granted. On April 4, 1995, the Respondent filed a re-
sponse.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain, but attacks the validity of the certification on
the basis of the Board’s unit determination in the rep-
resentation proceeding.1
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously 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).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Nevada corporation with an of-
fice and place of business in Reno, Nevada, has been
engaged in the retail operation of a hotel and gaming
business. During the 12-month period preceding the
issuance of the complaint, the Respondent, in the
course and conduct of its business operations, derived
gross revenues in excess of $500,000, and purchased
and received goods or services valued in excess of
$5000 which originated outside the State of Nevada.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held December 12, 1994, the
Union was certified on December 21, 1994, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All regular full-time and part-time security offi-
cers, including field training officers, security
officers/emergency medical technicians, and lead
security officers employed by the Employer at its
Reno, Nevada facility; excluding all other em-
ployees, investigators, tram personnel, administra-
tive and clerical employees, and supervisors as
defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
About February 1, 1995, the Union, by letter, re-
quested the Respondent to recognize and bargain, and,
since about February 13, 1995, the Respondent has re-
fused. We find that this refusal constitutes an unlawful
refusal to bargain in violation of Section 8(a)(5) and
(1) of the Act.
CONCLUSION OF LAW
By refusing on and after February 13, 1995, to bar-
gain with the Union as the exclusive collective-bar-
1236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
gaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 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 un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent 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, Circus Circus Casinos, Inc., d/b/a Circus
Circus Hotel & Casino-Reno, Reno, Nevada, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Union,
United Plant Guard Workers of America (UPGWA) as
the exclusive bargaining representative of the employ-
ees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, 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 exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All regular full-time and part-time security offi-
cers, including field training officers, security
officers/emergency medical technicians, and lead
security officers employed by the Employer at its
Reno, Nevada facility; excluding all other em-
ployees, investigators, tram personnel, administra-
tive and clerical employees, and supervisors as
defined in the Act.
(b) Post at its facility in Reno, Nevada, copies of the
attached notice marked ‘‘Appendix.’’2 Copies of the
notice, on forms provided by the Regional Director for
Region 32 after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. 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.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with International
Union, United Plant Guard Workers of America
(UPGWA) as the exclusive representative of the em-
ployees 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 guaranteed you by Section 7 of the Act.
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 bargaining unit:
All regular full-time and part-time security offi-
cers, including field training officers, security
officers/emergency medical technicians, and lead
security officers employed by us at our Reno, Ne-
vada facility; excluding all other employees, in-
vestigators, tram personnel, administrative and
clerical employees, and supervisors as defined in
the Act.
CIRCUS CIRCUS CASINOS, INC., D/B/A
CIRCUS CIRCUS HOTEL & CASINO-RENO