MGM Grand Hotel, LLC d/b/a MGM Grand

National Labor Relations Board - Administrative Judge Opinions

Jun 27, 2016

28-CA-158941 (N.L.R.B. Jun. 27, 2016)

JD(SF)-29-16
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
MGM GRAND HOTEL, LLC
d/b/a MGM GRAND
Respondent,
Case 28–CA–158941
and

INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 501, AFL–CIO
Charging Party.
Stephen P. Kopstein and Larry A. Smith, Esqs.
for the General Counsel.
Paul T. Trimmer, Esq. (Jackson Lewis, LLP)
for the Respondent.
Adam Stern, Esq. (The Meyers Law Group)
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARA-LOUISE ANZALONE, Administrative Law Judge. I heard this case on March 1
and 2, 2016, in Las Vegas, Nevada. The case was tried following the issuance of an Order
Consolidating Cases, Consolidated Complaint and Notice of Hearing (the Complaint) by the
Regional Director for Region 28 of the National Labor Relations Board (the Board) on
November 30, 2015. The Complaint was based on a charge and an amended charge in Case
28–CA–158941, filed by International Union of Operating Engineers Local 501, AFL–CIO
(Local 501, the Union or Charging Party). The General Counsel alleges that Respondent
MGM Grand Hotel, LLC d/b/a MGM Grand (Respondent) violated Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended, 29 U.S.C. sec. 151, et. seq. (the Act).
Respondent filed a timely answer to the Complaint denying the commission of the alleged
unfair labor practices.
JD(SF)-29-16
2
At trial, all parties were afforded the right to call, examine, and cross-examine
witnesses, to present any relevant documentary evidence, to argue their respective legal
positions orally, and to file post-hearing briefs.1 Post-hearing briefs were filed by Respondent
and the General Counsel, and each of these briefs has been carefully considered.
Accordingly, based upon the entire record herein, including the post-hearing briefs and my 5
observation of the credibility of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION10
The complaint alleges and the evidence establishes that Respondent, a limited liability
company, is engaged in the business of operating a hotel and casino, and providing food,
lodging and entertainment in Las Vegas, Nevada. The evidence establishes, the parties admit,
and I find that, in conducting its business operations, Respondent derived gross revenues in 15
excess of $500,000, and also purchased and received at its Las Vegas facility goods valued in
excess of $50,000 directly from points located outside the State of Nevada. It is alleged,
Respondent admits, and I find that Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and further that the Union is a labor
organization within the meaning of Section 2(5) of the Act. 20
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operations and the Union’s Certification
25
Respondent operates the MGM Grand, a Las Vegas hotel and casino (the Hotel). The
Hotel’s gaming operations are monitored by more than a thousand cameras; the maintenance
of these cameras was historically performed by certain Hotel employees classified as “tech
electronics.” Six of these employees were included in a unit of Respondent’s employees that
voted to be represented by the Union on July 7, 2015.2 On October 28, the Union was 30
certified as the exclusive collective-bargaining representative of that unit (the Unit).3
The General Counsel’s sole allegation is that, following the election and prior to the
Union’s certification, Respondent changed the job duties and reporting structure for these 6
employees without giving the Union notice of or an opportunity to negotiate and bargain 35
regarding this decision, or its effects, in violation of Section 8(a)(5) and (1) of the Act.
Specifically, it is alleged that “on or about July 9 and 20, August 8, 17 and 24, and September
8, 2015, Respondent moved certain of its Unit employees out of its Surveillance Department,
which changed their job duties.” (GC Exh. 1(e) at ¶ 5(d)).
40

1 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for General
Counsel’s Exhibit; “R. Exh.” for Respondent’s Exhibit; “GC Br.” for the General Counsel’s post-
hearing brief and “R. Br.” for Respondent’s post-hearing brief.
2 All dates herein refer to 2015, unless otherwise noted.
3 The Unit includes: “[a]ll full-time and regular part-time locksmiths, water quality, and tech
electronic at Respondent’s facility, excluding all other employees, including office, clerical,
professional, guards, and supervisors as defined in the National Labor Relations Act.”
JD(SF)-29-16
3
B. Respondent’s Pre-Election Conduct
An understanding of how the employees’ job duties and reporting structure came to be
changed in the summer and fall of 2015 requires consideration of circumstances preceding
this period. As noted, for many years, they had responsible for performing maintenance work 5
on the Hotel’s surveillance and security cameras (the security maintenance work).
Historically, they had done so under the supervision and management of Respondent’s
facilities department.4 In late February, Respondent’s parent company, MGM Resorts
International (MGM Resorts), promoted its executive Ted Whiting (Whiting) to the position
of corporate vice president of surveillance. Prior to taking on his new position, Whiting 10
determined that the security maintenance work at all MGM Resorts properties, including the
Hotel, should be performed by employees reporting to each property’s surveillance
department.
For Respondent’s operation, this meant realigning the 6 tech electronics positions to report 15
to the Hotel’s surveillance department, which had a different supervisory and managerial
structure than facilities services. Between March and May, Respondent took certain steps to
implement Whiting’s plan. First, a “surveillance technician” position was created within the
surveillance department. Then, it was decided that tech electronic John Foster (Foster) would
be assigned as lead over these new positions. Finally, Respondent performed a compensation 20
study to determine a wage rate for the new position that would equalize wages among
surveillance technicians working at the various MGM Resorts properties.
These changes were announced to the affected employees on May 26, 2015.
Respondent’s Executive Director of Surveillance, Ronald Buono (Buono) gathered the tech 25
electronics and informed them that they would henceforth report to his department, not to
facility services. He also said they were being “reclassified” as “surveillance technicians” and
would receive a pay raise. There is some dispute over when precisely these changes went into
effect as a practical matter, although witnesses generally agreed that the pay change took
place effective May 27. It is undisputed that, as surveillance technicians, the employees 30
continued to perform the security maintenance work.
On June 1, Respondent’s Vice President of Facility Services, Nick Kyriazis (Kyriazis),
was approached by Bill Schlenkert (Schlenkert), one of the former tech electronics who had
been reclassified. Schlenkert told Kyriazis that he and the other recently transferred 35
employees did not want to report to Buono or Foster, but wanted instead to stay with
Kyriazis’ facilities department. The following day, Kyriazis met with the other former tech
electronics, who confirmed what Schlenkert had told him the day prior: they did not want to
report to the surveillance department and preferred to return to facility services. Kyriazis told
the men that he would “find out what we can do” and get back to them.40
Kyriazis and Buono consulted the same day with then-Director of Human Resources
Nadine Jones (Jones), about the situation. They decided to post openings for three
surveillance technicians to perform the security maintenance work within surveillance.5 It

4 The facilities department is alternately referred to various points in the transcript as “facility
services,” “facility operations” and “engineering.”
5 It was also determined that Foster would remain in the surveillance department as lead
JD(SF)-29-16
4
was then determined that there were positions within Respondent’s facilities department to
which the former tech electronics could be transferred; in these positions, they would respond
to maintenance requests throughout the Hotel and set up technical services for conventions
and other events.6 Because the decision had been made to have the security maintenance
work performed out of the surveillance department, however, the employees would have to 5
choose whether to continue to perform that work in surveillance or to transfer to back to their
old department with new job duties. Following the meeting, Jones sought financial approval
from upper management to post for the new positions, which she received on June 8.
With funding in place, Kyriazis met on June 8 with the former tech electronics, along with 10
their prior manager within the facilities department, George Caponi (Caponi). Caponi told the
employees that he understood that they did not want to report to surveillance and that, to
accommodate their concerns, they would be transferred back to positions within facilities
services. The surveillance department, he said, was going to open up a number of
surveillance technician positions for which they were free to apply. He then told them they 15
would continue performing the security maintenance work until they had trained their
replacements, at which time they would take on their new job duties.7
While still performing the security maintenance work, the former tech electronics returned
to reporting to facilities services effective June 8. Respondent posted the new surveillance 20
technician positions the same day; effective June 4, the former tech electronics’ pay raises
were rescinded. The Union’s representative Jose Soto learned of the changes around June 8
or 9. According to his undisputed testimony, he contacted a representative from Respondent’s
“corporate human resources” and asked why the change had been made. He also testified that
he “tried” to negotiate with this individual, but was refused.825
C. The Union Certification Election and
Respondent’s Implementation of its Pre-Election Changes
Approximately one month later, on July 7, a majority of the Unit employees voted for 30
representation by Charging Party. During July and August, Respondent hired the replacement
surveillance technicians. Two of the new surveillance technicians were hired shortly before
July 7, but they did not actually begin work until after that date; the remaining opening was
filled after the election.
35
None of the former tech electronics was selected for the new positions. Instead, each of
them, after his replacement was trained, was transferred to a tech electronic position within

surveillance technician.
6 To the extent there was any significant variation in the new duties each former tech electronic
would take on, I find it reasonable to infer that Kyriazis and Buono had made individual assignments
before concluding that facility services could “absorb” the six workers.
7 As Kyriazis explained, it was impossible to hire the remaining new surveillance techicians
immediately, in that the interview process lasted approximately 2 weeks, and the positions required a
background check that took between 20–30 days.
8 The individual in question, Rudy Pelato, did not testify and was not alleged as an agent of
Respondent. There is no evidence other than Soto’s characterization, of Pelato’s job duties or
authority to speak on behalf of Respondent.
JD(SF)-29-16
5
the facilities department. While the precise date of each transfer is not clear from the record,
it is undisputed that each of the six former tech electronics only began performing their new,
non-security maintenance job duties following the election.9
On December 18, the Union issued a written bargaining demand to bargain to Respondent, 5
although there is no indication that this demand specifically requested bargaining with respect
to the changed job duties and/or reporting structure of the former tech electronics. It is
undisputed that Respondent has, at all times following the election, refused to bargain over its
decision to move the former tech electronics back to facilities services with new job duties, or
the effects thereof.10
D. Analysis
Absent an impasse in bargaining, an employer violates Section 8(a)(5) of the Act when, at
a time when the affected employees are represented by a union, it makes a material and 15
substantial change in any term of employment that is a mandatory subject of bargaining
without notice to the union and affording the union an opportunity to bargain. NLRB v. Katz,
369 U.S. 736 (1962). An employer is obligated to bargain regarding its decision to make such
a change, as well as to the manner in which it is effectuated and its effects. Id. at 746; Adair
Standish Corp., 292 NLRB 890, 890 fn. 1 (1989), enfd. in rel. part 912 F.2d 854 (6th Cir. 20
1990); Eugene Iovine, 356 NLRB 1056 fn. 3 (2011). The obligation to bargain with respect to
changes in terms and conditions of employment commences not on the date of the union’s
eventual certification as exclusive bargaining representative, but as of the date of the
underlying election whereby it gained that status. Thus, an employer that makes postelection,
but precertification, changes to terms and conditions of employment acts at its peril. Alta 25
Vista Regional Hospital, 357 NLRB 326, 327 (2011); see also Consolidated Printers, Inc.,
305 NLRB 1061, 1067 (1992); Tri-Tech Services, Inc., 340 NLRB 894, 895 (2003); Mike
O’Connor Chevrolet, 209 NLRB 701 (1974), enf. denied on other grounds, 512 F.2d 684 (8th
Cir. 1975).10
30
Nonetheless, where an employer makes a preelection decision to make a change, it does
not violate Section 8(a)(5) merely by implementing that change following the election.
Starcraft Aerospace, Inc., 346 NLRB 1228, 1230 (2006) (citing SGS Control Services, 334
NLRB 858 (2001)); see also Mail Contractors of America, Inc., 346 NLRB 164, 175 (2005)
(“[i]f an employer makes a decision to implement a change before becoming obligated to 35
bargain with the union, it does not violate the Act by its later implementation of that change”);
Optica Lee Borinquen, Inc., 307 NLRB 705, 705 fn. 2 (1992) (finding no violation based on
employer’s unilaterally lengthening employees’ hours of work where decision was
“announced and partially implemented” prior to the union’s petition for an election);

9 I base this finding on the testimony of former tech electronics Raphael Valentin and John
Spenelli, which is consistent with the testimony of Respondent’s witnesses that none of the new
surveillance technicians had begun training for their new position prior to the election.
10 As the Board has explained, “[t]o hold otherwise would allow an employer to box the union in
on future bargaining positions by implementing changes of policy and practice during the period when
objections or determinative challenges to the election are pending.” Mike O’Connor Chevrolet, supra
at 703 (footnotes omitted).
JD(SF)-29-16
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Consolidated Printers, supra at 1067 (no obligation to bargain about postelection layoffs
where employer had determined before the election to work the affected employees through
the election and then implement a layoff); Embossing Printers, Inc., 268 NLRB 710, 716
(1984) (cancellation of bonus after union certified as bargaining representative was lawful
because employer’s decision to cancel bonus was made before union election), enfd. mem. 5
742 F.2d 1456 (1984). To implement such a change, an employer is not required, before the
election, to inform the union or employees of its plans. Mail Contractors of America, supra at
175; Consolidated Printers, supra at 1068.
However, even where a change results from a preelection decision, the employer is 10
required to bargain over the effects of that decision that are not “‘inexorably’” intertwined
with, or the “inevitable consequence” of the decision. NLRB v. Litton Financial Printing, 893
F.2d 1128, 1133 n. 3, 1134 (9th Cir. 1990) (quoting First Nat’l Maintenance, 452 U.S. at 666,
677, fn. 15 (1981), enfg. 286 NLRB 817 (1987), cert. denied in relevant part 498 U.S. 966
(1990); see also Bridon Cordage, 329 NLRB 258, 259 (1999). This is so because in most 15
such situations “[t]here are alternatives that an employer and a union can explore to avoid or
reduce the scope of the [change at issue] without calling into question the employer’s
underlying decision.” Bridon Cordage, supra. Thus, to privilege its postelection
implementation of a preelection decision, an employer “must show not only that the change
resulted directly from that decision, but also that there was no possibility of an alternative 20
change in terms of employment that would have warranted bargaining.” Fresno Bee, 339
NLRB 1214, 1214–15 (2003) (citing Holly Farms Corp. v. NLRB, 48 F.3d 1360, 1368 (4th
Cir. 1995), affd. 517 U.S. 392 (1996)).
The Complaint in this case alleges that the Union, as the former tech electronics’25
exclusive bargaining representative at all times after July 7, was entitled to notice and
opportunity to bargain over Respondent’s decision to move them out of surveillance, thereby
changing their job duties, as well as the effects of that decision. Respondent contends that it
had no duty to notify and bargain with the Union regarding its actions, because they were the
“inevitable result” of its privileged, preelection decisions and therefore did not violate the Act. 30
As set forth below, I agree with Respondent.
The evidence at hearing established—and the General Counsel does not dispute—that
Whiting, at the level of Respondent’s parent company, decided to realign the organizational
and reporting structure for Respondent’s security maintenance work at least 3 months prior to 35
the July 7 election. The record evidence also indicates that, as of July 7, Respondent had
fixed upon and partially implemented a specific course of action whereby it would accomplish
Whiting’s plan while attempting to accommodate the concerns raised by the former tech
electronics.
40
Specifically, after the employees resisted the initial realignment plan, Respondent
reassigned them to report to their old department, rescinded their raises and made
arrangements to replace them in surveillance. While they continued to perform the security
maintenance work, the former tech electronics’ status, as of the election date, was essentially
that of “place holders” for their replacements. Each employee had been given the option of 45
applying for a newly minted surveillance technician position, which would have allowed them
to continue performing the security maintenance work; failing that, they were each slated to
be returned to the facilities department, once their replacement had been selected and trained.
JD(SF)-29-16
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The question therefore is what, if any, alternative options remained open to Respondent in
implementing this plan as of July 7 or, put differently, what effects of the plan were not
“inevitable” as of that date.
The General Counsel argues that, as of the election date, Respondent was obligated to 5
bargain with the Union over how to “implement” its May 26 reorganization decision, in that
Respondent cannot demonstrate that, after the tech electronics expressed displeasure about
reporting to surveillance, its only alternative was to transfer them back to their old reporting
structure with new job duties and replace them in the surveillance department. Changing the
reporting structure for “all” of the tech electronics was not inevitable, argues the General 10
Counsel, because the Union, following July 7, “could have agreed” to a different plan of
action, such as keeping them in surveillance or only moving some of them, and “could have
also set certain conditions, depending on the option chosen.” (GC Br. at 9) In this regard, the
General Counsel compares this case to Goya Foods of Florida, 351 NLRB 94 (2007), in
which an employer implemented a software system postelection that determined employees’15
daily routes, which in turn impacted their compensation. Finding a duty to bargain over the
effects of implementing the system, the Board found that its effect on individual drivers was
not “inevitable” due to the number of variables considered by the program in making route
assignments.
20
Respondent for its part asserts that this case differs from Goya Foods in that here, the
effect of Whiting’s realignment plan on the tech electronics was, in fact, unavoidable as of the
election date: their work had been moved to the surveillance department and, since they had
protested reporting to that department, their job duties were going to be changed unless they
reconsidered and successfully applied for one of the new surveillance technician positions. In 25
Respondent’s words, “[t]here was no room for bargaining which would not have required
MGM Grand to rescind its decision to eliminate engineering employees from the Surveillance
Department.” (R. Br. at 20)
I agree. While it is true that Respondent at some point may have had “feasible 30
alternatives” in terms of how to respond to the tech electronics’ dissatisfaction with their new
reporting structure, it had no bargaining relationship with the Union when, pre-July 7, it chose
to resolve its problem by rescinding their raises, posting for their replacements and
transferring them back to their old department. To find that Respondent, on July 7, became
obligated to revisit this decision, would be inconsistent with the Board’s dictate that 35
employers are privileged to implement their preelection decisions, along with the inevitable
effects of those decisions. For that reason, I find that Respondent was not obligated to
bargain over the decision to have the tech electronics, once they had trained their
replacements, report to the facilities services department.
40
Nor do I find that Respondent, on July 7, had, within its control, any alternative method of
effectuating its partially implemented preelection strategy of job posting, training and
reassignment without in fact revising or rescinding that plan. As of the election date,
Respondent had already offered the security maintenance work to applicants based on the
terms of its job posting and had selected applicants for two of the three available slots. 45
Following the election, it stood by the offer it had made the former tech electronics through its
job posting; there was still one available opening for which they could have applied in order
to continue to perform the security maintenance work (albeit under the supervision of the
JD(SF)-29-16
8
surveillance department). Based on this unrebutted evidence, as of July 7, the only
“alternative” or “variable” over which the Union could have bargained was whether or not
any of the former tech electronics should be awarded that remaining slot. To do so, however,
would have required Respondent to alter the terms of the offer it had already made through its
outstanding job posting.5
For the above reasons, I conclude that Respondent had no duty to notify the Union or
provide it with an opportunity to bargain over its decision to transfer the former tech
electronics to its facilities department, thereby changing their job duties, or over the effects of
this decision.10
CONCLUSIONS OF LAW
1. Respondent MGM Grand Hotel, LLC d/b/a MGM Grand is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act.15
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. At all times since October 28, 2015, the Union had been the certified exclusive
collective-bargaining representative, within the meaning of Section 9(a) of the Act, of an 20
appropriate unit of employees, comprised of:
All full-time and regular part-time locksmiths, water quality,
and tech electronic at Respondent’s facility, excluding all other
employees, including office, clerical, professional, guards, and 25
supervisors as defined in the National Labor Relations Act.
4. Respondent did not violate Section 8(a)(5) and (1) of the Act as alleged in the
complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the 30
following recommended11
ORDER
It is recommended that the complaint be dismissed in its entirety.35
Dated: Washington, D.C. June 27, 2016
Mara-Louise Anzalone40
Administrative Law Judge

11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.