San Pablo Lytton Casino

National Labor Relations Board - Administrative Judge Opinions

Mar 5, 2013

32-CA-025585 (N.L.R.B. Mar. 5, 2013)

JD(SF)–11–13
San Pablo, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
LYTTON RANCHERIA OF CALIFORNIA
d/b/a CASINO SAN PABLO
and Cases 32-CA-025585
32-CA-025665
32-CA-064020
32-CA-086359
UNITED HERE LOCAL 2850
Gary M. Connaughton, Esq.,
Angela Hollowell-Fuentes, Esq.,
for the Acting General Counsel.
Richard J. Curiale, Esq., and
Joseph C. Wilson, Esq.
of San Francisco, California
for the Respondent.
DECISION
Statement of the Case
JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at Oakland,
California, on October 29 through November 1, 2012. On February 4, 2011, Unite Here Local
2850, (the Union) filed the charge in Case 32—CA—025585 alleging that Lytton Rancheria of
California, d/b/a Casino San Pablo (Respondent) committed certain violations of Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act). On April 4, 2011, the Union filed the
charge in Case 32—CA—025665 against Respondent. On September 7, 2011 the Union filed
the charge in Case 32—CA—64020. The charge in Case 32—CA—086359 was filed by the
Union on July 31, 2012. On August 29, 2012, the Regional Director for Region 32 of the
National Labor Relations Board (the Board) issued a complaint and notice of hearing against
Respondent, alleging that Respondent violated Section 8(a)(5) and (1) of the Act. Respondent
filed a timely answer to the complaint, denying all wrongdoing. On October 11, 2012 the
Regional Director issued amendments to the complaint. On October 12, 2012 the Regional
Director issued a complaint in Case 32-CA-086359. The complaints were consolidated on
October 19, 2012.
The parties have been afforded full opportunity to appear, to introduce relevant
evidence, to examine and cross-examine witnesses, and to file briefs. Upon the entire record,
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from my observation of the demeanor of the witnesses,1 and having considered the post-
hearing briefs of the parties, I make the following.
Findings of Fact
I. Jurisdiction
The Respondent, with an office and principal place of business in San Pablo, California,
has been engaged in the operation of a commercial gaming and entertainment establishment,
including a gaming casino, restaurant and cocktail bar (the Casino). In the 12 months prior to
issuance of the complaint, Respondent, in conducting its business operations, derived gross
revenues in excess of $500,000. Further, Respondent received goods and services valued in
excess of $5,000 from points outside the State of California. Accordingly, 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.
The Respondent admits and I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Bargaining
Respondent operates a commercial gaming and entertainment establishment, including
gaming casinos, restaurants, and cocktail bar at a location in San Pablo, California (the Casino).
The Casino employs approximately 470 employees. The Union represents approximately 160
employees at the Casino. The most recent collective-bargaining agreement between
Respondent and the Union was effective by its terms from November 2006 through
November 2009.
Bargaining for a successor agreement began in November 2009. The parties met 14
times for bargaining between November 2009 and January 25, 2011, including a session on
October 18, 2010. During the October 18, 2010 bargaining session, the primary focus of the
bargaining was the issue of healthcare. Present for the Union was its Chief Negotiator, Wei-
Ling Huber. Representing Respondent was Attorney Richard Curiale and Attorney Kathryn
Ogas. Curiale started the session by stating that Respondent had gotten a response from its
healthcare provider. Curiale said that it would be too expensive for Respondent to switch to the
Union’s health plan. Curiale presented a new comprehensive contract proposal which, included
two new healthcare options. The Union did not reject these proposals but expressed its
problems with the employee cost of the healthcare proposals.
The next bargaining session was held on November 3, 2010. At this meeting Curiale
pressed Huber to make a choice on the two healthcare options offered by Respondent. Huber
refused to do so. Huber made a counter-proposal which included a wage proposal.

1 The credibility resolutions herein have been derived from a review of the entire testimonial
record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and
the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those witnesses
testifying in contradiction to the findings herein, their testimony has been discredited, either as
having been in conflict with credited documentary or testimonial evidence or because it was in and
of itself incredible and unworthy of belief.
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The parties next met on November 17, 2010. At this meeting, Curiale proposed a
healthcare plan that was less costly for employees than the two choices offered on October 18.
Respondent would also be offering a $350 signing bonus. Curiale said the Union had to accept
or reject the plan within the next two days. Huber answered that while the new healthcare
proposal was a large improvement over what had been offered previously, the Union could not
accept the plan outside the framework of a complete agreement. Huber added that if
Respondent implemented this healthcare proposal, the Union would not file unfair labor practice
charges as long as Respondent continued to bargain over the rest of the contract. Curiale said
that the healthcare issue needed to be decided that day. Curiale stated that the Casino was
unwilling to talk about money because the Lytton Tribe (that owned the Casino) did not want to
bargain about anything other than healthcare at that time. The Union caucused, and then
Huber answered that she could not give an answer that day or the next day. Huber asked for a
counter-proposal on language issues that were still outstanding. Curiale said he would take the
healthcare offer off the table but he was not sure that he was authorized to do so. Curiale then
ended the meeting.
On November 18, the parties met again for bargaining. The Union accepted the
Respondent’s healthcare plan. Huber stated that the Union was only accepting the healthcare
plan and nothing else. Huber stated that issues such as healthcare eligibility were still up for
negotiations as well as wages. Curiale stated that everything but healthcare was still open.
Huber accepted the healthcare plan but stated she intended to negotiate over every other issue.
She said that in January 2011, when the parties would start negotiating wages again, she would
give Respondent a higher wage proposal. Curiale said he understood.
The parties next met on November 24 but did not discuss wages. The parties met again
on December 16, 2010. During this meeting Curiale stated that Respondent was not going to
move on anything. Curiale said he would get the Union a final proposal.
On January 25, 2011, the parties met again. Curiale started the meeting by distributing
a letter and a proposal he characterized as Respondent’s last, best and final offer. The letter
called on the Union to have its members vote on the last, best and final offer, which proposed a
wage and benefit freeze for the life of the proposed two-year contract. Curiale stated that
Respondent had put all its money into the healthcare plan and that there was nothing more. He
urged the Union to have its membership vote on the last, best and final offer. Huber insisted
that there was still $1.1 to $1.2 million available in new money. She stated that she did not think
Respondent was taking negotiations seriously. The Union then gave Respondent a
comprehensive bargaining proposal which included a wage increase. Curiale rejected the
Union’s proposal and again asked that the Union take the last, best and final offer to its
membership for a vote.
On February 2, 2011, the Union sent an e-mail to Respondent asking to meet for further
negotiations. After not hearing from Curiale, Huber sent another e-mail on February 13. In this
e-mail Huber stated that the Union would submit the Respondent’s final offer to the employees
but, that the Union needed to clarify the last, best and final offer. Curiale responded by e-mail
that there was no need to meet and that he would send an errata sheet with corrections to the
final offer.
On February 25 Huber received an e-mail from Curiale clarifying certain aspects of
Respondent’s final offer. On March 7, Huber wrote Curiale and raised questions concerning the
final offer and requested that the parties meet.
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On May 20 the Union submitted Respondent’s last best and final offer to its membership
for a ratification vote. The offer was rejected by the union membership. Huber then contacted
Curiale to resume bargaining.
The parties then meet on June 24. Huber stated that she wanted to talk about
Respondent’s last, best, and final offer and the Union’s reaction to it. She also wanted to talk
about her costing of the proposal, a new Union proposal and the cost of the Union’s new
proposal. Curiale said that negotiations were over and that he would focus on litigation. Huber
had a new proposal to offer, but Curiale left the meeting before she could present it.
On June 27, Curiale sent Huber a letter stating that the parties were at impasse and that
further negotiations would be futile. On July 9, Huber sent Curiale a letter which contained the
Union’s newest wage proposals. Respondent did not respond to this letter.
1. The Section 8(a)(1) allegations
On Friday, December 17, 2010, a group of employees presented a petition about
collective bargaining to Respondent’s managers. On the following Wednesday or Thursday,
James Grant, Respondent’s director of guest safety, called Eddie LeroyJohnson, gaming floor
person, at home. Grant told Johnson that what the employees had done was not against the
rules but that he would like to know in advance of any planned Union activity so that
Respondent could schedule it so that the employees did not inundate a particular manager.
Grant admitted calling Johnson about the petition and telling him that the employees could do
what they wanted as long as they followed proper guidelines.
On the morning of January 1, 2011, bargaining unit employee Nelson Yip was working
as a cocktail server in the Casino. That morning Yip found a $100 bill on the floor and put that
bill in with his cash tray. At about 2 a.m. that morning Yip was called into an investigatory
meeting by Peter Demarest, security manager and Buddy Jah, security supervisor. Manager
Felipe Guzman questioned Yip about whether he intended to keep the money. Guzman said
that he was going to do an investigation and told Yip not to tell anybody and not to contact
anyone about the investigation. Guzman admitted that he told Yip not to talk to any employees
about the investigation.
In July 2011, several of Respondent’s employees demonstrated in support of an
employee who had been terminated. The next day employee Isadoro Saravia Ramos was
called into a meeting with human resources manager, Chris Mavroudis and Sous Chef Jaime
Menjivar. Menjivar acted as an interpreter as Ramos only spoke Spanish. Mavroudis asked
what had happened the day before. Ramos said that the Union members were there to support
an employee who wanted his job back, Mavroudis stated that he was concerned about the
employees’ safety and that he was worried that the Union could bring in people to make a
ruckus. Ramos answered that as Union members the employees protested legally. Mavroudis
then questioned what else the Union was going to do. Ramos did not answer that question.
The complaint alleges and Respondent admits that Respondent maintained the following
rules in its employee handbook:
(a) Unacceptable Behavior
Gossiping about other Team Members (including supervisors, managers, directors,
etc.)
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(b) Team Member Conduct and Work Rules
The following are examples of rule violations that may result in disciplinary action, up
to and including separation of employment:
Insubordination or other disrespectful conduct (including failure to cooperate fully
with Security, supervisors and managers’
(c) Solicitation, Distribution and Bulletin Boards
Team Members may not solicit or distribute literature in the workplace at any time for
any purpose.
(d) Team Member Conduct and Work Rules
The following are examples of rule violations that may result in disciplinary action, up
to and including separation of employment:
Making false, fraudulent or malicious statements to or about a Team Member, a
guest or San Pablo Casino.
(e) Access
Team Members are not permitted in the back of the house areas more than thirty
(30) minutes prior to the beginning of their shift or longer than thirty (30) minutes
following the end of their shift, except under the following circumstances:
1. To conduct business with Human Resources;
2. Pre-arranged training sessions or orientations;
3. With the approval of a director, manager or supervisor.
Respondent stipulated that the handbook contained these provisions from August 2010 until
about May 2011, when the employee handbook was rewritten and redistributed. The new
handbook does not contain these provisions.
2. The alleged changes to the Union’s access to the casino
The expired collective-bargaining agreement contains the following provision regarding Union
access to the Casino:
Properly authorized Representatives of the Union shall be permitted to enter the
Employer’s premises through the team member entrance in order to investigate the
status of all employees and to investigate the conditions to see that the Agreement is
being enforced. Upon entering the premises, Union Representatives shall notify the
management that they are on the premises. In the event it is necessary for the Union
Representative to visit the premise outside the normal business hours (for example on
the graveyard shift) the Representative shall provide management with reasonable
advance notice of the visit.
It is understood that the Union Representative shall not conduct business on the Casino
floor other than to advise an employee that they are on the premises. At all times, Union
Representatives shall conduct themselves in such a manner as to ensure that there is
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no unreasonable interruption or interference with the duties of an employee or the
Employer’s operation.
During the period 2004 through December 2010, the union representatives entered
through the front entrance of the Casino. Union representatives checked in at the security
station when they entered the Casino and were escorted by a security officer to the employee
cafeteria in the “back of the house.” According to the Union’s witnesses they were not required
to have an escort to move around the back of the house.
On December 17, 2010, Union Rrepresentatives Andrew Dadko and Yulisa Elenes went
to the Casino to meet with a group of off-duty employees. When Dadko and Elenes entered the
Casino, they signed in at the security desk and obtained their visitor badges and were escorted
to the employee cafeteria. None of the employees were in the cafeteria. Elenes called one of
the employees and learned that the employees were on the second floor. Dadko and Elenes
proceeded to the second floor employee breakroom. On the way, they passed by the security
guard. Dadko and Elenes began a discussion with several employees. James Grant,
Respondent’s director of guest safety, entered the breakroom and asked Dadko and Elenes to
step out of the room and talk to him. Dadko and Elenes refused this request. After several
requests to go with Grant, Dadko and Ellenes finally left the breakroom and returned to the
employee cafeteria.
Grant later spoke with Dadko and Ellenes in the cafeteria. Grant told them they had to
stay in the cafeteria. Grant asked if they would stay in the cafeteria and Dadko answered “we’ll
see.” Thereafter, Dadko and Ellenes left after returning their visitor badges.
On December 21, Curiale sent Huber a letter concerning Dadko’s visit of December 17.
Curiale stated that union representatives were barred from entering the Casino until the parties
had a discussion regarding Union conduct of visits. Curiale also threatened to have Dadko
arrested if he entered the Casino again.
On December 27, Huber sent Curiale an e-mail stating that she wished to meet with
Respondent. She also stated that Respondent could not bar Dadko from its premises. Curiale
responded that same day, stating that he would be out of the country and would not be able to
meet until January 11, 12 or 13. Huber responded that the date was too far off and that
someone else should appear for Respondent. Curiale responded that there was nothing he
could do.
On January 11, 2011, Huber sent Curiale an e-mail setting forth the Union’s account of
the December 17 incident. She denied that Dadko and Elenes had evaded security and denied
that Dadko was intimidating. When Huber met with Curiale on January 11, Curiale stated that
the Union representatives needed to have an escort to move from one place to another in the
Casino. Curiale stated that the Union would have to notify the Casino in advance of a visit; the
Union representatives would have to ask for an escort to move from one place to another; the
Union would have to agree to Respondent’s 30-minute rule; and that the Union agree not to
assign Dadko to the Casino.
After a caucus, Huber said the Union would agree to advance notice and to getting an
escort to move around the Casino but would not agree to the 30-minute rule. She also said the
Union could not agree to barring Dadko from the Casino.
On January 18 Curiale sent Huber an e-mail about the access issue. Curiale stated that
he was not barring Dadko from participating as a union representative, but only barring him from
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the Casino. Curiale stated he would allow other union representatives to access the Casino if
they advised Respondent in advance; they sign in; agree to be escorted to the place they wish
to go; they agree to ask for an escort to go to another part of the Casino; and they agree to ask
for an escort when they leave the Casino. Further, Curiale asked the Union to agree that its
meetings would not require employees to enter 30 minutes before their shift or remain 30
minutes after their shift. Huber stated that she would discuss the proposal with her team.
Huber responded by e-mail on January 25, agreeing that the Union would advise
Respondent in advance of a visit; they would sign in; they would ask for an escort; they would
ask for an escort to move from one place to another, and would ask for an escort to leave the
Casino.
On January 25, 2011 the parties met at Respondent’s training center. As this property is
separate from the Casino, Dadko was permitted to attend.
On February 2, 2011, Huber sent Curiale an e-mail, agreeing to advance notice and
escort procedures but rejecting the 30-minute rule.
On March 10, 2011, Union representative Max Alper called in advance and then
checked in at the security desk. After being escorted to the employee cafeteria, Alper asked to
be escorted to where the employee schedules were posted. The security guard stated that he
had to check with management. Mavroudis came to the cafeteria and told Alper that he could
not go to where the schedules were posted. Mavroudis offered to e-mail Alper the schedules.
On March 21, 2011 Alper called in advance and was escorted to the employee cafeteria.
Alper asked to be escorted to the employee break room. Security supervisor Buddy Jah said he
would have to check with Mavroudis. Jah returned and said that Alper could not go to the break
room. When Alper inquired as to why he could not go, Jah said that was what he had been told.
On March 24, 2011 Alper called in advance and checked in with security when he
arrived. Alper was met by Mavroudis and Grant. Mavroudis asked the purpose of the visit.
Alper replied that he never in the past had to provide the purpose of the visit. Mavroudis stated
that if Alper did not provide the purpose of the visit, he would not be allowed to enter the Casino.
Alper stated that he believed this was an unfair labor practice. Mavroudis directed Alper to call
the Casino’s attorney if he had any more questions.
On March 30, 2011 Alper called Mavroudis to inform him that he would be visiting the
Casino that day. Mavroudis asked the purpose of the visit. Alper answered that he did not
believe that was a proper question. Alper informed Mavroudis that he had a meeting with an
employee. Mavroudis asked the name of the employee and how long the meeting would last.
Alper said he would not answer those questions. Mavroudis stated that if Alper did not tell him
the purpose of the meeting, the name of the employee and the length of the meeting, Alper
would be denied access. Alper said he believed this was an unfair labor practice.
On March 31, 2011 Alper and C-en Yu, a Union intern, arrived at the facility. They
planned to meet with employee Isadoro Ramos. Alper had called earlier and left a message
that he was going to visit. Alper and Yu checked in at the security desk and were told to wait.
Security Supervisor Alex Lanier told Alper that he had to speak with Mavroudis and that
Mavroudis would not be in until 9 a.m. Alper said that he had called the day before and spoke
with Mavroudis. Lanier said that he had spoken with Mavroudis and was just following orders.
Alper and Yu gave back their visitor badges and went outside. Once outside, Alper called
Ramos and told him that he was at the front entrance. Ramos was in uniform but not scheduled
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to work for 20 minutes. When Ramos arrived at the security desk, Alper stepped back inside to
talk to him.
Lanier told Alper and Yu that they had to leave. Alper said that what Lanier was doing
was unlawful. Lanier told Ramos to return to the Casino. Alper told Lanier that Ramos wanted
to meet with the Union. Ramos’ supervisor arrived and Ramos left. Lanier then told Alper that
he had to leave and that if he did not, Lanier would call the police. Alper said that would be
unlawful. Alper and Yu then walked outside and waited for the police.
When the police officer arrived he spoke with Lanier. Then the police officer told Alper
and Yu that they had to leave and if they did not leave, Lanier would make a citizen’s arrest.
Alper and Yu left the property. Before they left, Lanier gave them a form letter stating that they
were banned from the Casino.
On January 31, 2012, Curiale sent an e-mail to Alper stating that Union Representative
Jessica Medina was barred from the Respondent’s property. Medina was barred based on an
incident which occurred on December 7, 2011. A grievance meeting was held on December 7
at Respondent’s training center, separate and apart from the Casino. Alper and Medina
attended the meeting on behalf of the Union. After the meeting was over, Alper attempted to
talk with Mavroudis. Grant walked over and Mavroudis walked away. Grant told Alper and
Medina that they needed to leave. Grant asked Alper and Medina to leave four or five times
before they finally left.
3. The information requests
The complaint alleges and Respondent admits that on the following dates, the Union
requested in writing that Respondent furnish it with the following information:
(a) January 5, 2011
A copy of [the] security tape that shows the incident concerning employee Nelson
Yip who was terminated for allegedly failing to turn in money that he found on the
Casino floor.
(b) January 19, February 2, and March 7, 2011:
The method for calculating employee turnover and turnover rates for each year from
2005 to 2010.
(c) February 2 and 13, and March 7, 2011:
A copy of the security and badge procedures/requirements. . . . imposed by the City
of San Pablo.
(d) February 13 and March 7, 2011:
(1) The total tip and service charge income for each worker for the entire calendar
year 2010.
(2) All reports, worksheets, filings and other documents related to the December
2010 IRS tip rate and the IRS tips reported for all bargaining unit employees,
including but not limited to gaming techs, gaming floor workers, bartenders,
barbacks, servers, and porters.
(e) March 7, 2011:
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(1) In order to access the impact of the proposal, please provide the total hours paid
for Easter in 2010 and 2009 and the sign-in sheets or timecards for Memorial
Day 2010 and 2009.
(2) Please provide daily sign in [sic] sheets or timecards for the period between
November 2010 and February 2011, so we can assess how this change in
benefits eligibility would impact employees,
(3) Job titles of four named employees (Melody Navarette Denate; Sachin Batajoo;
Clayton Cox; Victor M. Figueroa) if they are bargaining unit employees.
(4) Please also provide the list of employees with their job titles and hire dates, who
were enrolled in both medical and pension during the period immediately before
January 2011.
(f) March 11, 2011:
(1) Schedules for all departments for the same period (December 1, 2010 through
February 10, 2011).
(2) Copy of Nelson Yip’s sales receipts for New Year’s Day between 1a.m. and the
end of his shift.
(3) An updated roster of employees with names, addresses, phone numbers,
classifications, and date of hire.
(g) June15, 2011:
1. Information regarding a grievance involving employee Peung Phontavy;
2. Employee personnel file.
3. All surveillance tapes related to the incident.
4. All paperwork, documents e-mails, memos, notes and investigations related to all
incidents related to listening, following instructions, timing and plate production
and food quality from the past 12 months.
(h) June 15, 2011:
1. Information regarding a grievance involving employee Patricia Gomes
2. Schedules for all cocktail servers for the past 12 months
3. Section Assignments for al cocktail servers for the past 12 months.
(i) August 25, 2011:
1. Information regarding the same grievance involving employee Patricia Gomes:
2. Schedules for all cocktail servers for the past 12 months.
3. Section Assignments for all cocktail servers for the past 12 months.
4. Cash out slips for all cocktail servers for the past 12 months.
(j) July 6 and July 13, 2011:
1. Information regarding a grievance involving employee Nirmani Kalakheti:
2. All paperwork, documents, e-mails, memos, notes and investigations related to
the separation.
3. All paperwork, documents, e-mails, memos notes and investigation related to all
bereavement leaves from the past 3 years.
4. All paperwork, documents, e-mails, memos notes and investigation related to all
personal leaves from the past 3 years.
(k) July 13 and 14, 2011:
Schedules for all unit employees for the months of June and July 2011.
(l) August 25, 2011:
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1. Information regarding sonority-based job bidding and the hiring of part=time
employees:
2. Schedules for all departments with Union represented employees for the past 12
months.
(m)August 25, 2011:
1. Information regarding a grievance about vacation pay:
2. A list of employees who took vacation in the past 3 years, including name,
classification (job title) weekly base rate, average weekly pay for all weeks
worked by the employee during the year preceding the vacation, amount paid for
vacation.
(n) August 25, 2011:
1. Information regarding the hiring of part-time employees;
2. A list of all terminated employees in the past 12 months, including name, hire
dates, termination dates, classification (job title) and status (PT or FT).
3. A list of all current employees.
Respondent had a security taperecording regarding the termination of employee Nelson
Yip. Dadko requested to see the taperecording in support of a grievance concerning the
termination - Curiale and Mavroudis refused to turn over the tape.
In January, February and March 2011, the Union requested the method for calculating
employee and turnover rates for each year from 2005 to 2010. That information was not turned
over to the Union until February 2012.
The Union requested the security and badge procedures/requirements imposed by the
City of San Pablo. Respondent is an Indian Casino and there are no City of San Pablo
procedures or requirements.
The Union requested information relating to the IRS’ tip rate. Respondent turned over
the tip rate negotiated with the IRS but did not turn over the rest of the requested information.
The Union requested information regarding holiday pay. Respondent provided some but
not all of the information requested on June 15. With respect to the Phontavy grievance, the
Respondent provided the information that it had. Respondent did not provide information
regarding the Gomes grievance. Respondent provided the information regarding the Kalakheti
grievance. Respondent did not supply the schedules for employees for June and July 2011.
Further, Respondent did not furnish the schedules for all departments that were requested in
August 2011. Respondent did not furnish the information requested about vacation pay.
Finally, Respondent did not furnish the information requested about the hiring of part-time
employees.
4. The alleged unilateral changes
In June 2011, Respondent distributed to part-time employees a memorandum which,
among other things announced that beginning on July 1, 2011, these employees would be
receiving new benefits, including holiday pay and additional days off without pay. After
July 1, 2011, part-time employees began receiving holiday pay for the first time. Respondent
did not notify the Union or afford the Union the opportunity to bargain over this matter.
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Respondent did not provide health benefits from March to September 2011, to
bargaining unit employees Isabel Garrido, Al Balbuena, Rodolfo Trinidad and Ali Challal. These
employees worked 16 shifts a month during that period. The collective-bargaining agreement
states that Respondent must provide healthcare benefits to employees who work more than 16
shifts a month in the month preceding the month in which contributions are due. When
Respondent was notified by the Union of its failure to provide benefits for these employees,
Respondent reduced the number of shifts to 15 for these employees. Respondent contends
that it never provided such benefits for part-time employees.
B. Respondent’s Defense
Respondent contends that impasse was reached after the Union rejected its last, best
and final offer. Respondent contends that the Union brought a barrage of information requests
and filed grievances to harass Respondent. Respondent contends that its access rules and
policies are for a legitimate business reason.
III. Analysis and Conclusions
A. The Respondent Was Obligated to Bargain
The general rule is that when parties are engaged in negotiations for a new agreement
an employer’s obligation to refrain from unilateral changes encompasses a duty to refrain from
implementation unless and until an overall impasse has been reached on bargaining for the
agreement as a whole. Pleasantview Nursing Home, 335 NLRB 96 (2001); citing Bottom Line
Enterprises, 302 NLRB 373 (1991). In Bottom Line Enterprise, the Board recognized only two
exceptions to that general rule: “when a union engages in bargaining delay tactics and “when
economic exigencies compel prompt action”, 335 NLRB at 374.
A genuine impasse exists when there is no realistic possibility that continuation of
negotiations would be “fruitful” and both parties believe that they are “at the end of their rope.”
Pratt Industries, 358 NLRB No. 52 at 6 (2012). Whether a bargaining impasse exists is a matter
of judgment, and bargaining history, the good faith of the parties in negotiations, the length of
the negotiations . . ., [t]he importance of the issue or issues as to which there is disagreement,
and the contemporaneous understanding to the parties as to the state of negotiations are all
relevant factors to be considered in deciding whether an impasse in bargaining existed. Taft
Broadcasting Co., 163 NLRB 475, 478. Since impasse is a defense to allegations of bad-faith
bargaining, it must be proven by the party asserting it and it will not be lightly inferred.
Sacramento Union, 291 NLRB 552, 556 (1988).
In the instant case, the parties bargained for 14 sessions from November 2009 to
January 2011. It was not until November 18, 2010 that the parties reached agreement on the
healthcare plan. At that time the Union told Respondent that it was only agreeing to the
healthcare plan and that all other issues were still on the table. During the negotiations on
November 24 and December 16, 2011, there was no substantive discussion of wages. The
Union had come to the January 25, 2011 session with the intent to bargain over wages and
benefits. Respondent had determined that it would demand a wage freeze and that it would not
move from that position. Respondent had determined that the Union would never agree to that
wage proposal and thus Respondent offered its last, best and final offer. Respondent assumed
the parties were at impasse. The Union, on the other hand, did not believe the Parties were at
impasse and wished to negotiate over wages and benefits. Respondent refused to meet and
bargain. Finally, on May 20, the Union placed the last best and final offer to a membership vote.
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The last best and final offer was rejected. The Union attempted to bargain and Respondent
refused.
Impasse over a single issue may create an overall bargaining impasse that privileges
unilateral action if that issue is of such overriding importance to the parties that the impasse on
that issue frustrates the progress of further negotiations. Camet Co.,331 NLRB 1084, 1087
(2000). The Party contending that an impasse on a single critical issue justified its declaration
of impasse must demonstrate three things:
[F]irst the actual existence of a good-faith bargaining impasse; second, that the issue as
to which the parties are at impasse is a critical issue; third, that the impasse on the
critical issue led to a breakdown in the overall negotiations – in short, that there can be
no progress on any aspect of the negotiations until the impasse relating to the critical
issue is resolved. Richmond Electrical 348 NLRB 1001, 1003 (2006) citing Calmat
Co.,331 NLRB at 1097.
Here the Parties put off negotiations on wages until the issue of healthcare was resolved. In
January 2011, when the Union was prepared to bargain over wages and benefits, the
Respondent made its last, best and final offer. While the Union was willing to negotiate,
Respondent refused to negotiate any further. While the parties may have been deadlocked on
wages, Respondent prematurely declared an impasse, while the Union was still negotiating.
I find that Respondent declared an impasse prior to reaching impasse with the Union.
As stated above, the fact that Respondent believed that the Union would never agree to
Respondent’s wage proposals does not establish an impasse. In light of the limited bargaining
about wages and the Union’s willingness to continue bargaining, I cannot find the parties had
reached a deadlock regarding this issue.
When the Union members rejected Respondent’s last, best and final offer, the parties
were still not at impasse. The Union clearly indicated it was willing to bargain. However, when
the parties met on June 24, Respondent refused to listen to any Union proposals.
1. The information requests
The general rule is that an employer has a statutory obligation to supply requested
relevant information which is reasonably necessary to the exclusive bargaining representative’s
performance of its responsibilities. Boise Cascade Corp.,279 NLRB 429 (1986).
It is well-established that a union is entitled to whatever information is relevant and
necessary to its representation of the bargaining unit, not only for collective bargaining but for
grievance adjustment and contract administration. NLRB v. Acme Industrial Co., 385 U.S. 432,
435-36 (1967); SBC Midwest, 346 NLRB 62, 64 (2005). In Detroit Newspaper Agency,317
NLRB 1071, 1072 (1995) , citing General Electric, 290 NLRB 1138, at 1147, the Board held that
“Once a union has made a good faith request for information, the Employer must provide
relevant information promptly, in useful form.” The test used by the Board for determining
whether a Respondent has supplied the information in a reasonable amount of time is that set
forth in West Penn Power Co., 339 NLRB 587 (2003( enfd. In pertinent part 349 F. 3d 233
(4th Cir. 2005) Accord: Earthgrains Co., 349 NLRB 389:
In determining whether an Employer has unlawfully delayed responding to an
information request, the Board considers the totality of the circumstances surrounding
the incident. Indeed, it is well established that duty to furnish requested information
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cannot be defined in terms of a per se rule. What is required is a reasonable good faith
effort to respond to the request as promptly as circumstances allow. In evaluating the
promptness of the response, the Board will consider the complexity and extent of
information sought, its availability, and the difficulty in retrieving the information.
Respondent contends that the Union filed grievances and information requests to harass
Respondent. However the evidence establishes that the information sought was reasonably
related to the Union grievances.
The taperecording regarding the termination of employee Nelson Yip would be relevant
to a grievance concerning the termination. Respondent did not turn over the taperecording
because it believed it was irrelevant. However, Respondent could not unilaterally make that
determination. The information concerning employee turnover was not given to the Union for
over a year. Respondent does not contend that the information was not provided due to a
mistake. The Union requested information regarding the requirements of the City of San Pablo.
However, no such requirements exist. Thus, Respondent had no information to provide.
The Union requested documents related to the IRS’ tip rate. Respondent did not provide
the requested documents. The Union sought information in regard to bargaining over holiday
pay and medical benefits. Respondent did not provide the information because it felt that it was
being harassed. The Union sought information regarding employee schedules. The Union
sought such information to investigate a potential grievance. Further, the Union sought an
updated roster of employees. Respondent failed to furnish such information.
The Union requested information regarding a grievance involving employee Peung
Phontavy. Respondent only provided what it deemed relevant and did not provide all the
information. Respondent could not unilaterally decide what is relevant. The Union sought
information regarding the grievance of employee Patricia Gomes. Respondent did not provide
the information, allegedly, because it provided an e-mail allegedly establishing that Gomes was
not discriminated against. Again, Respondent cannot unilaterally determine the relevance of the
information sought.
The Union sought information regarding the grievance of employee Kalakheti.
Respondent again unilaterally decided that the information was not relevant. The Union
requested the schedules for the months of June and July 2011. Such information is
presumptively relevant. Respondent refused to provide the information unless the Union
alleged a violation of the contract. The Union could request the information to determine
whether or not to file a grievance.
The Union sought information regarding seniority-based job bidding in support of a
grievance. Respondent did not supply this information. The Union sought information regarding
the payment of vacation pay for grievance purposes. Respondent did not provide this
information.
The Union sought information regarding a grievance concerning the hiring of part-time
rather than full-time employees. Respondent determined that there was no merit to the
grievance and did not furnish the information. Respondent could not unilaterally make that
determination.
In summary, after January 31, 2011, Respondent did not provide information because it
believed the requests were made for harassment purposes.
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2. The unilateral changes
Respondent issued a memorandum on June 8, 2011, granting part-time employees
holiday pay and additional days off without pay. Respondent did not notify or bargain with the
Union about these changes.
Under the Act, before an employer may effect a material and substantial changes in the
employees’ wages, hours and other conditions of employment, it must notify the employees’
collective-bargaining representative and afford the representative an opportunity to bargain
about the change. NLRB v. Katz, 369 U.S. 736 (1962); Daily News of Los Angeles, 315 NLRB
1236, 1237-1238 (1994) enfd. 73 F.3d 406 (D.C. Cir. 1996). The notice given to the union must
be sufficient to allow a meaningful chance to bargain before the change is implemented. Mercy
Hospital of Buffalo, 311 NLRB 869. 873 (1993); Intersystems Design Corp.,278 NLRB 759
(1986). Accordingly, I find that Respondent violated Section 8(a)(5) and (1) by instituting these
changes.
During the period from March to September 2011, four employees who were classified
as part-time employees worked 16 or more shifts per month. Respondent contends that these
employees were part-time employees and therefore, not eligible for health benefits. The
Agreement provided that Respondent provide healthcare benefits to employees who work more
than 16 shifts a month, in the month preceding the month in which contributions are due. When
the Union questioned the status of these employees, Respondent unilaterally reduced the
number of shifts worked by the employees. Respondent did so without notice to or bargaining
with the Union.
3. Union access
Board law is well-settled that a union’s access to represent employees on an employer’s
premises is a mandatory subject of bargaining. American Commercial Lines, 291 NLRB 1066,
1072 (1988). In addition, a union access provision in a collective-bargaining agreement is a
term and condition of employment that survives the agreement’s expiration. Turtle Bay Resorts,
353 NLRB 1242 (2009).
Here the Respondent had a legitimate rule requiring an escort to move around the
Casino. However, Respondent unilaterally required the Union to notify it of the purpose of the
meeting. Respondent unilaterally conditioned access on the Union having a scheduled meeting
with an employee.
C. The 8(a)(1) Allegations - Interrogation
The Board's test for determining whether interrogation of employees concerning their
union activities or the union activities of other employees is set out in Rossmore House, 269
NLRB 1176, 1177 (1984):
Whether under all of the circumstances the interrogation reasonably tends to restrain,
coerce, or interfere with rights guaranteed by the Act.
The Board has said that a totality of the circumstances test must be applied, even when the
interrogation is directed to unit members whose union sympathies are unknown to the employer.
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). Some of the considerations taken into
account by the Board in determining whether, under the totality of the circumstances, the
interrogation was coercive include: Whether the employee interrogated was an open and active
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union supporter; whether there is a history of employer hostility towards or discrimination
against union supporters, whether the questions were general and non-threatening, and
whether the management official doing the questioning had a casual and friendly relationship
with the employee being questioned. Sunnyvale Medical Clinic, supra at 1218.
I find that the interrogation of employee Isadoro Ramos, violated Section 8(a)(1) of the
Act. Here the employees had engaged in protected action and the questions pertaining
to the Union’s future action tended to restrain and coerce employees in violation of
Section 8(a)(1). I find by this conduct, in the context of unlawful suspensions, Respondent
violated Section 8(a)(1) of the Act.
Security manager Felipe Guzman instructed employee Nelson Yip not to talk to anyone about
the investigation affecting his appointment. This action violated the Act because it tended to
interfere with Yip’s right to concertedly act with other employees concerning his possible
discipline. Fresenius USA Mfg., 358 NLRB No. 138 at fn.1 (2012); Mobil Oil Exploration &
Producing, U.S., 325 NLRB 176, 178 (1997).
Conclusions of Law
1. Respondent is an employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the
Union.
4. Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally establishing
rules that prohibit union access to the Casino.
5. Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally announcing and
implementing new benefits for part-time employees.
6. Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide
contractual health benefits for four unit employees.
7. Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide relevant
information necessary for bargaining and grievance handling.
8. Respondent violated Section 8(a)(1) of the Act by coercively interrogating an
employee.
9. Respondent violated Section 8(a)(1) of the Act by telling an employee not to discuss
his investigation with other employees.
10. Respondent’s conduct above is an unfair labor practice affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
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Remedy
Having found Respondent engaged in certain unfair labor practices, I shall recommend
that it be ordered to cease and desist therefrom and take certain affirmative action to effectuate
the purposes and policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.2
ORDER
The Respondent, Lytton Rancheria of California d/b/a Casino San Pablo, its officers,
agents, successors, and assigns shall
1. Cease and desist from
(a) Refusing to bargain collectively with Unite Here Local 2850.
(b) Unilaterally changing rules regarding Union access to the Casino.
(c) Unilaterally announcing and implementing new benefits for part-time employees.
(d) Unilaterally refusing to make benefit payments for certain employees.
(e) Refusing to furnish relevant information to the Union.
(f) Coercively interrogating any employee about union support or union activities.
(g) Telling employees not to discuss their investigations with other employees.
(h) 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) Upon request, meet and bargain with the Union as the exclusive collective-
bargaining representative of its employees in the appropriate bargaining unit described below
with respect to rates of pay, hours of employment, and other terms and conditions, and if an
understanding is reached, embody such understanding in a signed agreement. The appropriate
bargaining unit is:
All full-time and regular part-time food and beverage, maintenance, and
housekeeping employees, including barbacks, bartenders, broiler server,
casino servers, lead food servers, American line cooks, Asian Line cooks,
broiler porters, casino porters, concession workers, hosts/hostesses, lead
cook, lead utility worker, housekeepers, lead housekeepers, slot technicians
and gaming floor persons employed by Respondent at its San Pablo,

2 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.
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California gaming establishment; excluding all other employees, guards, and
supervisors, as defined by the Act.
(b) On request by the Union, rescind any unilateral changes it has implemented in its
employees’ terms and conditions of employment.
(c) Make whole Al Balbuena, Isabel Garriddo, Redolfo Trinidad, and Ali Challal, for
any loss of earnings and other benefits suffered as a result of the discrimination against them by
not receiving contractual health benefits starting in March 2011 to September 2011, including,
but not limited to, reimbursing them for any medical expenses or costs they incurred as a result
of not receiving their contractual health insurance for that period.
(d) Preserve and, on request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its facility in San Pablo,
California copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 32, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the 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, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since June 2010.
(f) Within 21 days after service by the Region, file with the Regional Director for
Region 32, a sworn certification of a responsible official on a form provided by Region 32
attesting to the steps the Respondent has taken to comply herewith.
Dated, Washington, D.C., March 5, 2013.
____________________
Jay R. Pollack
Administrative Law Judge

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 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.”
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
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to meet and bargain with the Union as the exclusive collective-bargaining
representative of our employees in the appropriate bargaining unit with respect to rates of pay,
hours of employment, and other terms and conditions of employment.
WE WILL NOT unilaterally change rules regarding Union access to the Casino.
WE WILL NOT unilaterally announce or implement new benefits for part-time employees.
WE WILL NOT unilaterally refuse to make benefit payments for certain employees.
WE WILL NOT refuse to furnish relevant information requested by the Union for collective
bargaining or grievance handling purposes.
WE WILL NOT coercively interrogate employees about union support or union activities
WE WILL NOT tell employees not to discuss their investigations with other employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL upon request, meet and bargain with the Union as the exclusive collective-bargaining
representative of its employees in the appropriate bargaining unit described below with respect
to rates of pay, hours of employment, and other terms and conditions, and if an understanding is
reached, embody such understanding in a signed agreement. The appropriate bargaining unit
is:
All full-time and regular part-time food and beverage, maintenance, and housekeeping
employees, including barbacks, bartenders, broiler server, casino servers, lead food
servers, American line cooks, Asian Line cooks, broiler porters, casino porters,
concession workers, hosts/hostesses, lead cook, lead utility worker, housekeepers, lead
housekeepers, slot technicians and gaming floor persons employed by Respondent at its
San Pablo, California gaming establishment; excluding all other employees, guards, and
supervisors, as defined by the Act.
WE WILL on request by the Union, rescind any unilateral changes we have implemented in our
employees’ terms and conditions of employment.
WE WILL, make whole Al Balbuena, Isabel Garriddo, Redolfo Trinidad, and Ali Challal, for any
loss of earnings and other benefits as a result of not receiving contractual health benefits
starting in March 2011 to September 2011, including, but not limited to, reimbursing them for
any medical expenses or costs they incurred as a result of not receiving their contractual health
insurance for that period.
WE WILL furnish relevant information requested by the Union for collective bargaining or
grievance handling purposes.
LYTTON RANCHERIA OF CALIFORNIA d/b/a
CASINO SAN PABLO
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1301 Clay Street, Federal Building, Room 300N, Oakland, CA 94612-5211
(510) 637-3300, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (510) 637-3270.
THIS NOTICE AND THE DECISION IN THIS MATTER ARE PUBLIC DOCUMENTS
ANY INTERESTED INDIVIDUAL WHO WISHES TO REQUEST A COPY OF THIS NOTICE OR A COMPLETE
COPY OF THE DECISION OF WHICH THIS NOTICE IS A PART MAY DO SO BY CONTACTING THE BOARD'S
OFFICES AT THE ADDRESS AND TELEPHONE NUMBER APPEARING IMMEDIATELY ABOVE.