Caesars Palace

National Labor Relations Board - Board Decisions

Apr 1, 1974

209 N.L.R.B. 950 (N.L.R.B. 1974)

0
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Desert Palace, Inc., d /b/a Caesars Palace and Local
151, International Union of Police and Protection
Employees , I.W.A., Petitioner . Case 31-UC-47
April 1, 1974
DECISION AND ORDER CLARIFYING
CERTIFICATION
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a petition for clarification of unit duly filed
by Local 151, International Union of Police and
Protection Employees, I.W.A., herein called Local
151 or Petitioner, on July 19, 1973, and amended on
July 24, 1973, a hearing was held on August 23, 1973,
before Hearing Officer Susan B. Kunk of the
National Labor Relations Board. On October 1,
1973, the Regional Director for Region 31 issued an
order transferring the case to the Board for decision.
Thereafter, briefs were timely filed by the Petitioner,
and by the Employer, Desert Palace, Inc., d/b/a
Caesars Palace.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
The petition herein filed seeks clarification of a
unit of the Employer's security employees at its Las
Vegas, Nevada, operation, which unit was certified
by the Board in 1970 in behalf of the Petitioner. The
Petitioner requests a clarification which would find
that the classification of plainclothes investigators
should be added, without an election, to those
already included in the unit.' The Petitioner, in its
brief, argues that when the unit herein was first
certified the Board's decision in the Pinkerton's2 case
forbade the inclusion of employees similar to those in
question in a guard unit, but that since that time the
Board has reversed itself and now accepts them as
being guards within the meaning of the Act.3
The Employer contends, however, that, inasmuch
as part of the duties of the plainclothes investigators
is to investigate alleged misconduct of uniformed
guards, to include plainclothes investigators in the
guard unit would create a conflict of interest which
Congress attempted to avoid by prohibiting the
t "Included - All security officers employed by Desert Palace , Inc., d/b/a
Caesar's Palace, at Las Vegas, Nevada. Excluded All other employees,
office clerical employees and supervisors as defined in the Act "
2 Pinkerton's National Detective Agency, Inc, 124 NLRB 1076
inclusion of nonguard employees in a unit of guards.
Alternatively, the Employer contends that, even if we
find the Act does not prohibit the accretion of
investigators to the existing unit, the fact that
investigators have been employed full time since
shortly after the original certification and have never
been included in the unit precludes Petitioner from
seeking these employees now by means of the instant
petition. As its final contention, the Employer argues
that the record shows a separate community of
interests among the plainclothes investigators which
therefore entitles them to decide for themselves
whether they wish to be represented along with the
other security personnel or whether they desire
separate representation.
The record discloses that on March 18, 1970, Local
151 was certified by the Board as the exclusive
bargaining representative of a unit of "all security
officers." This certification issued following an
election directed by the Regional Director in which a
majority of the valid ballots cast were for Petitioner.
Prior to that time, the Employer's security officers
were unrepresented.
The facts show that the position of plainclothes
investigators has existed from the inception of the
Union's representation of the Employer's security
officers. They also show that two contracts have been
negotiated since that time, neither covering the
employees in issue here. These facts indicate to us the
inappropriateness at this time of our including these
employees in the unit by means of the instant
petition.4 The fact that the exclusion of the plain-
clothes investigators may have come about because
of what was then Board precedent, since changed, is
in our view beside the point. The point is that the
investigators have not, since the summer of 1970,
been included in the unit; they were not included in
the latest 1973 contract, despite Petitioner's attempt
so to include them. Regardless of whether their
exclusion was the result of the Board's change of
precedent, the fact is they have never, despite their
existence for several years and the negotiation of an
intervening contract, had an opportunity to express
themselves for union representation. The Board has
not traditionally blanketed such employees into an
existing unit under the "accretion" doctrine. Howev-
er "fair" such an inclusion might be to the petitioning
union, it would not be fair to the unrepresented
investigators, who, as indicated, have never been
given an opportunity to vote on representation. An
RC petition filed at the appropriate time would
provide an opportunity for these employees to
3 Burns Security Systems, Inc, 188 NLRB 222, issued January 29, 1971.
Northwest Publications, Inc. d/b/a San Jose Mercury and San Jose News,
200 NLRB No 20; Wallace-Murray Corporation, Schwrtzer Division, 192
NLRB 1090
209 NLRB No. 153
CAESARS PALACE
express whether or not they desire to he represented
along with the other employees in the unit, without
our disrupting the bargaining relationship estab-
lished over some time by the Employer and Petition-
er. Accordingly, we shall dismiss the petition.5
ORDER
It is hereby ordered that the petition herein be, and
it hereby is, dismissed.
MEMBER JENKINS, dissenting:
Unlike my colleagues, I would grant Petitioner's
request to include these plainclothes investigators in
the unit of security guards.
Initially I note my disagreement with the majority's
conclusion that Petitioner has somehow waived its
right to ask the Board to determine whether in fact
certain employees should he included in the unit by
means of our unit clarification procedure. The facts
of this case show that Petitioner, throughout its
dealings with respect to the Employer's security
personnel, acted in accordance with the principles
applicable under Section 9 of the Act and the
decisions of the Board. It seems to me unfair to
refuse Petitioner's request to clarify the unit solely on
the basis of its past action (or inaction) which we
compelled under rules which we have since changed.
The essential facts as to what occurred over the
history of Petitioner's representation are not in
dispute. Shortly after the certification issued in
March 1970, the Employer's chief of security, Jack
Mavis, participated in a meeting with representatives
of Local 151, including its then attorney, Bill Davis.
The meeting concerned the Employer's use from
time to time of uniformed guards as plainclothes
investigators. The attorney for Local 151 protested
this practice, asserting that for legal reasons Local
151 could not represent plainclothes investigators
and its members could not be used for this type of
work. In its brief, Petitioner points out that it took
this position based on our decision in Pinkerton's
National Detective Agency, Inc., 124 NLRB 1076,
wherein, although in dicta, it was stated that a union
which represents security guards runs the risk of
losing its certification under Section 9 of the Act if it
In view of our disposition herein, we need not reach the other
contentions raised by the Employer.
951
accepts into membership nonsecurity guard employ-
ees. The Board in that case found that certain
plainclothes investigators were not guards within the
meaning of the Act. Subsequent to the above
meeting, the Employer hired its first full-time
plainclothes investigator in the summer of 1970.
Presently three such employees are on the Employ-
er's payroll.
The Petitioner had refused to represent these
employees because we had indicated that it would
not do so consistent with its certification. It changed
its position only after we reversed our view as to the
status of plainclothes investigators .6 In Burns, the
Board clarified a guard unit by adding a group of
plainclothes security officers whose duties were
essentially the same as the employees in issue here,
and in so doing explicitly overruled Pinkerton's on
this issue. Thus Petitioner, under our Pinkerton's
decision, would have run the serious risk of losing its
certification and all the rights thereunder had it
initially accepted these employees into membership.
Petitioner's refusal can hardly be viewed as a
voluntary act by which Petitioner relinquished rights
it would ordinarily enjoy under our procedures
governing unit clarification petitions.
In the Wallace-Murray case, on which my col-
leagues rely, the employer knew and voluntarily
accepted the fact that the union represented its guard
employees as well as its production employees. The
Union in this case has not voluntarily declined to
represent the employees, but has done so only under
the compulsion of the Board's Pinkerton's decision.
Finally, the record shows that wages for plain-
clothes investigators have always been set according
to the contract scale for uniformed guards. They are
hired and supervised by the same personnel and
perform duties which, although differing from
uniformed guards in some respects, are nonetheless
essentially the same as the plainclothesmen in Burns
and as such are within the statutory definition of
guards. I would therefore include the plainclothes
investigators in the certified guard unit. This would
not disrupt the Employer's operation and would be
in accord with our decision in Burns.
6 Burns Security Systems, Inc, 188 NLRB 222.