Stardust Hotel & Casino

National Labor Relations Board - Board Decisions

Jun 23, 1995

317 N.L.R.B. 926 (N.L.R.B. 1995)

926
317 NLRB No. 126
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent argues that the judge, in finding that the changes
in Local 1780 brought about by the International Union’s imposition
of a trusteeship or ‘‘supervisorship’’ fatally eroded employee sup-
port, mischaracterizes its defense to the allegations that its with-
drawal of recognition and refusal to bargain were unlawful. We note
that although the judge’s decision, at some points, mischaracterized
the issue as whether the supervisorship had fatally eroded employee
support, the judge correctly analyzed the legal issues raised by the
Respondent: whether the supervisorship so altered Local 1780 as to
destroy its continuity of representation and privilege the Respond-
ent’s refusal to bargain and withdrawal of recognition. We agree that
the changes made in the operations of Local 1780 during the
supervisorship were not ‘‘sufficiently dramatic’’ to alter its identity
as the bargaining representative, and hence that the Respondent
could not lawfully withdraw recognition on grounds of lack of con-
tinuity of representation. See NLRB v. Food & Commercial Workers
Local 1182 (Seattle-First Bank), 475 U.S. 192, 206 (1986). 1 The instant case had earlier been before the Board on a Motion
for Summary Judgment. As a result of the filings in that aspect of
the case as well as the pleadings and the stipulations of counsel at
trial, by the time of the submission of posthearing briefs, there were
few disputes regarding collateral matters. Where not otherwise noted,
the findings here are based on the pleadings, the stipulations, admis-
sions, and concessions of counsel at trial and on brief or unchal-
lenged credible evidence.
Mare-Bear, Inc. d/b/a Stardust Hotel & Casino and
United Brotherhood of Carpenters & Joiners
of America, Local Union No. 1780, AFL–CIO.
Case 28–CA–12165
June 23, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On June 8, 1994, Administrative Law Judge Clifford
H. Anderson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief. The
Charging Party filed a brief joining the General Coun-
sel’s answering brief and making certain other addi-
tional arguments, and the Respondent filed a brief in
reply to the General Counsel’s and the Charging Par-
ty’s answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt his recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Mare-Bear, Inc. d/b/a Star-
dust Hotel & Casino, Las Vegas, Nevada, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Wanda Pate Jones, Esq., for the General Counsel.
Gregory E. Smith, Esq. (Smith & Kotchka), of Las Vegas,
Nevada, for the Respondent.
Hope J. Singer, Esq. (Taylor, Roth, Bush & Geffner), of Los
Angeles, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on March 8, 1994, in Las Vegas, Ne-
vada, pursuant to a complaint and notice of hearing issued
by the Regional Director for Region 28 of the National
Labor Relations Board (the Board) on October 7, 1993,
based on a charge filed on August 30, 1993, and docketed
as Case 28–CA–12165 by United Brotherhood of Carpenters
& Joiners of America, Local Union No. 1780, AFL–CIO (the
Charging Party or the Union) against Mare-Bear, Inc. d/b/a
Stardust Hotel & Casino (Respondent).
The complaint alleges that Respondent wrongfully with-
drew recognition of the Union as the exclusive representative
for purposes of collective bargaining of a unit of Respond-
ent’s employees in violation of Section 8(a)(5) and (1) of the
National Labor Relations Act (the Act). Respondent admits
withdrawing recognition from the Union but avers that its ac-
tion was proper because the Union no longer properly rep-
resented the employees as the result of certain changes in the
Union arising in the context of a supervisorship imposed by
the International Brotherhood of Carpenters & Joiners of
America.
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence, to call, examine, and
cross-examine witnesses, to argue orally, and to file
posthearing briefs. Briefs were due on April 12, 1994.
On the entire record here, including helpful briefs from the
General Counsel, the Charging Party, and Respondent, and
from my observation of the witnesses and their demeanor, I
make the following1
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent has been a state of Ne-
vada corporatlon with an office and place of business in Las
Vegas, Nevada, where it has been engaged in the operation
of a hotel and casino. Respondent as part of its business op-
erations annually enjoys revenues in excess of $1 million and
annually purchases and receives products, goods, and mate-
rials directly from other enterprises within the State of Ne-
vada of a value in excess of $50,000, each of which other
enterprises received the products, goods, and materials di-
rectly from points outside the State. Respondent is therefore
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Although Respondent in its answer admitted that the union
was a labor organization only until the supervision discussed
infra, Respondent’s position at trial and on brief seemed to
927STARDUST HOTEL & CASINO
2 The complaint and the answer describe the bargaining unit by
reference to provisions of the last collective-bargaining agreement
between the parties. That contract language essentially names car-
penters as the represented employees and that is the term used here
for the sake of brevity. Nothing in this unit description or elsewhere
in this decision, however, is intended to derogate from or in some
manner change the unit as it has historically been described and un-
derstood by the parties.
3 ‘‘Supervision’’ and ‘‘Supervisor’’ are the International constitu-
tion’s terms for what is known in other labor organizations as
‘‘trusteeship’’ and ‘‘Trustee.’’ The Union is explicitly subordinate to
the International and constitutionally susceptible to having its auton-
omy reduced or eliminated by the International under established
procedures for creating supervisorships over locals.
concede that the Union has at all times been a labor organi-
zation within the meaning Section 2(5) of the Act, even
while arguing it is not a labor organization with a continuity
of representation respecting Respondent’s employees.
In all events, as discussed infra, the record is clear and I
find that the Union was at all times material a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Bargaining History
The Union has been a chartered local of the International
Brotherhood of Carpenters & Joiners of America (the Inter-
national) since 1929. In recent times the Union has rep-
resented employees in the carpentry and related trades em-
ployed by approximately 350 employers in certain counties
in the State of Nevada. It owns a building in Las Vegas, Ne-
vada, and from that site operates its general offices and a hir-
ing hall.
In 1985 Respondent purchased the assets of its predecessor
and assumed a collective-bargaining agreement with the
Union. The contract continued by its terms into 1987 and
covered a unit of Respondent’s carpenter employees (the
unit).2 At relevant times there have been approximately
seven or eight employees in the unit, all of whom have been
union members. There is no dispute that the unit has at all
times been appropriate for bargaining within the meaning of
Section 9 of the Act.
In the normal course as the assumed contract approached
expiration, collective bargaining ensued between the parties
for a new agreement. Bargaining continued between Re-
spondent and the Union without an agreement being reached
until June 15, 1993. On that date Respondent counsel sent
a letter to the Union, inter alia, withdrawing recognition of
the Union as representative of employees in the unit. The let-
ter states in part:
The Stardust has recently been informed that all of
the business agents of Local 1780 have been fired, that
all of the executive board members have been dis-
missed, and that all the elected officials of Local 1780
have been removed from office by the International
Brotherhood of Carpenters and Joiners of America
(‘‘International Union’’). The Stardust further believes
this ‘‘takeover’’ by the International Union has been
accomplished without any vote whatsoever of the bar-
gaining unit employees who were represented by Local
1780.
This action by the International Union has effectively
destroyed the existence of Local 1780. As the bargain-
ing unit employees, therefore, have no representative of
their choosing, the Stardust has no further bargaining
obligation. In the absence of a vote of the members of
the bargaining unit and in the absence of a ‘‘continu-
ity’’ of the organization, which includes a continuity of
elected officers and representatives, the International
Union officers and representatives, the International
Union cannot simply take over the bargaining position
of Local 1780. The International has never been recog-
nized as the representative of the Stardust employees
and the Stardust therefore has no obligation to bargain
with the International Union.
Thereafter discussions were held between Respondent and
the Charging Party counsel without resolution of the matter.
The charge here was filed in August 1993. Although Re-
spondent had as of the time of the hearing continued to apply
the terms of the expired contract, it has at all times after
June 15, 1993, continued to refuse to recognize the Union as
the representative of its unit employees and has continued to
refuse to meet and bargain with the Union respecting a new
contract for the unit employees.
B. Events Concerning the Union in 1993
On January 28, 1993, the Union was placed under emer-
gency supervision by the International.3 The emergency su-
pervision lasted until May 1, 1993, at which time the Union
was placed under nonemergency supervision. That super-
vision continued as of the hearing here.
Under the supervision, a supervisor was named by the
International, the Union’s bylaws were suspended and var-
ious officials of the Union were replaced. In essence, under
the supervision the supervisor and his appointees assumed
and maintained day-to-day control over the Union. The
Union continued to represent employees, service contracts,
negotiate new contracts, and organize. Respondent was the
only employer to withdraw recognition of the Union based
on the supervision. The Union maintained its offices and the
operation of its hiring hall. Thus, the Union’s autonomy had
been withdrawn by the supervision and the identity of the
Union’s officials had been changed. The geographic and
trade jurisdiction as well as the general operations of the
Union were unchanged. No mergers between or among locals
of the International or affiliations with other labor organiza-
tions were undertaken.
C. Analysis and Conclusions
1. Defining the issues in the case
a. The factual setting
Respondent had admittedly recognized and bargained with
the Union respecting a unit of its employees. In June 1993
it withdrew recognition from the Union. There is no conten-
tion that the bargaining unit was, or is, inappropriate. Re-
spondent makes a single contention in defending its with-
drawal of recognition: Respondent claims that the Union
ceased to represent unit employees because of changes in the
Union resulting from the imposition of a supervisorship by
the Union’s International.
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The changes in the Union on which Respondent relies in
support of its assertion that the Union ceased to represent its
employees are also not in essential factual dispute. The dates
of the imposition of an initial emergency and subsequent
nonemergency supervisorship on the Union by the Inter-
national are not in contention. There was no dispute respect-
ing details of the imposition of the supervisorship or super-
vision, the appointment of a supervisor, the suspension of the
Union’s bylaws, and the replacement of the Union’s officials.
The supervision suspended the Union’s previous autonomy
as a local of the International and the day-to-day affairs of
the Union were subsequently conducted by the supervisor
and his newly appointed administration. Consistent with the
International’s procedures, no vote of the union membership
or Respondent’s unit employees took place to approve or rat-
ify either the imposition of the supervisorship or the person-
nel changes that resulted therefrom.
b. The legal setting
The Board with court approval has evolved a doctrine
holding that in certain situations changes in a labor organiza-
tion which represents employees of an employer are signifi-
cant enough to destroy its exclusive right to represent those
employees and free the employer from its obligation to con-
tinue to recognize and bargain with the labor organization as
the representative of its employees.
The Act recognizes that employees support for a cer-
tified bargaining representative may be eroded by
changed circumstances. (N.L.R.B. v. Food & Commer-
cial Workers Local 182, 475 U.S. 194, 198 (1986).)
The application of this general doctrine to the specific facts
of this case was closely argued by the parties both at the
hearing and in learned briefs. Those arguments will be set
forth in detail, infra.
c. The issue summarized
As set forth above and agreed by the parties, the sole issue
in this case is whether or not the supervisorship and con-
sequential changes in the Union described above justified
Respondent’s withdrawal of recognition of the Union as rep-
resentative of its employees. If the changes fatally eroded
employee support for the Union, then Respondent’s with-
drawal of recognition of the Union was not improper and did
not violate the Act as alleged, and the complaint will be dis-
missed. If the changes did not justify withdrawal of recogni-
tion, then Respondent has improperly withdrawn recognition
from and refused to bargain with the Union and in so doing
violated the Act as alleged in the complaint.
2. The argument of the parties
a. Respondent’s argument
While noted briefly above, Respondent’s single defense to
its withdrawal of recognition of the Union as representative
of its unit employees as presented in Respondent’s
posthearing brief may be set forth in greater detail as fol-
lows. Respondent asserts that the changes which occurred
within the Union as part and parcel of the supervisorship im-
posed by the International so changed the Union that either
union member or unit employee approval of the changes was
necessary for the Union to continue to represent employees.
Since neither members of the Union nor the employees in the
bargaining unit were consulted about the changes, argues Re-
spondent, the Union no longer represented its employees and
Respondent no longer had an obligation to recognize and
bargain with the Union.
Respondent argues that in situations involving changes in
labor organizations such as local union changes in affiliation
with international unions and in cases of the merger or divi-
sion of locals, the Board looks to the ‘‘continuity of rep-
resentation’’ of the local union and considers such factors as
the retention of local union autonomy and the retention of
local officers and established procedures citing NLRB v.
Food & Commercial Workers Local 1182, 475 U.S. 194, 200
(1986), and a host of Board and court cases.
Applying the Board’s continuity of representation standard
to the facts here, argues Respondent, the Union’s loss of
local autonomy, the suspension of the Union’s bylaws, and
the complete replacement of officialdom within the Union
conclusively demonstrate that the presupervisorship Union
has no continuity with the supervised Union as it existed
after imposition of the supervision and replacement of its of-
ficers and other officials. In such situations the Board and
the courts hold a question concerning representation is pre-
sented. Therefore, argues Respondent, the Union ceased to
represent Respondent’s employees at the time of the imposi-
tion of the supervisorship and institution of the personnel
changes noted and as of that time Respondent no longer had
an obligation to continue to recognize or bargain with the
Union.
Addressing the General Counsel’s contention that a trust-
eeship or supervisorship is irrelevant to any determination of
an employer’s bargaining obligation with a changed local
union, Respondent argues that it is not the fact of trusteeship
which is relevant but, rather, the changes to a labor organiza-
tion that occurs under the trusteeship. Respondent cites Char-
lie Brown’s, 271 NLRB 378 (1984), and Quality Inn Waikiki,
297 NLRB 497 (1989), as Board cases in which the fact of
a trusteeship was considered by the Board as one of several
factors considered in determining that unions had been so
changed that they no longer represented employees as for-
merly and that after the changes a question concerning rep-
resentation arose.
b. The General Counsel and the Charging Party’s
argument
Counsel for the General Counsel starts her argument by
noting that the Union admittedly represented Respondent’s
employees in an appropriate unit for a considerable period.
She correctly notes that the burden is on Respondent to jus-
tify its withdrawal of recognition and refusal to bargain with
the Union in such a situation.
Turning to Respondent’s defense, the General Counsel and
the Charging Party argue that Respondent’s legal argument
is fundamentally flawed and that Respondent counsel is, in
effect, incorrectly picking and choosing from portions of
independent doctrines in order to justify Respondent’s
wrongful withdrawal of recognition. Thus, they argue that
Respondent is improperly attempting to apply a ‘‘continuity’’
analysis which is only applied by the Board and courts in a
very limited, highly specific set of factual circumstances,
none of which is present in the instant case. The ‘‘continu-
929STARDUST HOTEL & CASINO
4 29 U.S.C. § 411–415. Act of September 14, 1959, Pub. L. 86–
257, 86th Cong., 1st Sess., also referred to as the Landrum-Griffin
Act.
5 86th Cong., 1st Sess., July 30, 1959, reprinted in 1 Leg. Hist.
759–833 (LMRDA 1959).
ity’’ doctrine, argue the Charging Party and the General
Counsel, is applied exclusively to situations where there has
been a threshold determination that there has been a fun-
damental change in a union of one of three types: (1) a divi-
sion of a union into multiple parts, (2) a merger of a union
with another union or unions, and (3) a change in the union’s
affiliation with a superior organizational entity such as an
international union.
After a determination has been made by the Board that
such categorical changes have occurred one of the issues
considered in certain cases is whether or not the change in
the labor organization may be approved internally within the
union or whether a question concerning representation is pre-
sented which requires in effect a new demonstration of ma-
jority supply (sic) in the unit. To determine this question,
argue the Charging Party and the General Counsel, the Board
uses what is here referred to as a continuity analysis. Since
the Union undisputedly has not experienced a merger, divi-
sion, or change in affiliation, that analysis is inappropriate
here. The General Counsel and the Charging Party argue that
the continuity arguments advanced by Respondent have
never been and should not now be applied to other situations
such as the one presented here where no such changed cir-
cumstances in the sense used in the Board cases have oc-
curred.
Turning to the facts of the instant case, the Charging Party
and the General Counsel argue that the Board and courts
have long held that the imposition of a trusteeship on a local
is not such a triggering circumstance like an affiliation or
merger requiring further investigation of a union’s continuity
of representation citing numerous cases many of which will
be discussed, infra. The Charging Party and the General
Counsel argue further that the cases cited by Respondent are
all distinguishable on precisely this basis because they all in-
volve union local divisions, mergers, affiliations, or other cir-
cumstances not present in the instant case.
The Charging Party and the General Counsel argue that
there is no basis for finding that the Union experienced any
changes relevant to its representational status. Since Re-
spondent’s argument that the Union no longer represents its
employees is not sustainable, argue the General Counsel and
the Charging Party, the Union at all times material continued
to represent unit employees and Respondent’s withdrawal of
recognition is without justification and violates Section
8(a)(5) and (1) of the Act as alleged in the complaint.
3. Analysis
a. What is the relevance of an imposed supervisorship
or trusteeship to a local union’s unit member support?
(1) Trusteeship generally
Before addressing the Board and court cases dealing with
trusteeships imposed on subordinate union bodies by national
or international unions, it is appropriate to consider briefly
the history and nature of such trusteeships. Section 3(h) of
the Labor-Management Reporting and Disclosure Act of
19594 states:
‘‘Trusteeship’’ means any receivership, trusteeship, or
other method of supervision or control whereby a labor
organization suspends the autonomy otherwise available
to a subordinate body under its constitution or bylaws.
The concept in America labor history was discussed in H.R.
741 on H.R. 8325 at 13:
Trusteeships
Constitutions of many international unions authorize the
international officers to suspend the normal processes
of government of the local unions and other subordinate
bodies, to supervise their internal activity and assume
control over their property and funds. These ‘‘trustee-
ship’’ (or ‘‘receiverships’’ or ‘‘supervisorships,’’ as
they are sometimes called) are among the most effec-
tive devices which responsible officers have to insure
order within their organization. In general, they have
been widely used to prevent corruption, mis-manage-
ment of union funds, violation of collective-bargaining
agreements, infiltration of Communists; in short to pre-
serve the integrity and stability of the organization
itself.
Congress also found trusteeships to be in need of regula-
tion, however, and in Title III of the Landrum-Griffin Act es-
tablished a regulatory scheme including reporting require-
ments, limitations on purposes for which trusteeships may be
established, presumptions of validity and invalidity depend-
ing on the duration of the trusteeship, and enforcement provi-
sions, including in some cases the involvement of the Sec-
retary of Labor, enforceable in the district courts of the
United States.
(2) The change, if any, in a labor organization’s status
when in trusteeship
As the General Counsel and the Charging Party have ar-
gued, the simple fact of the imposition of a trusteeship on
a union, without more, has long been held by the Board and
the courts not to either deprive the labor organization of its
status under Section 2(5) of the Act or otherwise to con-
stitute a change in labor organization presenting a question
concerning representation. E.g., Sahara-Tahoe Hotel, 229
NLRB 1094 (1977), enfd. 581 F.2d 767 (9th Cir. 1978),
wherein the Board noted at 1095 fn 10: ‘‘[T]he imposition
of a trusteeship is an internal union matter and is not pro-
bative of whether the Union represented a majority.’’
In Pioneer Inn v. NLRB, 578 F.2d 835 (9th Cir. 1978),
enfg. 228 NLRB 1263 (1977), the court stated at 838 fn. 1:
‘‘The imposition of trusteeship does not affect the Union’s
status as exclusive bargaining representative. Florida Mining
& Materials Corp. v. NLRB, 1 F.2d 65, 69–70 (5th Cir.
1973), cert. denied 415 U.S. 990 (1974).’’
See also Sahara-Tahoe Hotel, 241 NLRB 106, 111 (1979);
Jim Kelley’s Tahoe Nugget, 227 NLRB 357 (1976), enfd.
584 F.2d 293 (9th Cir. 1978); Palace Club, 229 NLRB 1128
(1977).
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(3) Are all changes in a trusted local irrelevant and
immaterial to employee or member support?
Respondent on brief does not contend that a trusteeship,
standing alone, constitutes a change in status ending a local
union’s representative status. Rather, argues Respondent,
changes which occur as a result of or in the context of a
trusteeship must be examined to see if they have destroyed
union representational continuity. Thus, Respondent argues
that the status of a local union under a trusteeship remains
a relevant factor for consideration in that, if a trusteeship is
not a disenfranchising event, neither should it be a screen or
cloaking device to shelter otherwise disenfranchising changes
from Board scrutiny.
Three cases were advanced by Respondent as demonstrat-
ing that a trusteeship is a relevant factor in considering union
continuity issues: Charlie Brown’s, 271 NLRB 37 (1984);
Waikiki Plaza Hotel, 284 NLRB 23 (1987), enfd. 783 F.2d
1444 (9th Cir. 1986); and Quality Inn Waikiki, 297 NLRB
497 (1989). The cases deal with two factual situations in
which the Board specifically noted the existence of a trustee-
ship in finding a fatal loss of union continuity. The parties
discussed these cases at length.
In Charlie Brown’s, the Board refused to certify a local
union which, after receiving a majority of valid votes, was
placed in trusteeship and divided into two parts. The Board
noted the trusteeship and held the union’s division into two
parts presented a question concerning representation. In foot-
note 3 at 378 the Board reviewed the Board law on mergers
and divisions. The last sentence of the footnote states: ‘‘We
do not here address the effect of trusteeship alone on the rep-
resentative status of a labor organization.’’ (271 NLRB 378
fn. 3 (1984).)
In Waikiki Plaza Hotel the Board denied an employer mo-
tion to reopen the record in an unfair labor practice case to
show that a trusted local had merged, posthearing, with an-
other local. The Board held the trusted local continued to
represent the employer’s employees. In Quality Inn Waikiki
the Board returned to the events of Waikiki Plaza Hotel in
the context of a now consummated merger of two locals. As
a result of the merger the Board applied its continuity of rep-
resentation standards to the local. On the facts of that case,
the Board compared the local as it was before the trustee-
ship, rather than after the imposition of the trusteeship but
before the merger, with the postmerger local. Finding no
continuity of representation applying traditional standards,
the Board found no continuing bargaining obligation on the
part of the employer therein.
It is clear that, in each of the cited cases in which the fact
of a labor organization’s having been placed in trusteeship
was considered in the context of a continuity of representa-
tion analysis, a merger of labor organizations or a division
of a labor organization was also involved. No cases have
been cited which apply a continuity of representation analy-
sis where such traditional changes have not been present.
Thus, as the Charging Party and the General Counsel argue,
the cases are distinguishable from and not inconsistent with
the line of cases, cited supra, holding that trusteeship is not,
standing alone, relevant to the representational status of a
labor organization or an employer’s obligation to recognize
and bargain with that labor organization as representative of
its employees.
As noted, Respondent argues that changes which take
place under a trusteeship or supervisorship should not be
sheltered from consideration simply by the fact that the
changes occurred under a trusteeship. Thus, Respondent ar-
gues, for example, that a merger or division of a labor orga-
nization at the direction of its International or the trustee
under an imposed trusteeship must be considered a change
under Board standards. I agree.
I conclude that the pure, isolated fact that a labor organi-
zation is under a trusteeship or supervisorship is irrelevant to
the issue of the representative status of such a labor organi-
zation. I further find, however, that changes to a local union
brought about by occurring coincident with the imposition of
a trusteeship or supervision, rather than being in some fash-
ion privileged or sheltered from consideration in a union con-
tinuity analysis under the Board’s existing standards, may be
considered as if the changes had occurred independent of any
trusteeship or supervision. Thus, for example, as suggested
by Respondent a merger of locals or a division of a trusted
local into two parts undertaken by the local union as the re-
sult of a trusteeship or supervision would properly be consid-
ered by the Board in determining if the union had suffered
a discontinuity of representation. Indeed, Charlie Brown’s,
supra, and Quality Inn Waikiki, supra, are consistent with this
proposition.
b. Application to the instant case
Having concluded that the fact of trusteeship alone or in
isolation is irrelevant, but that changes in the union occurring
coincident with the trusteeship may be considered, it is ap-
propriate to apply the standard to the instant case.
(1) Categories defined
There are two fundamentally different types of changes
which may occur to a labor organization: changes to its con-
stitutional or fundamental underpinnings or changes in the
governance of the Union consistent with those underpinnings.
The former category of change involves the change in the
nature of the organization such as a change in its constitu-
tional relationship to affiliated superior bodies such as an
international union or such changes schisms or mergers
which represent a change in the organization itself. The latter
category of change involves changes which do not effect the
structure or nature of the entity but rather act within it.
Changes in the identity of officials of the entity or changes
in the way the offices are administered are typical of such
changes.
The basic or constitutional changes such as union mergers,
divisions, and affiliation changes discussed by the Board and
courts in the cases cited, supra, require employee or member
approval in differing circumstances. The changes within the
organization which do not change its structure do not. The
exercise of existing constitutional procedures by an inter-
national union to place its subordinate local union under a
trusteeship, as discussed in the cases quoted supra, is not a
matter relevant to issues of employee support for the labor
organization.
(2) The changes in the Union characterized
As discussed in greater detail supra, the Union here was
put into supervisorship through the implementation of pre-
931STARDUST HOTEL & CASINO
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
existing constitutional provisions. Existing rules and proce-
dures were implemented. No changes in the constitutional re-
lationship between the International and the Union were un-
dertaken nor was the Union divided, merged, or reaffiliated.
Thus, none of the traditional fundamental changes discussed
in Board and court cases, supra, occurred.
Change did occur however. The Union lost its autonomy,
its bylaws were suspended, and its officials were replaced.
Such changes however are, in my view, precisely those
changes which occur whenever a local is put in trusteeship
or supervisorship by its parent body. In essence the changes
the Union experienced are part and parcel of any imposition
of a trusteeship or supervisorship. Loss of autonomy is an
automatic consequence of the imposition of a trustee or su-
pervisor. Suspension of local bylaws is no more than a con-
summation of that depravation of autonomy. Replacement of
some or all of a subordinate body’s officials is again no
more than another manifestation of the trustee’s assumption
of power.
Given all the above, I find that changes which occurred
to the Union at relevant times here were limited to the
changes essentially inherent in the process of imposing a
trusteeship or supervision. I find no other changes, including,
in particular, changes in the fundamentalnature of the Union
such as division, mergers, or changes in affiliation, occurred.
3. Summary
I have found that the changes at issue here are not of the
type that the Board and courts have considered relevant to
issues of employee support for the union that represents
them. I have further found that the changes in their totality
are no more than those necessarily involved in the imposition
of a trusteeship—a process specifically found by the Board
and the courts to be irrelevant to issues of employees’ major-
ity support for a union. The chances are therefore irrelevant
to the issue of support of unit employees for the Union.
4. Conclusion
There has never been any dispute that the Union had been
recognized by Respondent as the exclusive representative of
Respondent’s employees in an appropriate unit or that Re-
spondent withdrew recognition of and thereafter failed to bar-
gain with the Union concerning unit employees’ terms and
conditions of employment. The sole issue in this case is
whether the changes to the Union under its supervision per-
mitted Respondent to take the actions it did.
I have found above that the changes experienced by the
Union under its supervision did not erode its support among
unit employees and therefore did not justify Respondent’s
withdrawal of recognition nor its subsequent refusal to meet
and bargain with the Union respecting a new contract for
unit employees. Respondent has therefore by its wrongful
withdrawal of recognition and refusal to bargain with the
Union as representative of Respondent’s unit employees vio-
lated Section 8(a)(5) and (1) of the Act as alleged in the
complaint.
REMEDY
Having found the Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action,
including the posting of a notice, designed to effectuate the
policies of the Act.
I shall require Respondent to rescind its withdrawal of rec-
ognition of the Union as the exclusive representative of its
unit employees for purposes of collective bargaining. I shall
further require Respondent to notify the Union in writing that
it has rescinded its withdrawal and to affirmatively assert
that it recognizes the Union as the exclusive representative
of unit employees. I shall further require Respondent to bar-
gain with the Union, on request, concerning terms and condi-
tions of employment of unit employees and, if a new con-
tract is reached, to sign such contract.
On the basis of the findings of fact and on the entire
record herein, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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. The Union at all times material has represented a unit
of all Respondent’s carpenter employees excluding super-
visors as defined in the Act (the unit).
4. The unit described above is appropriate for collective
bargaining within the meaning of Section 9 of the Act.
5. Respondent violated Section 8(a)(5) and (1) of the Act
by engaging in the following acts and conduct on and after
June 15, 1993:
(a) Withdrawing recognition of the Union as the exclusive
representative of Respondent’s unit employees for purposes
of collective bargaining.
(b) Failing and refusing to meet and bargain with the
Union concerning rates of pay, wages, hours of employment,
and other terms and condition of employment of the unit em-
ployees.
6. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Mare-Bear, Inc. d/b/a Stardust Hotel and
Casino, Las Vegas, Nevada, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Withdrawing, withholding, and continuing to withhold
recognition fron the Union as the exclusive representative of
Respondent’s unit employees.
(b) Failing and refusing to meet and bargain with the
Union concerning rates of pay, wages, hours of employment,
and other terms and condition of employment of unit em-
ployees.
(c) In any like or related manner violating the provisions
of the National Labor Relations Act.
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 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.’’
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind its withdrawal of recognition of the Union as
the exclusive representative of its unit employees for pur-
poses of collective bargaining and affirmatively recognize the
Union as such representative notifying the Union in writing
that this has been done.
(b) Meet and bargain with the Union, on request, concern-
ing terms and conditions of employment of unit employees
and, if a new contract is reached, reduce to writing and sign
such contract.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all records nec-
essary to insure that the terms of this Order have been fully
complied with.
(d) Post at its Las Vegas, Nevada facility copies of the at-
tached notice marked ‘‘Appendix.’’7 Copies of the notice, on
forms provided by the Regional Director for Region 28 in
English and such additional languages as the Regional Direc-
tor determines are necessary to fully communicate with em-
ployees, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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 Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT withdraw recognition from United Brother-
hood of Carpenters & Joiners of America, Local Union No.
1780, AFL–CIO as the exclusive representative of employees
for purposes of collective bargaining in the following unit:
All carpenter employees of the Stardust Hotel & Casino
excluding supervisors as defined in the National Labor
Relations Act.
WE WILL NOT refuse to meet and bargain in good faith
with the Union as the exclusive representative of the employ-
ees in the unit.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees and/or employee applicants in
the exercise of the rights guaranteed them in Section 7 of the
Act.
WE WILL rescind our withdrawal of recognition of the
Union as the exclusive representative of our unit employees
and WE WILL affirmatively recognize the Union, in writing,
as such representative.
WE WILL, on request, meet and bargain with the Union as
the exclusive bargaining representative of our unit employees
concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a
signed agreement.
MARE-BEAR, INC. D/B/A STARDUST HOTEL &
CASINO