The Mirage Casino-Hotel d/b/a The Mirage

National Labor Relations Board - Board Decisions

May 23, 2016

364 NLRB No. 1 (N.L.R.B. 2016)

364 NLRB No. 1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
The Mirage Casino-Hotel d/b/a The Mirage and In-
ternational Union of Operating Engineers Local
501, AFL–CIO. Case 28–CA–170874
May 23, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on March 1, 2016,
by International Union of Operating Engineers Local
501, AFL–CIO (the Union), the General Counsel issued
the complaint on March 21, 2016, alleging that The Mi-
rage Casino-Hotel d/b/a The Mirage1 (the Respondent)
has violated Section 8(a)(5) and (1) of the Act by failing
and refusing to recognize and bargain with the Union
following the Union’s certification in Case 28–RC–
154083. (Official notice is taken of the record in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(d).
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer admitting in part and denying in part the
allegations of the complaint, and asserting affirmative
defenses.
On April 5, 2016, the General Counsel filed a Motion
for Summary Judgment. On April 6, 2016, the Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not
be granted. The Respondent filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the Union’s certification on the basis
of its contentions, raised and rejected in the underlying
representation proceeding, that (1) the Union’s represen-
tation petition was invalid because it did not comply with
Section 102.61(a)(8) of the Board’s Rules and Regula-
tions, (2) the unit is inappropriate because the surveil-

1 We grant the General Counsel’s unopposed motion to amend the
pleadings to reflect the Respondent’s correct name, and we have modi-
fied the case caption accordingly. Therefore, the Respondent’s conten-
tions—that the complaint should be dismissed and the motion for sum-
mary judgment should be denied because the entity named in those
documents does not employee the unit employees—are moot.
lance technicians are guards within the meaning of Sec-
tion 9(b)(3) of the Act and the Union represents non-
guard employees of the Respondent, and (3) the unit is
inappropriate because the surveillance technicians are
confidential employees.2
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered or previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a cor-
poration company with an office and place of business in
Las Vegas, Nevada (the Respondent’s facility) and has
been engaged in operating a hotel and casino providing
food, lodging, gaming, and entertainment.
During the 12-month period ending March 1, 2016, the
Respondent, in conducting its operations described
above, purchased and received at the Respondent’s facili-
ty goods valued in excess of $50,000 directly from points
outside the State of Nevada and derived gross revenues
in excess of $500,000.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on July 7,
2015, the Union was certified on October 28, 2015, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:

2 The Respondent raises as an affirmative defense the assertion that
the Board’s November 18, 2015 Order in Case 28–RC–154083 did not
rule on the Respondent’s contention that the surveillance technicians
are confidential employees. However, the Board’s November 18, 2015
Order denied the Respondent’s request for review of the Regional
Director’s Decision and Direction of Election because it raised no
substantial issues warranting review, thereby affirming the Regional
Director’s finding that the Respondent failed to meet its burden of
proof to establish that the surveillance technicians are confidential
employees.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All full-time and regular part-time surveillance techs at
the Employer’s facility; excluding all other employees,
including office, clerical, professional, guards, and su-
pervisors as defined in the National Labor Relations
Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
At all material times, Rick Jost held the position of
vice president of human resources and has been a super-
visor of the Respondent within the meaning of Section
2(11) and an agent of the Respondent within the meaning
of Section 2(13) of the Act.
At all material times, the senior associate general
counsel labor & employment of MGM Resorts Interna-
tional held the position of legal counsel of the Respond-
ent and has been an agent of the Respondent within the
meaning of Section 2(13) of the Act.
On December 18, 2015 and February 26, 2016, the
Union, by letters, requested that the Respondent recog-
nize and bargain with it as the exclusive collective-
bargaining representative of the unit.
Since about January 12, 2016, the Respondent, by let-
ter, has failed and refused to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the unit.
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing since about January 12, 2016,
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the appropriate unit, the Respondent has engaged in un-
fair labor practices affecting commerce within the mean-
ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, The Mirage Casino-Hotel d/b/a The Mirage,
Las Vegas, Nevada, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Union of Operating Engineers Local 501,
AFL–CIO as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:
All full-time and regular part-time surveillance techs at
the Employer’s facility; excluding all other employees,
including office, clerical, professional, guards, and su-
pervisors as defined in the National Labor Relations
Act.
(b) Within 14 days after service by the Region, post at
its facility in Las Vegas, Nevada copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
THE MIRAGE CASINO-HOTEL 3
ered by any other material. If 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 em-
ployees and former employees employed by the Re-
spondent at any time since January 12, 2016.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. May 23, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with International Union of Operating Engineers Local
501, AFL–CIO as the exclusive collective-bargaining
representative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing bargaining unit:
All full-time and regular part-time surveillance techs at
our facility; excluding all other employees, including
office, clerical, professional, guards, and supervisors as
defined in the National Labor Relations Act.
THE MIRAGE CASINO-HOTEL D/B/A THE
MIRAGE
The Board’s decision can be found at
www.nlrb.gov/case/28–CA–170874 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.