Trump Taj Mahal Casino

National Labor Relations Board - Board Decisions

Feb 11, 1992

306 N.L.R.B. 294 (N.L.R.B. 1992)

294
306 NLRB No. 57
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 It is clear that the Regional Director applied the Board’s tradi-
tional eligibility formula for on-call employees as set forth in
Davison-Paxon Co., 185 NLRB 21, 23–24 (1970).
2 Members Oviatt and Raudabaugh; Member Devaney dissenting.
3 The Employer has requested oral argument. The request is denied
as the record, request for review, and briefs adequately present the
issues and the positions of the parties. 4 The record reveals that this is a list of stage technicians.
Trump Taj Mahal Associates, a New Jersey Limited
Partnership d/b/a Trump Taj Mahal Casino
Resort and International Alliance of Theatrical
Stage Employees, Local 917 and International
Union of Operating Engineers, Local 68A,
Joint Petitioners. Case 4–RC–17578
February 11, 1992
DECISION ON REVIEW AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 19, 1991, the Regional Director for Region
4 issued a Decision and Direction of Election in the
above-entitled proceeding. He found that the peti-
tioned-for unit of all full-time and regular part-time en-
tertainment and audio-visual technicians, including lead
technicians and ‘‘casuals’’ employed by the Employer,
is an appropriate unit, and that casual employees who
have worked an average of 4 hours or more per week
for the last quarter prior to the eligibility date are reg-
ular part-time employees and, thus, included in the
unit.1
Thereafter, in accordance with Section 102.67 of the
Board’s Rules and Regulations, the Employer filed a
timely request for review of the Regional Director’s
decision, contending that: (1) a unit consisting of all
entertainment department employees, including ushers,
ticket takers, and box office clerks is the only unit ap-
propriate for collective-bargaining purposes; and (2)
the petitioned-for unit improperly includes casual em-
ployees as they work on a sporadic and intermittent
basis with no reasonable expectation of continued em-
ployment. The Petitioner filed an opposition brief. On
May 20, 1991, the Board2 granted the Employer’s re-
quest for review solely with regard to the unit inclu-
sion and eligibility of the Employer’s ‘‘casual’’ techni-
cians. The election was held as scheduled on May 20,
1991, and the ballots were impounded pending the
Board’s Decision on Review. The Employer and the
Petitioner filed briefs on review in support of their po-
sitions.3
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the entire record in this
case with respect to the issue on review and has de-
cided, for the reasons set forth below, to affirm the Re-
gional Director’s decision.
The Employer has operated a hotel and casino,
Trump Taj Mahal Casino Resort (the Taj), in Atlantic
City, New Jersey, since April 2, 1990. The entertain-
ment department at the Taj includes stage technicians,
convention lounge technicians, and entertainment event
technicians. Stage technicians are responsible for load-
in, load-out, set up and operation of lighting, audio,
and stage equipment; operation of the dressing rooms;
set up of movable staging; convention power distribu-
tion; and rigging and hanging of anything suspended
from the ceiling. Convention lounge technicians pro-
vide audio and visual support to convention and trade
show clients, and maintain the hotel’s main music and
paging system and the stage operation of lounges, in-
cluding the audio and visual lighting for those areas.
Entertainment events technicians are responsible for
the scenery for convention clients and in-house parties.
The Employer maintains a list of approximately 40
on-call or ‘‘casual’’ employees who perform technical
functions, and who are called upon on an intermittent
basis to perform the same functions as regular tech-
nical employees when there are not enough regular
employees to perform the work. The Employer main-
tains this casual list because the casino industry is reg-
ulated by the New Jersey Casino Control Commission,
which requires employees to be licensed. Casual em-
ployees are also required to be ‘‘badged’’ by the Em-
ployer. Thus, the Employer must be able to draw from
a pool of technicians who have already met certain
procedural and technical requirements in order to sat-
isfy short-term labor needs.
During the first 11 months of operation, the Em-
ployer operated its entertainment department with three
full-time stage technicians and five full-time conven-
tion lounge technicians, and did not employ any part-
time technicians. About March 1, 1991, the Employer
increased its staff to 28 full-time technicians and 10
regular part-time technicians by hiring those employees
from the casual list. The Employer selected for hire
from the casual list those employees who had worked
the most hours at the Taj and who had the necessary
skills for the particular job. A number of casuals who
had worked a considerable number of hours in the past
still remained on the casual list thereafter.
The Regional Director found that the 1990 list of
casual employees entitled ‘‘entertainment techni-
cians’’4 shows that those employees worked from 30
to 952 hours during that year. The 1991 list, which
covers the period from January 1 to February 20, 1991,
shows that the casual entertainment technicians worked
between 0 and 271 hours. The 1990 ‘‘convention
lounge technician’’ casual list shows that they worked
from 4 to 1524 hours during 1990, and during the Jan-
uary 1 to February 20, 1991 period they worked 0 to
287 hours. The Regional Director found that during
295TRUMP TAJ MAHAL CASINO
5 The Employer does not expressly seek review of the eligibility
formula used by the Regional Director, or suggest that an alternative
formula be used.
6 See also May Department Stores Co., 175 NLRB 514 (1969); Al-
lied Stores of Ohio, 175 NLRB 966 (1969); V.I.P. Movers, 232
NLRB 14 (1977); West Virginia Newspaper Publishing Co., 265
NLRB 446 (1982); Sisters of Mercy Health Corp., 298 NLRB 483
(1990); Northern California Visiting Nurses’ Assn., 299 NLRB 980
(1990).
Member Oviatt does not apply the 4-hour average routinely to on-
call nurses. The 4-hour average is not at issue here.
7 If a recurrency test as proposed by our dissenting colleague were
to be applied in some cases, the party requesting review would have
the threshold burden of showing that the casual employees do not
work on a regular, recurrent basis, and that a different eligibility for-
mula than that ordinarily applied by the Board is warranted. We note
that the Employer has not met this burden in the present case.
1990 the casuals worked on an average of 379 hours
during the year or approximately 7 hours per week,
and during early 1991, the so-called casuals worked on
an average of 119 hours or approximately 17 hours per
week.
The Regional Director concluded that casual em-
ployees who work an average of 4 hours per week are
regular part-time employees and should be included in
the unit. The Employer’s request for review contends,
inter alia, that the petitioned-for unit improperly in-
cludes casual employees as they work on a sporadic
and intermittent basis with no reasonable expectation
of future employment. The Employer contends that it
will have less need for casual employees in the future
because of its increase in regular staff.5
In determining whether on-call employees should be
included in the bargaining unit, the Board considers
whether the employees perform unit work, and those
employees’ regularity of employment. Here, it is un-
disputed that the employees denominated ‘‘casuals’’
perform unit work. The Board has found that regularity
can be satisfied when an employee has worked a sub-
stantial number of hours within the period of employ-
ment prior to the eligibility date. See, e.g., Mid-Jeffer-
son County Hospital, 259 NLRB 831 (1981). Under
the Board’s longstanding and most widely used test for
voting eligibility, applied in this case by the Regional
Director, an on-call employee is found to have a suffi-
cient regularity of employment to demonstrate a com-
munity of interest with unit employees if the employee
regularly averages 4 or more hours of work per week
for the last quarter prior to the eligibility date. See,
e.g., Davison-Paxon Co., supra at fn. 1.6 Although no
single eligibility formula must be used in all cases, the
Davison-Paxon formula applied by the Regional Direc-
tor is the one most frequently used, absent a showing
of special circumstances.
Our dissenting colleague proposes a formula that in-
cludes recurrency of employment as a factor in deter-
mining eligibility and requires that employees not only
average 4 hours per week during the last quarter, but
that they also work for some period during at least
one-half of the weeks in that quarter. The Board has
consistently applied the Davison-Paxon formula to es-
tablish regularity of employment and our experience
shows it to be a reliable test for on-call employees.
Our colleague offers no empirical evidence to chal-
lenge that existing formula and justifies the new for-
mula he sets forth in his dissent by predicating that re-
current employment is a necessary element of that de-
termination. Even assuming for argument’s sake that
additional evidence of regularity or recurrency would
be necessary in this case to demonstrate that the casual
employees have a continuing interest in the working
conditions of the Employer, we find that the facts
show that as a group the on-call employees here have
worked on a regular basis and have such a continuing
interest.
The casual employees in this case are on an estab-
lished list drawn from a limited pool of employees,
who must be, and have been, approved by the Casino
Control Commission and then ‘‘badged’’ by the Em-
ployer. The Employer has regularly called the employ-
ees on the list, and the casual employees have aver-
aged a substantial number of work hours since the
opening of the Taj in April 1990. Moreover, the em-
ployees hired in March 1991 for full-time and regular
part-time positions were selected from the casual list,
based on the number of hours they had worked and
their particular skills. This selection process itself pro-
vided a reasonable basis for other casual employees on
the list to anticipate offers of full-time or regular part-
time employment as these positions become available
in the future. Thus, these ‘‘casual’’ employees have
worked on a regular basis and share a continuing inter-
est in the working conditions of the Employer. Further,
these employees are on the Employer’s list, which it
has not purged; they are not merely a collection of em-
ployees who happen to have worked for that Employer
at one time or another. Under these facts, the eligibility
formula applied by the Regional Director is in our
view sufficient to determine which of these casual em-
ployees have been called with sufficient regularity dur-
ing the last quarter to warrant their inclusion in the
unit.7
We further note that the request for review here
does not expressly raise the issue of whether a dif-
ferent eligibility formula should be applied. Instead,
the request for review merely contends generally that
because the newly hired full-time and regular part-time
employees will diminish the need for use of casuals in
the future, the petitioned-for unit improperly includes
casual employees who work on a sporadic and inter-
mittent basis with no reasonable expectation of contin-
ued future employment. Thus, as the request for review
does not specifically allege that the Regional Director
296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Under the formula, employees are eligible to vote if they regu-
larly average 4 or more hours per week for the quarter prior to the
eligibility date. See, e.g., Davison-Paxon Co., 185 NLRB 21, 23–24
(1978); Allied Stores of Ohio, 175 NLRB 966, 969 (1969); and Mays
Dept. Stores Co., 175 NLRB 514, 517 (1969).
applied the wrong formula, or argue that a different
formula is necessary, the Board is not obligated to
reach the issue of whether a proper formula was ap-
plied in this instance, and on the state of this record
we do not consider it prudent to apply a different for-
mula.
Moreover, our dissenting colleague’s test, if applied
here, would potentially include employees who have
not worked many hours over the quarter prior to the
eligibility date, as compared to other excluded employ-
ees on the list who might have worked many hours.
For example, an employee working 46 hours in 1 week
who then works 1 hour each week for 6 additional
weeks, totaling 52 hours in the quarter preceding the
eligibility date, would be included under this formula,
while an employee who works 40 hours per week for
only 6 weeks, totaling 240 hours during the same pe-
riod, would be excluded. Thus, we think our col-
league’s proposed formula does not fairly measure an
employee’s regularity and continuing interest in em-
ployment.
Finally, the Board has been flexible in carrying out
its responsibility to devise formulas suited to unique
conditions in the entertainment industry, as in other
specialized industries, to afford employees with a con-
tinuing interest in employment the optimum oppor-
tunity for meaningful representation. See, e.g., Medion,
Inc., 200 NLRB 1013 (1972); American Zoetrope Pro-
ductions, 207 NLRB 621 (1973); Juilliard School, 208
NLRB 153 (1974). In Juilliard, the Board determined
that ‘‘casual’’ employees who would not have been el-
igible under a standard formula worked on a repetitive
basis and had a continuing interest in employment.
Therefore, the Board devised an inclusive–-not exclu-
sive–-eligibility formula to permit optimum employee
enfranchisement and free choice, without enfranchising
individuals with no real continuing interest in the
terms and conditions of employment offered by the
employer. We find that the Davison-Paxon formula ap-
plied in this case by the Regional Director also allows
for optimum employee enfranchisement and free
choice, but without permitting individuals to vote who
have no real continuing interest in the terms and condi-
tions of employment at the Taj.
For the reasons stated above, we conclude that the
Regional Director applied an appropriate eligibility for-
mula to determine whether employees on the casual
list maintained by the Employer should be included in
the unit. Accordingly, the Regional Director’s Decision
and Direction of Election is affirmed.
ORDER
This proceeding is remanded to the Regional Direc-
tor for further appropriate action, including the opening
and counting of the ballots cast in the May 20, 1991
election.
MEMBER RAUDABAUGH, dissenting in part.
I would grant review with respect to the proper for-
mula for determining the eligibility of on-call casino
technical employees and would direct the use of a for-
mula that includes recurrency of employment as a fac-
tor in determining eligibility.
The Employer maintains a list of about 40 individ-
uals who perform technical functions. It calls persons
from the list when there are not enough regular em-
ployees to do the work. When called to work, these in-
dividuals perform the same duties as the regular tech-
nicians. The Regional Director found that those on the
‘‘entertainment technicians’’ casuals list worked from
30 to 952 hours during 1990, and between 0 and 271
hours from January 1 to February 20, 1991. He found
that those on the 1990 ‘‘convention lounge technician’’
casual list worked from 4 to 1524 hours during 1990,
and from 0 to 287 hours from January 1 to February
20, 1991. The Regional Director noted that those on
the list were called to work on an intermittent and ir-
regular basis. He nevertheless concluded that they
should be found to be regular part-time employees if
they had worked for an average of 4 hours per week
for the last quarter prior to the eligibility date.
The Regional Director applied a formula long used
by the Board for determining whether an on-call em-
ployee has sufficient regularity of employment with an
employer to demonstrate a continuing interest in the
working conditions of that employer, which interest
would warrant their participation in a representation
election involving that employer.1 However, I do not
believe that the formula adequately serves its stated
purpose. The purpose of the test is to determine which,
if any, of the on-call employees share with the full-
time employees a continuing interest in the working
conditions of the Employer. In my view, the fact that
an employee averaged 4 hours per week during the last
quarter prior to the eligibility date does not per se es-
tablish a continuing interest in the working conditions
of the employer. For example, if the employee worked
52 hours during the first week of a 13-week quarter,
he/she would be eligible under the extant formula. In
my view, if the employee did not work again during
the quarter, the 52 hours of work would not, by itself,
constitute a sufficient basis for inclusion in the unit.
The missing factor is recurrency of employment.
Hence, I would require that employees average 4 hours
per week during the last quarter and I would require
that they work for some period during at least one-half
of the weeks in that quarter. In my view, this pattern
of employment in the workplace is a necessary pre-
297TRUMP TAJ MAHAL CASINO
2 If the employer hires in a seasonal pattern, different consider-
ations would be brought to bear.
requisite for finding that an employee has a continuing
interest in the working conditions of an employer.2 Ac-
cordingly, I would direct the use of the aforementioned
formula in the instant case.
As noted above, my colleagues in the majority base
their conclusion upon the so-called Davison-Paxon for-
mula. That formula, in turn, was based on two cases,
May Department Stores, supra, and Allied Stores of
Ohio, supra. In May Department Stores, the Board
simply noted that some of the ‘‘pink card’’ employees
were regularly scheduled to work for at least 4 hours
per week. Without further explication, and based solely
on this fact, the Board said that any ‘‘pink card’’ em-
ployee who regularly averaged 4 hours per week in the
preceding quarter would be eligible to vote. In Allied,
the Board, without any explication or citation, applied
the ‘‘4-hour’’ test to ‘‘status three’’ employees.
It was on these slender reeds that the Davison-Paxon
‘‘formula’’ was built. It seems to me that principles of
law should be based on more substantial grounds. The
rote citation to Davison-Paxon simply compounds the
original flaw.
In addition, my colleagues point out that, under my
formula, one employee would be eligible to vote, and
another would not, even if the first one worked more
hours than the second one. However, even under
Davison-Paxon, the sheer number of hours is not the
sole determining factor. The regularity of employment
is also a factor. Hence, my formula seeks to combine
the number of hours of employment and the regularity
of employment.