On Application for Enforcement of an Order of the National Labor Relations Board (4-CA-20627).
Before: Stapleton, Roth and Lewis, Circuit Judges.
STAPLETON, Circuit Judge:
The National Labor Relations Board (the "Board") petitions for enforcement of its order directing Trump Taj Mahal Casino Resort (the "Taj Mahal") to cease and desist from its refusal to recognize and bargain with the International Alliance of Theatrical Stage Employees, Local 917, and the International Union of Operating Engineers, Local 68A (jointly, the "Union") in violation of 29 U.S.C. §§ 158(a)(5) and (1). The order also directs the Company, upon request, to bargain collectively with the Union and to post a remedial notice. In issuing this order, the Board treated its determination of the appropriate composition of the bargaining unit seeking representation as determinative of whether the Company violated 29 U.S.C.
§§ 158(a)(5) and (1) by refusing to recognize and bargain with the Union. Accordingly, we will shall focus on the Board's determination of the appropriate bargaining unit. I.
The Taj Mahal is a hotel and casino in Atlantic City, New Jersey, that regularly provides shows, acts, parties and other entertainment for its patrons. The Taj Mahal employs a number of "entertainment technicians", who help in the production of the entertainment. Their tasks generally include, inter alia, the loading and unloading of equipment for a show, the operation of that equipment during a show, and the management of stage props and settings. The Taj Mahal also employs a number of ticket takers, ushers and box office clerks in its entertainment department.
The Taj Mahal opened on April 2, 1990. At that time it employed eight full-time entertainment technicians and frequently used the services of a group of on-call technicians.*fn1 These on-call technicians performed substantially the same tasks as the full time technicians. They received a higher hourly wage than full time technicians, but they received no fringe benefits.
After some Discussion about how to make its entertainment division more cost effective, Taj Mahal's management determined that it would be more efficient to increase the number of regularly employed technicians and thereby decrease its need for on-call employees. Accordingly, on March 1, 1991 the Taj Mahal increased its full time entertainment technician staff from eight to twenty-eight, and also took on ten regular part-time employees who were to work 24 to 30 hours per week.
On February 28, 1991, the Union submitted a representation petition to the Board, seeking to represent "all full time and regular part time entertainment and audio visual technicians and group leaders employed by the employer at its Atlantic City, New Jersey facility." (App. at p.13.)
The Regional Director of the Board conducted a representation proceeding on March 22, 1991. At that proceeding the Taj Mahal argued both that the appropriate collective bargaining unit should include the regularly employed ticket takers, ushers and box office clerks, and that the appropriate collective bargaining unit should exclude all on-call technicians. In support of their claim that the on-call technicians should be excluded from the unit, the Taj Mahal argued that, given the recent and dramatic increase in full time and regular part-time workers, the on-call technicians could not reasonably expect to receive sufficient future employment to place them in a community of interest with the full time and regular part-time technicians who properly belonged in the unit.
The Regional Director, in an opinion released on April 19, 1991, held that the entertainment technicians perform a type of work that is entirely different from the work of ushers, ticket takers and box office workers, and so the technicians properly constituted a separate unit. He further held that the collective bargaining unit should include both full time and "regular part-time technicians", defining the latter category to include those on-call technicians who had worked an average of four hours a week during the preceding quarter. The opinion of the Regional Director notes the Taj Mahal's substantial increase in its staff of regular entertainment technicians on March 1, 1991 and the testimony of the Taj Mahal's stage manager that "the number of hours worked by casuals will decrease in the future and . . . that casuals will work from once or twice a month to once every two or three months." (App. at. p.40.)
The Board limited its review of the Regional Director's decision to the issue of whether the unit approved by him improperly included some on-call technicians. The Board thus affirmed, sub silentio, the Regional Director's Conclusion that the ticket takers, ushers, and box office clerks did not belong in the same unit with the entertainment technicians.
The Board initially noted that, 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." (App. at p.113A, emphasis in original.) Observing that there was no dispute that the on-call employees in this case performed unit work, the Board moved to a consideration of the regularity of their employment. It concluded that the Regional Director, by including in the unit only those on-call employees who had worked an average of four hours a week during the prior three months, had satisfactorily provided for regularity of employment and a community of interests on the part of those in the bargaining unit. The Board noted that the Regional Director's definition of ...