- 68 -
employees in order to assure a prompt and orderly response to
these situations.
We do not substitute our judgment for the business judgment
of petitioners' management to the effect that it was wise for
petitioners to give their employees free meals. Instead, we look
to the objective facts of this case and see that some, but far
from all, of petitioners' employees must be available during
their meal periods to respond to emergencies that could possibly
arise in petitioners' business. We find from the objective facts
of this case that petitioners' employees were hired mainly (if
not solely) to perform duties concerning the operation of a
casino in its regular course of business, and that petitioners'
past experiences indicate that the occurrence of a true
emergency, such as a fire or bomb scare, during petitioners'
operations is a rarity. The duties of very few of the employees
in dispute include responding to emergencies at the beck and
call of management.11 To the contrary, some of the labor
agreements state specifically that employees covered by those
11 The record includes a list of the essential job functions
for most of the employees at issue. Petitioners, however,
prepared this list after the subject years; petitioners did not
prepare or keep a contemporaneous written description of the
duties of each job classification during the subject years.
Given the additional fact that the record does not indicate the
extent to which the employees in each job description performed
these "essential job functions" during the subject years, or
whether any of the employees performed duties that were outside
these functions, we give limited regard to this list. We note,
however, that the list states that only the Lead PBX Operator,
PBX Operator, and Maintenance Engineer perform certain duties in
the case of an "emergency".
Page: Previous 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 NextLast modified: May 25, 2011