Boyd Gaming Corporation, F.K.A. The Boyd Group and Subsidiaries - Page 68

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          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".                                                 


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Last modified: May 25, 2011