BPS Client Yonkers Raceway Prevails on Novel NLRB “Equitable Tolling” Issue

July 2010

BPS client Yonkers Raceway prevailed before Region 2 of the NLRB on the novel issue of whether the Board should apply the doctrine of “equitable tolling” to an otherwise untimely filed representation petition under the Board’s “contract bar” rule that had previously been timely filed by LEEBA with the N.Y.S. Employment Relations Board ("SERB") in June 2009. The issue arose after SERB decided to conduct a hearing in August 2009 concerning its continued jurisdiction over Yonkers Raceway’s newly expanded "racino" operations (i.e., combined casino and harness racing operations) based on 1997 NLRB precedent asserting jurisdiction over harness racing tracks that had been expanded to include casinos. After the hearing on the jurisdictional issue, SERB in October 2009 certified the issue for an advisory opinion from the NLRB in Washington, D.C. Yonkers Raceway and the incumbent union finalized a new three-year CBA in December 2009 through "good faith" bargaining after their prior agreement had expired on August 31, 2009.

After the NLRB rendered a May 2010 advisory opinion, 355 N.L.R.B. No. 35, that it would exercise jurisdiction over Yonkers Raceway's new "racino" operations (which had been expanded to include a N.Y.S. Lottery "casino" in October 2006), LEEBA filed a representation petition with the NLRB in July 2010. At a jurisdictional hearing held before Region 2 of the NLRB in July 2010, BPS partner Joe DeGiuseppe successfully argued that the NLRB should not apply the doctrine of “equitable tolling” to LEEBA’s newly filed petition in that LEEBA’s “inexcusable ignorance” of the above-stated 1997 Board precedent on exercising jurisdiction over "racinos," together with its knowledge gained from the August 2009 SERB hearing that Region 2 had previously exercised jurisdiction over Yonkers Raceway based on this 1997 precedent, did not warrant the application of this equitable doctrine. Region 2 therefore dismissed LEEBA’s representation petition under the NLRB's "contract bar" doctrine based on the CBA finalized in December 2009 between Yonkers Raceway and the incumbent union.