Exhibit
10.1


 


Agreement


 


This agreement entered
into this 7th day of January 2004, by and Mountaineer Park, Inc., a West
Virginia corporation, hereinafter referred to as the “Employer” and the Race
Track Employees Union Local No. 101 affiliated with the S.E.I.U. and
hereinafter referred to as Union.


 

















 


Article I – Location


 


1.1                                 The
terms and provisions of the Agreement shall cover only the work and operations
necessary to conduct live horse racing meets and importing of simulcasting held
by the Employer at its Mountaineer Park Race Track and Mountaineer Lodge,
located near Newell, West Virginia, as defined in Article II,
section 2.1 below, are covered by the terms and conditions of the
Agreement.


 


Article II -
Classification of Employees


 


2.1                                 The
terms and provisions of this agreement shall for all purposes supersede any and
all prior agreements between the parties and shall cover the following
employees of the Pari-mutuel department at Mountaineer Park, Simulcast Money
Room, Terminal Operators, Information Clerk, only the Video Lottery hourly
Cashiers employed in connection with the Riverside Gaming Terrace and Hollywood
Knights Gaming Terrace or those areas defined as track side.


 


2.2                                 No
mutuel clerk in any position at Mountaineer Race Track or Lodge shall be
required to perform any duty which is management or tote company duty, with the
exception of changing paper, without the written consent of the Union and paid
additive rate.


 

















 


Article III –
Reservation of Employer’s Rights


 


3.1                                 Except
as expressly modified or restricted by a specific provision of this Agreement,
Employer reserves the right in accordance with its judgment in connection with
its employees who are or will become members of said Union:


 


(a)                                  To
reprimand, suspend, discharge or otherwise discipline for just cause said
employees.


(b)                                 To
hire, promote, demote, transfer, lay off, and recall employees to work
(twenty-four (24) hour notice shall be given by Employer for lay off and
recall).


(c)                                  To
determine starting and quitting times and the number of hours and shifts to be
worked.


(d)                                 To
determine the competency of its employees based upon reasonable standards.


(e)                                  To
close down the Mountaineer Race Track or any part thereof.


(f)                                    To
expand, reduce, alter, transfer, assign, or terminate any job, operation or
service, within the Pari-Mutuel department (Upon the request by the Union,
Employer agrees to discuss and explain changes made).


In the
event of combining jobs from two or more job categories Employer agrees to
consult the Union.


(g)                                 To
make work assignments and determine the size and composition of the Pari-Mutuel
department.


(h)                                 To
promulgate, make or change, from time to time, reasonable rules, regulations
and practices not in conflict with the provisions of this Agreement; and


(i)                                     To
introduce new or improved machinery, systems and procedures affecting the
operations of the Pari-Mutuel department, direct its work force, and establish
terms and conditions of employment.


 

















 


Article IV.                                          Bargaining
Unit


 


4.1                                 The
Employer hereby recognizes Union as the exclusive bargaining agent for all
employees listed in Article II, section 2.1.


 


Article V.                                              Union
shop


 


5.1                                 It
is a condition of employment that the employees covered by this agreement on
and after thirty one (31) days worked following the beginning of their
employment with the employer must become and remain a member in good standing
of the union. For the first thirty  (30)
days worked the employee shall pay a permit fee to the union, which will be
used toward payment of the initiation fee if employee becomes a member. Said
initiation fee shall be paid in full prior to the employee continuing their
employment beyond six months of employee’s date of hire.


 


5.2                                 The
Union shall notify Employer in writing if any employee covered by this
agreement shall fail or refuse to render national or local union dues required
by the Union or if any employee shall fail or refuse to apply for membership in
the Union. This notice shall constitute a demand such employee be discharged,
and shall be dated and signed by the President of the Union, and within five
(5) days from the receipt of such notice, the Employer shall terminate the
employment of any employee who within such five day period shall have failed or
refused to render national or local union dues required by the Union or who
shall have failed to apply for membership in the Union.


 

















 


Article V – Union
Shop


 


5.3                                 If
in accordance and compliance with Section 5.2 of this Agreement an
employee is discharged by the Employer and it is subsequently determined that such
discharge was improper, the Employer shall not be required to pay such employee
for any work time lost or other damages because of the discharge. Any such
amounts to be payable due to such discharge shall be borne by the Union. The
Union agrees to indemnify the Employer for legal action incurred in connection
with any civil or regulatory action that arises from the Employers compliance
with Section 5.2 and 5.3


 


5.4                                 Union
agrees that membership in the union will be made available to all full and part
time employees as listed in Article II, section 2.1.


 


Article VI – Right
to Hire, Promote, Transfer, and Discharge.


 


6.1                                 As
previously provided herein the right to hire, promote, transfer, or discharge
employees covered by this agreement shall remain the sole prerogative of the
Employer; provided, however, that a discharge shall only be for just cause and
any grievance arising out of a discharge shall be adjusted in accordance with
the grievance procedures hereinafter set forth. The grounds for a discharge for
just cause and or disciplinary action shall include, but not limited to, such
rules and regulations as are promulgated and posted pursuant to
Article III, 3.1 (h).


 

















 


Article VIII –
Grievances


 


7.1                                 If
there arises any dispute or disagreement as to whether an employee, as listed
in Article II section 2.1, has been discharged by the Employer with
just cause, or if there arises any dispute or disagreement with respect to the
interpretation or any of the provisions of this agreement the following
procedure shall apply:


 


(a)                                  The
union retains the right to determine whether to proceed to arbitration with
respect to any grievance filed by employees named in Article II
section 2.1.


 


7.2                                 First,
within three (3) days from the date of the event or from the date the employee
should have had knowledge of the event the employee shall take it up with the
employee’s immediate supervisor. The immediate supervisor shall give the
employee the answer within (7) days from the verbal grievance.


 


7.3                                 If
the matter is not resolved at step 7.2, the employee and or the Union shall
submit the matter to the designated management representative in writing and
both shall meet within fourteen (14) days of receipt of the written answer. All
grievances arising out of a suspension or discharge or any policy grievance
shall be filed at step 7.3 within three (3) days of the occurrence or the day
the Union or employee had knowledge of the event.


 

















 


Article VIII –
Grievances


 


7.4                                 If
a satisfactory settlement is not reached within forty-eight (48) hours after
the meeting in section 7.3 then within seven (7) days thereafter either
party may submit the dispute or disagreement to arbitration in one of the
following methods:


 


(a)                                  the
party or parties aggrieved by the failure to reach a settlement may submit the
dispute or disagreement in writing to an arbitrator who shall be selected in
accordance with the rules and regulations of the American Arbitration
Association, and may make requests for a hearing, at which hearing either party
may appear and offer witnesses and other testimony. At such hearing the parties
may be represented by their counsel, who shall have the right to interrogate
the witnesses offered and either party may make written answer to the claim or
contentions of the other party. The Arbitrator may convene and recess hearing
from time to time as he in his discretion shall decide is necessary, proper,
and fair in order to give each party sufficient time properly and fully to
prepare and submit its or his case: or


(b)                                 Each
of the parties may within twenty-four (24) hours following inability to reach
an agreement, nominate one (1) person to a Board of Arbitration who shall
select a third person to serve on the Board with them. In the event the two
cannot agree on a third member, then the American Arbitration Service shall be
called on to select and provide a third member of said Board of Arbitration,
who shall serve as chairman of the Board.


 

















 


Article VIII –
Grievances


 


7.5                                 Either
party hereto shall have the right to decline the method selected by the
initiating party, in which event the dispute or disagreement shall be submitted
in accordance with the alternate method of arbitration set out above.


 


7.6                                 The
decision of the Arbitrator if method (a) is employed, or the majority decision
of the Board of Arbitration if method (b) is employed, shall be final and
binding on the parties hereto. Any arbitration awarded with back pay shall
reflect a deduction of all earnings or other monetary benefits which the
employee received while in the employ of another employer during the time
employee has not been working for the Employer herein by reason of employees
suspension or discharge by the Employer herein.


 


7.7                                 The
fees and expenses of the arbitrator or arbitrators shall be borne equally
between the parties.


 


7.8                                 Employer
shall initiate all discipline within fourteen (14) days of the infraction or
within fourteen (14) days of the discovery of the infraction provided Union
member is not on vacation, leave of absence or any other approved absence.


 


Article VIIII –
Strikes, Slowdown, and Work Stoppages, Etc.


 


8.1                                 The
Employer will not institute a lock out for any cause during the terms of this
Agreement.


 

















 


Article VIII.  Strikes, slowdown, and work stoppages, etc.


 


8.2                                 The
Union agrees that there shall be no strikes, work stoppages, informational
pickets, or interruptions impending work or abetting slowdown of work during
the terms of the agreement. No officer or representative or member of the
union, or employee shall authorize, instigate, participate in, aid or condone
any unauthorized activity, including any and all activity conducted by other
unions.


 


Article IX –
Seniority.


 


9.1                                 The
list of seniority shall be mutually agreed upon prior to the signing of this
agreement and agreed to list of dates shall apply to all provisions of this
contract. For purposes of all scheduling, promotion, layoff, recall seniority
shall be measured from the employees first day of work under the bargaining
unit.


 


(a)                                  A
newly hired employees probationary period shall consist of ninety (90) actual
days worked.


 


9.2                                 For
the purpose of determining whether an employee is eligible for vacations, any
scheduled work day that an employee does not work due to; leave of absence,
sick leave, that are granted pursuant to this agreement, shall not be counted
as scheduled workdays. Scheduled work days not worked, that are granted
pursuant to this agreement, for; jury duty as defined by the company’s
handbook, union leave approved by management, 
funeral leave, and vacation days shall be counted as days actually
worked.


 

















 


Article IX –
Seniority.


 


9.3                                 In
the event that an employee reports off, Employer will call out by seniority.
The first unknown vacancy requiring an additional employee, because of an
unexpected crowd will be filled from the bargaining unit, from a list of
employees that can report to work within fifteen minutes, this shall be limited
to twelve (12) times per year. All other vacancies requiring additional
employees will be filled by most qualified senior employees, from a list
provided by the union of employees willing to work. Extra work shall be
assigned by seniority


 


(a)                                  Employees
on said list that refuse work after three different attempts, that are
unexcused, names will go to the bottom of the call out list.


 


9.4                                 There
are currently windows known as I.R.S. windows, the mutuel clerks, who are
qualified with the most seniority, that have bid on these windows will be
assigned to these windows on a daily basis. The I.R.S. windows are required to
be the last windows to close. The clerks assigned to these windows will work
the entire shift, until the window closes for that shift.


 


9.5                                 In
the event of a promotion opportunity arises, which is defined as a job, listed
in Article II, section 2.1, having a higher pay rate, the job shall
be posted for no less than seventy-two (72) hours, in order for interested
applicants to apply for such a job in writing to Employer. The senior qualified
applicant will be given the promotion opportunity, taking into account prior
work record, mental ability and competence to do the work performed. During the
seventy-two (72) hour application period, employer shall have the right to
select an employee to fill the job vacancy. Employer shall review its reasons
for its selection with the union, upon request.


 

















 


Article IX –
Seniority.


 


9.6                                 An
employee promoted to a higher paying job will be given a thirty (30) calendar
day trial period and if he does not perform satisfactorily within that period,
he will return to his former job and rate of pay.


 


9.7                                 Lateral
transfers and work assignments within a job classification will be made at the
discretion of the employer for a good cause shown.


 


9.8                                 A
personal leave of absence without pay shall be granted on a non-discriminatory
basis for a period of up to one (1) year upon application to and approval of
the employer, and notice to the union, providing a suitable replacement is
available. There shall be no loss of seniority for an employee on a leave of
absence. Upon returning from a leave of absence, an employee shall not be
granted another leave of absence for at least (1) one year, from the date of
the employee’s return. Leave of absence for fraudulent purposes or alternate
employment may result in discharge. At the request of the Union and mutually
agreed with management, leave of absence shall be granted to an employee
required to be off to perform certain Union duties. All requests shall be
submitted one week in advance and shall specify the reason and time period for
the leave of absence.


 


9.9                                 Mountaineer
Race Track agrees to follow the Family Medical Leave Act. Mountaineer Race
track agrees to follow the Family Medical Leave Act to all union employees
having one year of service being treated as if having worked 1250 hours during
the prior year and otherwise being entitled to the protection of the Family and
Medical Leave Act


 

















 


Article IX
– Seniority.


 


9.10                           Seniority
will be terminated for any one or more of the following reasons:


 


(a)                                  Discharge
for just cause.


(b)                                 Resignation
– Retirement


(c)                                  Failure
to return at the end of an approved leave of absence or FMLA.


(d)                                 Layoff
in the excess of one (1) year.


 


9.11                           In the
event of a reduction of forces within a department, or a scheduled reduction of
hours within the Video Lottery department, the most senior employees will be
retained, provided those remaining have the qualifications, prior work record,
and mental ability and competence to do the work to be performed. Employees
eliminated from a department due to reduction in force, who are senior to
employees in another department, may replace such junior employees provided
they have qualifications, and have prior work record, and mental ability and
competence to do the work to be performed.


 


9.12                           The
company agrees to post additive positions. All employees who sign up and are
qualified will be added to the list in order of seniority.


 


9.13                           The
union shall be provided with union bulletin boards in each department.


 

















 


Article X –
Shortages.


 


10.1                           Each
employee shall pay for all shortages in tickets, or cash which are properly
established by any knowledgeable representative of the employer or by other
proper employee, or designated management representative who is assigned to
balance accounts of shortages. A charge of shortage shall be made as soon as is
practical after discovery and confirmation of same.


 


10.2                           Payment
of shortages shall be made immediately by the employee charged after notice to
employee of the amount and manner employed to establish the shortage or may be
otherwise agreed on between the employer and employee with notice to the Union.
Tote will not guarantee canceling of bets.


 


10.3                           No
employee charged with any shortage in their account shall be required to pay
the same in the event the shortage shall be the result of any of the following
situations:


 


(a)                                  When
tickets or money are altered, counterfeited, or forged, which are not readily
apparent to a person of the experience of the employee, subject to the
grievance procedure.


(b)                                 When
duress is directly applied in the form of a threat of bodily injury, or death,
or when deadly weapons in any form are presented, or when the threats of
inflicting the same.


(c)                                  Armed
robbery.


(d)                                 Physical
injury committed by a third person which injury is of such gravity as to
prevent ordinary resistance.


(e)                                  Loss
caused by failure of power, whether created by mechanical difficulties or act
of God, except in the event proper procedures to protect company assets were
not followed.


 

















 


Article X –
Shortages.


 


10.4                           Employees
shall pay their shortages which result from cashing of tickets, or from the
acceptance of money in payment of tickets sold, when tickets and money to  employee
are  obviously,
and apparently altered, counterfeited, forged, which alteration by mere
superficial inspection should have detected.


 


10.5                           After a
shortage has been paid by the employee charged, or the shortage is collected by
the efforts of the employer, then, and only then shall the employee charged
have the right to make the payment or collection of the shortage a subject of a
grievance which shall be processed as in the case of any grievance.


 


10.6                           Step
(1) - Any employee that has a shortage of $100.00 or more twice, in a calendar
year, may be suspended for a period of one week. Step (2) - If the same
employee has a shortage of $100.00 or more, two more times, in the same
calendar year then they may be suspended for two weeks. Step (3) - If after
Step (1) and (2) the same employee goes short again in the same calendar year
that employee may be terminated. Regardless employee is required to pay shortage
in a timely manner stipulated by management.


 


Article X I –
Reporting Time.


 


11.1                           The
reporting time for live racing shall be forty-five (45) minutes before the
first race. When an employee is designated to report at a specified time then
that employee’s starting time shall be that specified time. The regular
starting time for mini dealers and early counters shall be one hour and fifteen
minutes before the first race.


 

















 


Article X I –
Reporting Time.


 


11.2                           If an
employee reports to work at the regular starting time pursuant to a standing
order or in response to a request by the employer, and if there is no work
available for such employee, he shall be entitled to one-half (1/2) day’s
compensation for that day if there are no races scheduled that day.


 


11.3                           A card
of ten (10) live races shall constitute the basic day’s work. If that card is
not completed for any reason or cause other than that cause or result of any
action taken by pari-mutuel employee(s), those who work on such day shall
receive one half (1/2) of their daily base pay, if not more than five (5) races
are completed, and shall receive their full base pay for ten (10) races in the
event six (6) or more races on that card are completed. The daily base pay for
that day shall be set forth in Appendix B, hereto attached and herewith made a
part hereof. All terminal operators will sell all tracks.


 


11.4                           An
employee who is scheduled or notified to report and who does report to work,
shall be assigned to employees regular job, but if employees regular job is not
available employee shall be reassigned to another job of equal pay provided
that such other job is available and provided further that employee is
qualified to perform the work required of employee in the other job. If no
other job is available that provides pay equal to the pay of employees regular
job, or employee unable properly to perform the duties required in the other
job, then employee may at employees option be assigned to a lesser paying job
for which employee is qualified or be released from duty and credited with
reporting for duty and shall be paid a sum equal to one-half (1/2) day’s
compensation payable if employee had performed their regular job.


 

















 


Article X I –
Reporting Time


 


11.5                           The
Employer shall not be required under Section 11.4 above to pay said
one-half (1/2) day’s rate of pay for reporting if the employee is prevented
from performing or fails to accept the work assigned under the following
circumstances:


 


(a)                                  Strikes,
work stoppages in connection with any labor dispute, legal or illegal.


(b)                                 At
employee’s own request or due to employee’s own fault whether or not employee
was put to work at the beginning of employees reporting time.


(c)                                  Refusal
to accept assignment for which employee is qualified and which is equal or
higher pay than employees regular job.


(d)                                 When
notice not to report for work is received by the employee greater than one hour
and forty-five minutes prior to employees scheduled reporting time, except the
Video Lottery employees that work the first shift notice to these employees
will be one hour prior to scheduled time, the employee shall be deemed to have
received notice when communicated to employee by telephone call from any
official or agent of the employer, or by radio broadcast form a radio station
serving employees area of residence.


(e)                                  When
an employee has been absent from work and reports for duty without giving his
department supervisor notice of employees intention to report for duty at
employees regular job by 9:00 a.m. on the day of his return for night racing
and 9:00 p.m. the previous day for day racing. The department supervisor in
sole discretion may accept a lesser period of notice and direct employee to
report at a specified time or refuse to allow employee to work on that day.


 

















 


Article X II – Rules
and Regulations.


 


12.1                           Employees
shall be required to comply with the rules and regulations of employer made and
promulgated as is permitted in Article III, 3.1 (h) of this agreement.
Employer shall notify each employee in writing of its rules and regulations by
posting two or more copies thereof in conspicuous places on the grounds of the
employer, and by mailing a copy of the same to the Union.


 


12.2                           Employer
shall furnish special types of uniforms or other articles of dress. Employee will
be required to wear and maintain these articles of dress, unless marked
dry-clean only by manufacturer. Union will form a committee to meet with
management and agree on uniforms. Any employer uniform deposit policy enacted
by the company will also apply to the union employees hired after this contract
is ratified.


 


12.3                           Employees
shall be provided with free parking facilities during working hours in parking
spaces to be designated by employer. Employer agrees to assign track Security
to the general employees parking area. This area shall be adequately lighted.


 


Article X III –
Wages


 


13.1                           Employees
shall receive daily compensation in accordance with the rates of pay set forth
for the various job classifications listed in Article II section 2.1
of this agreement, as shown on Appendix A. If, during this Agreement an
additional job classification as listed in Article II, section 2.1
should be established, the rate of pay shall be determined by management. Then,
in such event the determination of such rate of pay shall be subject to the
grievance procedures contained in this agreement.


 

















 


Article X III –
Wages


 


13.2                           In the
event of death in an employee’s immediate family, which is defined as mother,
father, spouse, child or grandchild, brother, sister, grandparent,
mother-in-law or father-in-law, an employee will be reimbursed their base pay
rate for up to three (3) scheduled work days lost through the date of the
funeral.


 


13.3                           Employees
scheduled to work eight (8) hours or more shall be entitled to the Employer’s
meal policy.


 


13.4                           Employees
required to miss work because of jury duty shall be made whole by employer. The
employer shall pay the difference between the jury fee and the wages the
employee would have earned if he had worked.


 


13.5                           Employees
shall be entitled to one ten (10) minute break for each four (4) hours of
scheduled work. Employee shall be entitled to one half-hour lunch break if
employee is scheduled 7 1⁄2 hours or more.


 


13.6                           New
employees hired during the term of this agreement shall be paid 80% of the
wage, as set in the wage schedule for the probationary period listed in
Article IX section 9.1 (a).


 

















 


Article X IV –
Vacations.


 


14.1                           Employees
continuously employed for two years shall be entitled to vacation pays as
follows. Based on the previous calendar year.


 


20% of live racing days
equals (1) paid day.


40% of live racing days
equals (2) paid days.


60% of live racing days
equals (3) paid days.


75% of live racing days
equals (5) paid days.


 


Employees with five or
more years of seniority that have worked 75% or more of live racing days will
be given twice the amount of the two year entitlement. Employees with fifteen
or more years of seniority that have worked 75% or more of live racing days
will be given three times the amount of the two year entitlement No employee
will be entitled to more than fifteen vacation days.


 


14.2                           All
vacation requests must be submitted in writing by December 31. Vacation
scheduling will be based upon employee’s seniority, and at the discretion of
management. Once an employee has selected his vacation and the
schedule fixed, no changes based on seniority shall be permitted Vacations
will be employees base rate. Those employees who elect to take pay in lieu of
time off shall receive payment on the first payday after June 1st
of each year. Leave of absence obtained for cause other than illness totaling
more than three (3) months in a calendar year shall disqualify employees from
receiving vacation pays.


 

















 


Article X V –
Hospitalization and physician’s benefits.


 


15.1                           The
employer agrees during the terms of this agreement, to provide the employees
listed in Article II, section 2.1 of this agreement a health
insurance plan. However, the Employer reserves the exclusive right to select of
carrier and the exclusive right to select benefits. The employer agrees to pay
one-half (1/2) of the premiums charged to the employee for said health
insurance benefit plan for all employees and their dependants, who are working
for the employer, and in addition, will continue while employee is on approved
leave under FMLA guidelines. At the end of the FMLA leave, the employee shall
be able to maintain coverage under the hospitalization benefit plan so long as
employee pay the entire premium charge paid for such benefits. The employees shall
pay all of the premiums charged for their dependents or other beneficiaries
that the employee shall name under said health insurance plan. Employees may
purchase life insurance benefits at their own cost and may continue said
benefits after separation of employment due to illness by converting said
insurance to an individual policy and paying the entire premium thereof.


 


Article X VI – Non
discrimination.


 


16.1                           In
accordance with the law, the employer and the union agree that there shall be
no discrimination against any employee or applicant for employment because of
race, color, religion, gender, age, disability, or national origin.


 

















 


Article X VII


 


17.1                           This
agreement shall take effect December 31, 2003 and shall remain in full
force and effect until midnight on November 30, 2008. Either party may
give written notice to the other not later than sixty (60) days nor earlier
than ninety (90) days prior to November 30, 2008, of its intention to
modify orterminate this agreement. In the event no written notice is given as
prescribed by either party to the other, this agreement shall continue in
effect from year to year thereafter.


 


18.1                           Employer
agrees that if any new wager is instituted at its facilities employees shall
receive sufficient training and access to machines so that all employees are
properly trained for such new wager.


 


Article X IX


 


19.1                                Employer
agrees that should the controlling stock ownership of Mountaineer Park, Inc. be
transferred or sold, that such purchaser shall be obligated to the terms and
conditions therein, and as such this contract shall inure the benefits of any
such successors, and assigns hereto.


 


Article X X –
Agreement is exclusive.


 


20.1                           This
agreement includes the entire agreement between the parties hereto and
supersedes any former written or oral agreement between the parties.


 

















 


Article X XI.


 


The employer agrees that
the union may appoint two (2) union members to serve on the pension board.


 


In witness whereof, the
parties have executed this agreement this 7th day of
January 2004.


 


 


	
  Mountaineer Park, Inc.

  	
  Race Track Employees

  
	
   

  	
  Local 101

  
	
   

  	
   

  
	
  By:

  	
  /s/ Edson R. Arneault

  	
   

  	
  By:

  	
  /s/ Sherry Unger

  	
   

  
	
  Its: Edson R. Arneault,
  President

  	
  President