NOTICE: This opinion is subject to formal revision
before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Trump
February 17, 2009
DECISION, ORDER, AND DIRECTION OF SECOND ELECTION
By Chairman Liebman and Member Schaumber
On July 18, 2008, Administrative
Law Judge Earl E. Shamwell Jr. issued the attached decision. The Respondent/Employer
(the Respondent) filed exceptions and a supporting brief. The General Counsel and the Charging
Party/Petitioner (the
The National Labor Relations Board1 has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions, as modified herein, and to adopt his recommended Order as modified and set forth in full below. 3
This consolidated unfair labor practice and representation
proceeding arises out of the Union’s organizing efforts at the Respondent’s casino
in Atlantic City, New Jersey, in the spring of 2007. The Board conducted an election on May 11,
which the
We reverse the judge’s dismissal of the allegation that
the Respondent violated Section 8(a)(1) when Supervisor Mike Ferrare twice
stated to Spina that management would not negotiate with the
Finally, for the reasons stated by the judge, we adopt his dismissal of all of the other alleged 8(a)(1) violations.8 Based on the violations and objectionable conduct that we have found, we agree with the judge’s recommendation to set aside the election results.
ORDER
The Respondent,
Trump Marina Associates LLC d/b/a Trump Marina Hotel Casino,
1. Cease and desist from
(a) Interrogating its employees about their union
membership, activities, sympathies, and support.
(b) Threatening
employees that supervisors would no longer grant employees’ requests for time
off, approve schedule changes, or correct no-call/no-show designations if the
employees selected the
(c) Threatening employees with loss of their jobs
if they select the
(d) Threatening employees that selecting a union
representative would be futile.
(e) Issuing disciplinary warnings and suspensions
to employees because of their support and activities on behalf of the
(f) In
any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action
necessary to effectuate the policies of the Act.
(a) Make Mario Spina whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the judge’s decision.
(b) Within 14
days of the Board’s Order, expunge from its records all references to the unlawful
warnings and suspensions issued to the discriminatee, Mario Spina, and within 3
days thereafter, advise him in writing that this has been done and that the
warnings and suspensions will not be used in any way against him.
(c) Preserve
and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including
an electronic copy of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of this Order.
(d) Within 14
days after service by the Region, post at its facility in
(e) Within 21 days after service by the Region,
file with the Regional Director for Region 4 a sworn certification of a
responsible official on a form provided by the Region attesting to the steps
that the Respondent has taken to comply.
It is further ordered that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
It is further ordered that Case 4–RC–21278 is severed and
remanded to the Regional Director for Region 4 for the purpose of conducting a
second election as directed below.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the
employees in the unit found appropriate, whenever the Regional Director deems
appropriate. The
Regional Director shall direct and supervise the election, subject to the Board’s
Rules and Regulations. Eligible to vote
are those employed during the payroll period ending immediately before the date
of the Notice of Second Election, including employees who did not work during
the period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an
economic strike that began less than 12 months before the date of the election
directed herein and who retained their employee status during the eligibility
period and their replacements.
To ensure that
all eligible voters have the opportunity to be informed of the issues in the
exercise of their statutory right to vote, all parties to the election should
have access to a list of voters and their addresses that may be used to
communicate with them.
Dated,
Wilma B. Liebman, Chairman
Peter
C. Schaumber, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National
Labor Relations Board has found that we violated Federal labor law and has ordered
us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not interrogate our employees about their union membership, activities, sympathies, and support.
We will not threaten
our employees that supervisors would no longer grant employees’ requests for
time off, approve schedule changes, or correct no-call/no-show designations if
the employees selected the
We will not threaten our employees that
selecting a union representative would be futile.
We will not threaten our employees with
loss of their jobs if they select the International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, AFL–CIO (the Union),
as their bargaining representative.
We will not issue disciplinary warnings
to our employees because of their support for, and activities on behalf of, the
We will not suspend our employees because
of their support for, and activities on behalf of, the
We will not in any like or related
manner interfere with, restrain, or coerce you in the exercise of the rights
set forth above.
We will make discriminatee Mario Spina
whole for any loss of earnings and other benefits he suffered as a result of
our unlawful action against him, with interest.
We will remove from our records all
references to the unlawful actions taken against the discriminatee, Mario
Spina, and advise him in writing that this has been done and that these actions
shall not be used against him in any manner in the future.
Trump
Barbara C. Joseph, Esq., for the General Counsel.
Brian A.
Caufield, Esq. (Fox Rothschild, LLP), of
Cassie
Ehrenberg, Esq. (Cleary & Josiein, LLP), of
DECISION
Statement of the Case
Earl E. Shamwell Jr., Administrative Law Judge. These consolidated cases were heard before me
on October 15–18, 2007, pursuant to an original petition for certification of
representative filed by the International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, AFL–CIO (the Union) in Case
4–RC–21278 on March 30, 2007, which petition sought recognition as bargaining
representative of a described unit of employees employed by Trump Marina Hotel
and Casino (the Respondent). On April
24, 2007, the Union filed an original charge against the Respondent in Case
4–CA–35334; on May 17, 2007, the Union filed an original charge against the
Respondent in Case 4–CA–35395. The Union
filed amended charges in Cases 4–CA–35334 and 4–CA–35395 on June 27, 2007,
against the Respondent; on July 2, 2007, the Union filed its second amended
charge against the Respondent in Case 4–CA–35395.
On May 17, 2007,
the
On July 19,
2007, the Acting Regional Director for Region 4 (the Region) of the National
Labor Relations Board (the Board) issued a complaint consolidating Cases
4–CA–35334 and 4–CA–35395 and scheduled a hearing on the matter for October 2,
2007.[1] On August 1, 2007, the Respondent filed its
answer to the consolidated complaint essentially denying the commission of any
unfair labor practices.
On August 29,
2007, the Regional Director for Region 4 issued a notice of hearing on the
On October 2,
2007, the Regional Director issued an amended consolidated complaint against
the Respondent. The Respondent filed its
answer in which it again essentially denied the commission of any unfair labor
practices.
The consolidated
complaint as amended alleges that the Respondent violated Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act) on numerous occasions during the
course of an organizing campaign conducted by the
At the hearing,
the parties were represented by counsel and were afforded full opportunity to
be heard, examine and cross-examine witnesses, and introduce evidence. On the entire record,[2]
including my observation of the demeanor of the witnesses and after considering
the posthearing briefs of the General Counsel, the Respondent, and the
Findings of Fact
i. jurisdiction
The Respondent,
a limited liability corporation, has been engaged in the operation of a hotel
and casino in
ii. the labor
organization
The Respondent
admits, and I find, that the
iii. the unfair labor
practice allegations; the
election objections
Preliminary Discussion of the Allegations
The consolidated
complaint, as amended (the complaint), alleges that the Respondent violated
Section 8(a)(1) of the Act on numerous occasions covering the period beginning
around mid-April through May 16, 2007.
The Respondent is alleged to have violated Section 8(a)(3) of the Act on
or about April 21–27, 2007. The charges
in question emanate from incidents allegedly occurring during the
Pursuant to a
Stipulated Election Agreement approved by the Regional Director on April 12,
2007, an election by secret ballot was conducted on May 11, 2007, in the unit
set forth in the aforementioned agreement.[3] The tally of ballots disclosed the following
results:
- approximate number of eligible votes 398
- void ballots
2
- votes cast for the [Union] 175
- votes cast against [the
- valid votes counted 358
- challenged ballots
2
- valid votes counted plus challenged
ballots[4] 360
The
The Board
conducted an investigation of the alleged preelection misconduct and during the
course thereof, and based on evidence obtained, determined that there was
additional unalleged conduct on the Respondent’s part which merited inclusion
in the objections because they raised substantial and material issues of fact.
The petitioner’s
objections, the supplemental objection, and the unalleged conduct are the
subject of and coincident with many of the unfair labor practice allegations
set out in the complaint, and in the discussions to follow will be dealt with,
where appropriate, jointly.
iv. applicable legal
principles and standards
The Unfair Labor Practice Principles
1. Section 8(a)(1)
Employer
interference, restraint, or coercion of employees who exercise their statutory
right to form, join, or assist labor organizations are unlawful under Section
8(a)(1) of the Act.[5] The test under Section 8(a)(1) does not turn
on the employer’s motive or whether the coercion succeeded or failed. The test is whether the employer engaged in
conduct which it may be reasonably said tends to interfere with the free
exercise of employee rights under the Act.
Gissel Packing Co., 395
It is well
settled that an employer’s interrogation of employees concerning their union
activities may be violative of the Act. Marjam Supply, 337 NLRB 337 (2001). Hudson
Neckwear, Inc., 302 NLRB 93 (1991).
Among the circumstantial factors examined are the background of the
interrogation, the nature of the information sought, the identity of the questioner,
and the place and method of interrogation.
MSK Corp., 341 NLRB 43 (2004);
The Board has
found that threats of job loss may violate Section 8(a)(1) because of the
reasonable tendency of such statements to coerce employees in the exercise of
their Section 7 rights. Clinton Electronics Corp., 332 NLRB 479
(2000). S & M Grocers, Inc., 236 NLRB 1594 (1978); Hinky Dinky Supermarkets, 247 NLRB 1176
(1980), affd. 636 F.2d 231 (8th Cir. 1980).
The Board has
found that Section 8(a)(1) may be violated by an employer’s threats to
employees of unspecified reprisals. St. Margaret Mercy Health Care Centers,
350 NLRB 203 (2007); California Gas
Transport, Inc., 347 NLRB 1314 (2006).
On the other hand, the Board has found that an employer may violate the
Act by promising employees benefits of a specific or unspecific nature. Mickey’s
Linen & Towel Supply, 349 NLRB 790 (2007); Christopher Street Corp., 286 NLRB 253 (1987).
Regarding the
issue of employee discussions about and solicitations on behalf of unions, the
Board recently held and reaffirmed that:
It is well established that employees are entitled to discuss
unions and solicit for unions on nonworking time, unless the employer can show
that it needs to limit the exercise of that right in order to maintain
production or discipline. Republic Aviation Corporation v. NLRB,
324
In Sam’s Club, 349 NLRB 1007 (2007), the
Board also (in fn. 11) noted as follows:
Conversely, it is clear that en employer may lawfully prohibit solicitation during working time. See Our Way, 268 NLRB 394 (1983). Further, retail employers, such as the Respondent, may lawfully prohibit employees from soliciting on the selling floor—even during the non-work time of employees—because active solicitation in a sales area may disrupt a retail store’s business. See, e.g., J. C. Penny Co., 266 NLRB 1223 (1983). Marshall Field & Co., 98 NLRB 88 (1952), modified on other grounds and enfd. 200 F.2d 375 (7th Cir. 1952). The Board, however, has not allowed these restrictions on solicitation to be extended beyond that portion of the store that is used for selling purposes. See Gallup, Inc., 349 NLRB No. 113 [1213] (2007), and, e.g., McBride’s of Naylor Road, 229 NLRB 795 (1977).[7]
It is well
settled in Board law that an employer is free to predict the economic
consequences it foresees from unionization, so long as the prediction is:
carefully
phrased on the basis of objective fact to convey [its] control. . . . If there is any implication that an employer
may or may not take action solely on his own initiative for reasons unrelated
to economic necessities and known only to him, the statement is no longer a
reasonable prediction based on available facts but a threat of retaliation . .
. without the protection of the First Amendment. [NLRB
v. Gissel Packing Co., 395
Absent the
necessary objective facts, employer predictions of adverse consequences arising
from unionization are not protected by Section 8(c), rather they constitutes
threats that violate Section 8(a)(1). Homer Bronson Co., 349 NLRB 512 (2007).
An employer who
indicates that it would be futile for employees to select a union to represent
them because the employer will not negotiate with that union if it is voted in
may violate the Act. Ready Mix, Inc., 337 NLRB 1189, 1190
(2002); Well Stream Corp., 313 NLRB
698, 706 (1994).
An employer may
violate the Act if its supervisors tell employees of the adverse effects on
management—employee relations if the union is brought in. In Re
For example, in St. Vincent’s Hospital, 244 NLRB 84, 92
(1979), the employer’s supervisors told employees that if the union were voted
in, they would lose access to them, to include loss of immediate consideration
of employee requests for time off for emergency reasons or personal assistance,
and vacation switches; a violation of the Act was found by the Board. Also, in Baptist
Medical Center, supra, the Board found that an employer violated Section
8(a)(1) by threatening employees with loss of jobs and by telling them that
supervisors would have less flexibility in handling their concerns if the union
were to come in.
Similarly, in Orange County Publications, 334 NLRB 350
(2001), a violation of the Act occurred because the employer told its drivers
that based on unionization, it would discontinue a past practice of finding
work for them to enable them to maintain full-time status.[8]
Finally, the
Board has also found violative of the Act an employer’s closing of a facility
to discourage employees from supporting the union, and limiting the employees’
contact with the
While Section
8(a)(1) prohibits certain speech and conduct deemed coercive, employers are
free under Section 8(c) of the Act to express their views, arguments, or opinions
about and regarding unions as long as such expressions are unaccompanied by
threats of reprisals, force, or promise of benefits. NLRB V.
Gissel Packing Co., 395
In fact, the
Board as determined that even “intemperate” remarks that are merely expressions
of personal opinion are protected by the free speech provisions of Section
8(c). International Baking
Consistent with
an employer’s right to express its opinion, the Board permits the employer to
distribute antiunion materials, as long as there is no coercion. In Re
Allegheny Ludlem Corp., 333 NLRB 734 (2001).
However, an
employer may violate the Act by asking employees to read union literature and
soliciting their views about the material in an attempt to ascertain the
employees’ views of the union.
2. Section 8(a)(3)
In Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging violations of
Section 8(a)(3)[10] or violations
of Section 8(a)(1)[11]
turning on employer motivation. First,
the General Counsel must make a prima facie showing sufficient to support the inference
that protected conduct was a motivating factor in the employer decision. This showing must be by a preponderance of
the evidence. Then, upon such showing,
the burden shifts to the employer to demonstrate that the same action would
have taken place even in the absence of the protected conduct. The Board’s Wright Line test was approved by the United States Supreme Court in
NLRB v. Transportation Management Corp.,
462 U.S. 393, 399–403 (1983).
Under the Wright Line framework, the General Counsel
must establish four elements by the preponderance evidentiary standard. Accordingly, the General Counsel must first
show the existence of activity protected by the Act, generally an exercise of
an employee’s Section 7 rights.[12] Second, the General Counsel must show that
the employer was aware that the employee had engaged in such activity. Third, the General Counsel must show that the
alleged discriminatee suffered an adverse employment action. Fourth, the General Counsel must establish a
link or nexus between the employee’s protected activity and the adverse
employment action. If the General
Counsel establishes these elements, she is said to have made out a prima facie
case of unlawful discrimination, or a presumption that the adverse employment action
violated the Act.[13]
The Respondent,
in order to rebut this presumption, is required to show that the same
action—the adverse action—would have taken place even in the absence of
protected activity on the employee’s part.
Mano Electric, Inc., 321 NLRB
278 (1996); Farmer Bros., 303 NLRB
638 (1991).
While the Wright Line test entails the burden
shifting to the employer, its defense need only be established by a preponderance
of evidence. The employer’s defense does
not fail simply because not all of the evidence supports, or even because some
evidence tends to negate it. Merrilat Industries, 307 NLRB 1301, 1303
(1992).
It is worth
noting that proving discriminatory motive and animus is often elusive. Accordingly,
the Board has held that an animus or hostility toward an employee’s protected
and concerted activity or union activity may be inferred from all the
circumstances even without direct evidence.
Therefore, inferences of animus and discriminatory motive may derive
from evidence of suspicious timing, false reasons given in defense, failure to
adequately investigate alleged misconduct, departures from past practices,
tolerance of behavior for which the employee was fired, and disparate treatment
of the discharged employees. Adco Electric, 307 NLRB 1113, 1123
(1992); enfg. 6 F.3d 1110 (5th Cir. 1993); Electronic
Data Systems Corp., 305 NLRB 219 (1991); Bryant & Cooper Steakhouse, 304 NLRB 750 (1991); Visador Co., 303 NLRB 1039, 1044 (1991);
and In-Terminal Service Corp., 309
NLRB 23 (1992).
The judge may
also consider prior unfair labor practices in resolving this issue, as well as
violations that have occurred before and after an election.[14]
3. The Board’s standard for sustaining the results
of an Election
In the context
of a representation election, the Board employs an objective test of the
conduct of a party charged with interfering with the employees’ freedom to
choose their representative. The
objecting party must show that, inter alia, the conduct in question affected
the employees in the voting unit and had a reasonable tendency to affect the
outcome of the election. Delta Brands, Inc., 344 NLRB 252 (2005);
Avante at
In determining
whether a party’s misconduct has the tendency to interfere with employees’
freedom of choice, the Board considers the following factors:
(1) the number
of incidents; (2) the severity of the incidents and whether they were likely to
cause fear among the employees in the bargaining unit; (3) the number of
employees in the bargaining unit subjected to the misconduct; (4) the proximity
of the misconduct to the election; (5) the degree to which the misconduct
persists in the minds of the bargaining employees; (6) the extent of dissemination
of the misconduct among the bargaining unit employees; (7) the effect, if any,
of misconduct by the opposing party to cancel out the effects of the original
misconduct; (8) the closeness of the final vote; and (9) the degree to which
the misconduct can be attributed to the party.[15]
Notably,
representation elections are not lightly set aside. NLRB v.
Hood Furniture Mfg., 941 F.2d 325, 328 (5th Cir. 1991); the burden of proof
is on the party seeking to set aside a Board-supervised election to show that
the conduct in question had a reasonable
tendency to affect the outcome of the election.
v. credibility issues
In the
discussion to follow, it will be obvious that the
Ordinarily, in
resolving credibility issues, the Board gives employees who testify against the
interest of their employee something in the way of enhanced credibility because
of the possible risks to their pecuniary interests in so testifying. However, in the instant case, the employees
who testified were strongly partisan in their support for the
vi. the unfair labor
practice charges; the union’s
objections; and the unalleged
determined by the region
As noted
previously, the Respondent allegedly has engaged in certain conduct that could
affect the results of the election.
These misconduct charges were made by the
A.
Complaint Paragraph 5(a); Objection 5
Floor person
Michael Ferrare’s alleged threat on or about mid-April 2007 that employees
would lose their jobs if they selected the
The General
Counsel called Mario Spina to establish these charges.
Spina testified
that he has been employed by the Respondent for about 20 years as a full-time,
day-shift dealer; he described himself as an active union supporter before and
during the
Spina related
that in the employee cafeteria, as he attempted to approach another fellow
dealer about supporting the Union, he engaged in a conversation with Michael
Ferrare, whom he described as a full-time floor supervisor during the
Spina stated
that on this occasion, Ferrare joined him and said that a lot of dealers are
going to lose their jobs if all the dealers go full time “as per the union.” Spina stated that Ferrare went on to say that
with union representation all dealers would be full time, so a lot of the
(part-time) dealers would lose their jobs because there were not enough
full-time positions available at the casino for everyone to be full time.
Spina said that
at the time he understood that among the group of dealers who would be voting
in the election, there were about 170 full-time dealers and about 230 part-time
dealers on all three shifts operated by the casino.
According to
Spina, he understood Ferrare to be saying in essence that under these circumstances,
the casino could not make all 400 dealers full time, so jobs would be lost if
the Union were selected.
Spina testified
that he could not recall his specific response to Ferrare’s comments as the
conversation went back and forth (with no conclusion as such).[16]
The Respondent
called admitted Supervisor Michael (Mike) Ferrare to rebut these allegations. Ferrare testified that he has been employed
by the Respondent for 22 years; his current position is floor person, a
supervisory position at the casino.
Ferrare stated he held this position during the union organizing campaign
of which he was fully aware.
Ferrare stated
that he knew Spina personally, has had conversations with him and knew that
Spina was a well-known supporter of the
B.
Complaint Paragraph 5(c); Unalleged
Objectionable Conduct 1
Floor person
Michael Ferrare’s alleged threat on or about April 19, 2007, that selection of
the
The General
Counsel also called Spina to establish these allegations.
Spina said that
he had a second conversation with Ferrare but could not recall the date;
however, he noted that the conversation occurred before the election, a few
days before his suspension on April 21, 2007.
Spina explained
that on the day in question, he was dealing a poker game and the sole casino
patron on the game asked him, “Are you guys going union?” Spina said he tried to shrug off the query to
keep the game moving, but the customer continued and a back and forth
discussion about the
Spina testified
that in such conversations, his usual or “stock” response is, “It’s all in the
contract,” but could not recall whether he responded as such to Ferrare’s
comments on this occasion. Nonetheless,
according to Spina, Ferrare repeated the assertion that management would not
negotiate with the
Ferrare
testified at the hearing and denied ever telling any employee that management
would not negotiate with them or give them anything.
Ferrare
acknowledged that he did have a conversation in mid-April 2007 with a dual-rate
supervisor[17] in
which the dual rater asked what Ferrare thought would happen to dual-rate supervisors
should the Union come in. Ferrare said
that he told the employee that he did not know, but volunteered his opinion
that management could either maintain the dual-rate position, promote the dual
rater to a full-time supervisory position or demote the employee to a full-time
dealer position; that such moves would depend on the contract negotiations with
the Union; and that no one knew otherwise where the dual-rate supervisor
(position) would end up.[18] Ferrare, however, insisted he had no
conversations regarding the topic of negotiations with Spina either alone or in
the company of anyone else.
Regarding the
Ferrare allegations and related objections, I would find and conclude first that
I believe Ferrare made the statements attributable to him. Spina presented as a highly credible witness
who testified calmly and in a straightforward way. On the other hand, Ferrare was less credible
and his denials seemed to be rather hollow.
In fact, he admitted having a “conversation” with Spina (presumably
about the
However, in
context, I cannot find that Ferrare violated the Act, nor was his conduct
sustainably objectionable. It should be
noted that Spina was a well-known and active union supporter, and the issue of
what would happen to the part-time dealers if the Union were voted in was a
topic of conversation among the both management and the dealers; and there were
opinions being bandied about by the employees, including management. Ferrare merely expressed his opinion to Spina
in my view. Ferrare’s futility of
selection of the union statement was, of course, the more serious allegation
and if the circumstances surrounding its making were different, I would be persuaded
to find a violation. However, again, the
statement was made to Spina who clearly was unimpressed with Ferrare’s
statement and who gave him his stock reply.
Granted, the Board does not require an offending statement to have an
effect on the employee to whom it was directed.
However, it would be my view that any reasonable employee standing in
Spina’s shoes would not believe his rights were interfered with because as
Spina stated, “It’s all in the contract,” and would, as Spina did, disregard
Ferrare’s mistaken notion of the collective-bargaining process.
I would
recommend dismissal of these allegations.
I would also not recommend that the associated objection be sustained.
Floor Person
Michael Ferrare’s alleged advising on May 13, 2007, an employee (Spina) not to
worry about an incident report and suspension notice because the
Spina testified
that the Respondent suspended him on April 21, 2007, pending investigation of
his allegedly having engaged in improper conduct. Spina said he lost 3 days of work and was
called back to his job on April 26.
Spina stated
that he served as a union observer for the election that took place on May 11,
2007. Spina said that the
Ferrare
acknowledged that after the election, he discussed Spina’s suspension with him
as well as the associated incident report.
However, Ferrare denied telling Spina not to worry about his incident
report or the suspension notice because the
Ferrare
explained that after the election, he was supervising the casino floor
operations to which Spina was assigned and noticed that Spina seemed a little upset,
which prompted him to inquire whether he was okay. According to Ferrare, Spina said that he
feared for his job because of his earlier suspension. Ferrare said that he told Spina not to worry,
that Spina had basically served the suspension, not to worry about it and put
the matter behind him; the incident was done and over with. Ferrare stated that he told Spina that he had
also once served a 3-day suspension, and had put the matter behind him. Ferrare said that he suggested to Spina that
he do the same.
Ferrare
volunteered that he had no authority to remove an incident report from an employee
file or to convert a suspension to a lesser discipline, such as a warning.[19]
The General
Counsel contends that Ferrare’s statements were tantamount to the Respondent’s
prediction of adverse consequences for Spina because of his union activity and
reflected the Company’s attempt to discourage and intimidate Spina regarding
his support of the
In my view,
Ferrare credibly testified that he was merely trying to console Spina and
assuage his concerns for his job. Notably,
Spina admitted that he was indeed troubled over the election results and the
fact that his suspension was issued in the context of the unsuccessful
campaign. Ferrare testified that in his
attempt to console Spina he told him that he, too, had been suspended and had
put the matter behind him. In this case,
as I see the matter, Ferrare, out of sympathy, was merely expressing his opinion
that Spina had nothing to worry about regarding his suspension, that the
discipline based on his (Ferrare’s) experience would have no effect on his
continued employment. I would recommend
dismissal of this charge.
D.
Complaint Paragraph 5(f); Unalleged
Objectionable Conduct 3
Pit Boss Dan Cummings’
alleged interrogation on or about April 25, 2007, of an employee concerning the
employee’s sympathies for the
The General
Counsel called Kathy Perakovich, a full-time dealer, regarding this allegation
of objectionable conduct by the Respondent.
Perakovich
testified that she is currently employed by the Respondent as a blackjack
dealer and has been employed with the casino since 1985.
Perakovich
stated that she was aware of the
Perakovich
related an incident involving herself and Pit Boss Dan Cummings on or about
April 25, 2008. According to Perakovich,
Cummings approached her and asked her if she had attended any of the union
meetings to which she responded that she had not.
Perakovich said
that Cummings also asked her if she could attend union meetings with an open
mind, to which she responded that she could.
Cummings then remarked that he was glad to hear that she had an open
mind about the meetings.
Perakovich
stated that Cummings also in this conversation rhetorically asked her what made
her think that Trump would bargain with a union. Perakovich said she and Cummings also talked
about matters somewhat related to the
Perakovich noted
that management conducted several mandatory meetings with employees after April
25, but that she was not invited to attend any such after her conversation with
Cummings on April 25.
Admitted Supervisor
Dan Cummings testified that he has been employed by the casino since 1985, and
during the time frame of the campaign he served as a pit manager, a position
which includes supervising and managing an area, a pit, containing 12–24 games
of chance played by the dealers,[21]
including Kathy Perakovich.
Cummings stated
that he was aware of the union organizing drive that was afoot on April 25,
2007, and admitted that he conversed with Perakovich whom he has known for
about 22 years on that day. However,
Cummings denied asking her whether she attended any union meetings concerning
the organizing effort. Cummings admitted
that he did ask her if she had any questions about the informational meetings
convened by the Company because he thought that she had attended one of these
meetings. Cummings also denied saying to
Perakovich, “What makes you think the Company will bargain with the
Cummings stated
that his conversation with Perakovich initially was about the National
Basketball Association, which was normal as he and she have enjoyed a friendly
working relationship over the years; they have had many conversations, mainly
about sports.
According to
Cummings, although Perakovich told him that she had not been to any of the
informational meetings, he believed that there was misinformation about the
bargaining process being bandied about the casino. Acting on this concern, Cummings said he
tried to clarify the issues by informing employees that while the Company was
required to bargain, there was no requirement that an agreement be
reached. Cummings stated that in his
view, there was also a perception among the employees that they could only get
more benefits with a union in place and not get less. Cummings stated that he wanted to correct
this misconception and advise employees that in the negotiations process the
employee could go “backwards” in terms of benefits and other terms and
conditions of employment.
Cummings noted
that in his conversations with Perakovich, he concluded that she was a union
supporter and she seemed to believe that the dealers could only go forward in
terms of job benefits through union representation; and, therefore, there was
no reason not to support the
With regard to
this allegation, the matter presents with an essentially one-on-one
encounter. Perakovich, an ardent union
supporter, claimed that Cummings, a supervisor clearly in opposition to the
union cause, made certain statements which certainly could pose a violation of
the Act and are arguably reflective of objectionable conduct affecting the results
of the election. However, Cummings
denied making the statements attributable to him.
Notably,
Cummings also elaborated about the nature of his relationship with Perakovich,
a friendly 22-year work relationship that included many conversations, including
one in which he expressed his view that the employees may have had a wrongful
understanding of the nature of union representation, and he sought to disabuse
the employees, possibly even including Perakovich, of this notion. Of course, this reflected Cumming’s personal
opinion which he evidently provided to employees like Perakovich. I believe that he was entitled to express
those views under the Act, especially since there was no threat implied or
expressed in his statement to her.
Regarding the
allegations that Cummings interrogated Perakovich about her union sympathies
and also indicated to her that it would be futile for them to pursue union
representation, I cannot find and conclude that he made these comments to
Perakovich. On this score, Cummings
testified matter-of-factly and seemed no more or less credible than
Perakovich. Accordingly, the evidence being
in equipoise, I would find and conclude that the General Counsel did not meet
her burden of preponderance. I would
recommend dismissal of this charge, and would not sustain the associated
objection.
E.
Complaint Paragraph 5(e); Objection 4
Pit Boss Dan
Cumming’s allegedly telling an employee on April 22, 2007, on the floor of the
casino, “We got your union boy, Mario.
We got your boy. He is suspended.”
The General
Counsel called Lori Ann Ludovich in support of this allegation.
Ludovich
testified that she has been employed by the casino as a full-time dealer for
about 19 years. Ludovich stated that she
became aware of the organizing drive through union flyers at the premises. Ludovich said that she became interested in
the effort and was told by an associate that Mario Spina, a dealer on the day
shift, was a good source of information about the Union—he knew what was going
on with the
Ludovich related
an incident that she said occurred near the employee cafeteria on April 21,
2007, a Saturday. According to Ludovich,
she overheard a conversation between Spina and a supervisor, Frank Mangione, as
she entered the area leading to the cafeteria.
According to Ludovich, Mangione said in a loud voice to Spina, “Have I
ever disrespected you.?” Ludovich stated
that Spina responded (calmly), “No, you haven’t.” Ludovich said that she stood there listening
for a few seconds—mainly because Spina, Mangione, as well as two other employees,
Angel Martinez and Frank Dante, were blocking the entrance to the cafeteria—and
then excused herself to get by to go to the cafeteria.[23]
Ludovich said
that on the next day, April 22, a Sunday as she recalled, between 4–5 or 5–5
p.m. as the baccarat pit was closing, Pit Manager Dan Cummings ran up to her
and said, “Oh, we got your guy, we got your guy—he’s suspended.” Ludovich said she responded by asking who it
was. Cummings said, “We got him, we got
Mario. We got your union guy” [or your
union boy] or words to that effect.
Ludovich noted that other employees were in the vicinity when Cummings
made his comments, but she could not recall their names. According to Ludovich,
the baccarat pit is played by the “high rollers” and there were always people
standing around the area. At the time,
Ludovich said she was assigned to a game that at the time was closed; but there
were also customers around and Cummings’ remarks were loud enough for them to
hear because (as she put it) his remarks were uttered “loud and proud.”
Ludovich noted
in passing that at the time Cummings made his remarks, she had heard through
the other dealers that Spina had been suspended; Cummings simply verified the rumor.
Cummings
testified that he knew Ludovich and was working on April 22, his wedding
anniversary, supervising two pits as he customarily does on Sundays. Cummings emphatically denied saying to
Ludovich or anyone else that we’ve got your union boy, Mario and that he is
suspended. Cummings testified that on
that day, he did not have a lot of conversations with anyone.
Cummings
acknowledged that he knew that Spina was one of the “leading people” for the
At the threshold
of resolving this allegation is the determination of whether Cummings made the
statement attributed to him by Ludovich.
I found Ludovich to be a very credible witness. She testified in a
matter-of-fact way, straightforward with a good command of facts. She did not overstate or hyperbolize in
reciting her version of events. Although
she was a union supporter, she did not come off as extremely partisan. Be that as it may, Cummings, who admittedly
simply denied making the statements in question to Ludovich, was not incredible
in my view. Here again, in a one-on-one
confrontation, I cannot find that Ludovich was more credible than Cummings.
Accordingly, the evidence being in equipoise, the General Counsel did not meet
her burden of proof. I would recommend
dismissal of the allegation, and that the objection in question not be sustained.
F.
Complaint Paragraph 5(g); Unalleged
Objectionable Conduct 3
Floor Supervisor
Linda Sych’s alleged interrogation in the employee cafeteria around the end of
April 2007 of an employee’s sympathies for the
Regarding these
allegations, the General Counsel called blackjack dealer and current 19-year
casino employee Diane Rieck.
Rieck testified
that she works the day shift and became aware of the union organizing drive,
and later the May 11, 2007 election, through Mario Spina who solicited her interest
in the
Rieck said that
she was eating lunch that day and Sych asked her on which side she was. Rieck testified that she responded, “I’m for
the union,” and told Sych to hold her breath, not to say anything else, because
she was for the
Linda Sych was
called by the Respondent to rebut these charges. Sych testified that she has been employed by
Trump Marino for about 15 years; her current position is that of a game
supervisor who directly supervised Rieck.
Sych admitted
that she had a “10-second” conversation with Rieck before work at about 11 a.m.,
in the employee cafeteria. Rieck noted
that she and Rieck have worked together off and on for 15 years and have
conversed during this time about various topics such as family, their kids, and
grandchildren.
On the day in
question, Sych testified that as she and Rieck were seated together having
breakfast, she just asked Rieck “out of the blue” whether she had any
questions; did she do her homework (about the Union).
Sych said that
she did not use the word union regarding the homework query. However, her intention was to open lines of
communication with respect to the union matter and her questions to Rieck were
directed along those lines. According to
Sych, she was simply asking Rieck whether she had looked into “everything” she
needed to make a decision about the Union; Sych insisted she was not trying to
determine if Rieck was for the Union.
However, Sych conceded that she did ask Rieck whether she had any
questions about the
According to
Sych, Rieck said this place (the casino) hasn’t done anything for her, and that
was the end of the conversation. Sych
denied asking Rieck what side she was on or whether she favored the
Again, the
threshold inquiry is whether Supervisor Sych made the offending statement—questions—to
Rieck. While again, the conversation was
one-on-one, in this instance I would credit Rieck’s version of the encounter
that in their exchange Sych did ask (interrogate) her as to what side she was
on. I am persuaded to this finding
because Rieck presented in rather no-nonsense and matter-of-fact way. Sych’s version of the encounter left me with
questions. For instance, why would she “out
of the blue” ask Rieck any questions about the informational meetings held by
the Company, and had Rieck done her homework about the
Notably, Sych
admitted that she had initiated discussions in similar fashion (out of the
blue?) with two other dealers, asking them if they needed to talk and that she
could help. Sych did not elaborate about
what the questions were or the homework that needed to be done in her
conversations with Rieck or presumably other dealers she queried.
In my view, Sych’s
testimony bespeaks of a pattern of interrogation with a view toward her
determining the employees’ sentiments and sympathies regarding the
G.
Complaint Paragraph 5(m); Unalleged Objectionable
Conduct 4; Objection 14
Pit Boss Steven
Salvey’s alleged interrogation of an employee’s union sympathies on or about
May 11, 2007.
Ten-year current
employee Janet Edwards was called by the General Counsel to establish this
allegation.[26]
Edwards
testified that she was aware of the union organizing drive as well as the election
held on May 11, 2007, on which day she worked a normal tour at her assigned
gaming table.
Edwards stated
that on May 11, Pit Boss Steve Salvey suggested that the newspaper on the pit
stand should be read by the dealers and told dealers to read the newspaper before
they voted that very day. According to
Edwards, while Salvey told her to read the newspaper, she responded no, that
she already knew what was in the news.
According to
Edwards, Salvey pressed her, saying, “Do you want to read this—what do you
think about it?” Edwards said that she told Salvey that the news was propaganda,
and that is what she thought of it.[27]
Edwards said
that Salvey left the paper at the pit stand for 1–2 hours; he then folded it up
and handed it to another floor supervisor who took it away. She noted that
there were about 10–11 dealers working their games at the time and, as they
left the pit, Salvey asked about 5–7 of them to read the newspaper.[28] Edwards stated that the newspaper was placed
at the pit stand once the vote started.
Edwards said that Salvey did not really force anyone to read the news piece,
but merely suggested that the dealers read it.
Steve Salvey, a
self-described 22-year employee currently employed as a dual-rate pit manager
at Trump Marina, testified that he knew Edwards, a part-time dealer whom he
supervised on May 11, 2007; Salvey stated that he was aware that the employees
voted that day.
Salvey was shown
a copy of the newspaper article (GC Exh. 2) by the Respondent’s counsel and recalled
seeing it on the day of the election in the game pit. He noted that newspapers are generally left
in the cafeteria but on occasion dealers will bring them back to the pit to
read on their breaks throughout the day.
Salvey denied
requiring any dealers to look at the newspaper (and ads), and specifically
could not recall approaching Edwards about the newspaper, which he admitted was
indeed on the pit stand on that day.
Salvey insisted that, in fact, he had no conversations with the dealers
about the newspapers because he had been instructed by management not to
discuss anything about the
First, I would
credit Edward’s version of her encounter with Salvey. Edwards, as I observed her, was clearly an
uncomfortable and somewhat reluctant witness—she did not want to testify. In spite of her feelings, however, in my mind
she gave a detailed account of her conversation with Salvey. On the other hand, Salvey’s testimony did not
ring true, especially where he stated that he did not recall having spoken with
Edwards at all that day—least of all about the newspaper ad. It seemed highly unlikely that a supervisor
would not say anything to one of his staff during the entire workday.
The question
remains whether, as Edwards testified, Salvey’s asking whether she had read the
article, and his suggestion to the dealers to read the antiunion literature are
tantamount to an unlawful interrogation about her union sympathies and an
unlawful order to read the antiunion literature.
I would find and
conclude that Salvey’s actions violated the Act as charged. It is very significant to me that Salvey was
aware that the antiunion literature was in the pit area on election day which,
according to witnesses for the Respondent, was not allowed. In spite of this prohibition, Salvey allowed
the literature to remain and suggested to other dealers, including Edwards, to
read the materials. It seems likely to
me that Salvey used the same approach with the other dealers as he did with Edwards,
that is, asking her if she had read it, soliciting her views, and suggesting
that “she read” it before she votes.
Taken together, Salvey’s actions as a whole redound to unlawful
behavior, that is, unlawful interrogation of an employee to determine her union
sympathies in violation of Section 8(a)(1) of the Act. In likewise, I would sustain the
H.
Complaint Paragraphs 5(b)and (h); and
Objection 9
Dual-Rate Shift Supervisor
Jack Julian’s alleged threat that the Respondent would not grant employees’
requests for a day off (or approve schedule changes) if they selected the Union
to represent them in mid-April 2007; Julian’s alleged correction of an employee’s
no-call/no-show designation and threat that he would not grant leave requests
or make corrections if the employees selected the Union at the end of April or
on May 15, 2007.
The General
Counsel called Perakovich and part-time dealer Delores (Lori) Summers to
establish these allegations.
Perakovich
testified that about a couple of weeks before the election, she needed a
personal day off which had to be approved by her shift manager. On the day in question, Perakovich said she
asked Jack Julian, then the assistant shift manager, for his approval of what
is known at the casino as a GDO (given day off). According to Perakovich, Julian approved her
request but told her that “if we [dealers] had a union,” he would not be able
to grant her request. Perakovich stated
that this encounter took place between just the two of them.[29]
Delores Summers
testified that she has been a part-time dealer at Trump Marina since July 2005,
and was aware of the union organizing drive and election on May 11.
Summers related
an encounter she had with Julian on or about April 26, 2007, about a week
before the election. Summers related
that there had been a death in her family requiring a couple of days off to
attend the funeral. Jack Julian was her
shift manager from whom she needed approval to get time off.
Summers
intimated that she had been forewarned by coworkers to be careful in her
approach and dealings with management because it was rumored that, as she put
it, management was “coming to employees and asking difficult questions” and to
be watchful because of what had happened to Mario Spina.[30]
Accordingly, out
of this concern, she asked Perakovich to accompany her to make the request of
her shift manager, Julian, who ultimately granted her 2 days—Friday and
Saturday—off. However, while at the
funeral that Saturday, a coworker called her and advised that she had been
marked as a no-call/no-show on her assigned shift, an infraction that could
result in termination or at least a writeup discipline.
Summers said
that when she returned to work, she (accompanied by Perakovich as her witness)
spoke to Julian about the mistake.
According to Summers, Julian admitted that he had approved her request
and promised to correct the matter with the schedulers, which he then did on
the phone. After completing the call, according
to Summers, Julian said, “Did you see how I handled that? If you guys bring the
Jack Julian, a
22-year casino employee, testified that during the campaign and currently, he
is an assistant shift manager working on the day shift; Julian said that his
duties included management of the gaming operations.
Julian testified
that he recalled speaking with Perakovich possibly several times about schedule
changes, along with other dealers in mid-April 2007, and in the case of one
dealer—Vincent Ona who needed time off—he was able to correct an erroneous
no-call/no-show for him.
With respect to
Ona, Julian stated that a couple of weeks before the election, he told Ona if
we were to get a union, it was possible he would not have that authority any
more. Julian also admitted that he may
have said a similar comment to another dealer but could not recall telling this
to Perakovich or Summers who (he vaguely recalled) had asked him about a relief
day.
Julian said that
he could not recall clearly the substance of the conversation with Summers but
thought she needed him to excuse something, or she gave him some paperwork
documenting her attendance at a funeral.
First, I would
credit the testimony of both Perakovich and Summers regarding their respective
encounters with Julian concerning their requests for time off. I note that Perakovich and Summers had
essentially the same experience with Julian, and Summers’ experience in
particular was corroborated by Perakovich who was enlisted by Summers to be her
witness in dealing with Julian.
For his part,
Julian was vague and could not recall with any clarity even dealing with
Perakovich or Summers about their request for time off. Yet, he could remember a similar situation
with another dealer (who did not testify).
To me, this was simply reflective of his effort to avoid responsibility
for the statements he made to Perakovich and Summers.
I would find and
conclude that the Respondent, through Julian, violated the Act by in effect
threatening the employees that he would or could not grant days off, schedule
changes, or make corrections of the employees’ no-call/no-show determination if
the employees selected the
I.
Complaint Paragraph 5(i); Objection 10
The Respondent’s
closing of casino parking lot A allegedly to discourage employees from
encouraging other employees to support the
The General
Counsel called Sharon Rivera, a union organizer,[31]
to establish these charges. Rivera testified
that as the
Rivera said that
the Union then decided on a strategy to locate supporters in front of parking lot
A where a majority of the dealers, those with less than 15 years tenure, were allowed
to park their cars; Rivera stated that dealers who had 15 or more years’
seniority were allowed to park in the customer parking garage appurtenant to
the casino on floors 6, 7, and 8.[32]
Rivera said that
parking lot A is about 3–4 blocks from the casino and was not only used by the
casino employees but also members of the public, such as those who docked their
boats at the
Rivera said that
on May 10, the Thursday before the election, she discovered that the Company
was going to require all employees to park in the parking garage; on May 11,
election day, she drove by the lot around 6:45–6:50 a.m. and observed a wooden
barrier at the entrance of lot A.
Rivera said that
around 7 a.m. on May 10, she attended a preelection conference that included
Board agents and the observers for the
Rivera said that
on May 11, she inspected lot A and asked the guard posted there why the lot was
now closed. According to Rivera, the
guard did not really respond to her question and, exhibiting some reluctance,
merely pointed to some management personnel on the scene. Rivera said she decided not to pursue
questioning the guard to avoid putting him on the spot. Rivera noted that
before visiting the lot this second time, she overheard a casino security representative
tell Board agents that the lot was closed because of ongoing work. However, when the Board agents and union and
management representatives came to the lot accompanied by casino security,
there was no construction going on, and no workers were there except the security
guard.
According to
Rivera, on May 11, she returned to the lot after the 2 p.m. voting session and
at that time there were orange cones all over the lot but no one was performing
any work that she could see. Rivera said
that she actually went back and forth to the lot at the end of each voting
session throughout the day, but never saw any work being performed.
Rivera stated
that also on May 11, the casino security personnel informed the union representatives
that they could not politick on the street in front of the
Rivera said that
the
According to
Rivera, the union supporters were left with “just standing there in the street
holding signs,” with little or no opportunity to interact with the voters who
were all parking in the garage and from there going directly into the casino to
sign in and out as the case may be.
Rivera believed that by closing parking lot A, the Respondent created an
encumbrance on the
The Respondent
called no witnesses[34]
to rebut this allegation and admits that it closed parking lot A.
The General
Counsel (and the Union) asserts that the Respondent improperly tried to limit
contact between its employees and the
The General
Counsel notes that no one saw any work—environmental or otherwise—on lot A
being done on lot A. She argues that the
lot was closed simply to restrain and coerce the employees in their right to
communicate with each other about the
Contrary to the
General Counsel and the
The Respondent
argues that it was not required to provide the
For the reasons
and the authorities cited by the Respondent, I would find and conclude that the
Respondent’s closing of Parking lot A on election day did not violate the
Act. I am mindful that while the
Respondent did not produce a witness[35]
to explain the decision to close the lot, the casino’s stated reason was to
perform some work on the lot on election day.
However, it seems clear that no actual work was being performed on May
11. This fact does that fact does not
mean that none was planned by the casino.
Be that as it
may, my agreement with the Respondent does not rest on whether work was being
or to be done on parking lot A. The record is clear that the campaign lasted
for several months, and there was much “electioneering” by the parties, both
inside and outside the casino; both the Union and the Respondent evidently took
advantage of whatever means at their disposal to communicate with the dealers,
to include employer and union meetings, union and company literature onsite;
T-shirts and stickers being worn on and offsite; and employees actively
campaigning either for or against the Union, to name but a few opportunities
taken by the parties.
As noted by the
Respondent, the
On May 11, the
lot was closed but notice had been given to the employees and the
I would
recommend dismissal of the charge, and not sustain the associated objection.
J.
Complaint Paragraph 5(j); Objection 11
The Respondent’s
alleged surveillance by its guards and supervisors on May 11, 2007, in the
casino parking garage of an employee attempting to engage in union activities;
its alleged direction of the employee to leave the garage; its alleged following
of the employee off the property; its continued watching of the employee for an
extended period; and its alleged threat to charge the employee with loitering
if she distributed prounion literature in nonwork areas.
Perakovich also
testified at the behest of the General Counsel regarding these allegations.
Perakovich said
that on May 11, she arrived at the casino at around 8 a.m. and parked on the eighth
floor of the parking garage. She noted
that she had 15 or more years of seniority and was allowed to park there at no
cost. Perakovich stated that after
casting her vote, she went back to her car as this was her scheduled day off;
however, she did not intend to leave the garage because she was a union
observer for the election.
Perakovich
testified that since the Respondent had closed parking lot A, she thought that
perhaps her coworkers might not be aware of this. Accordingly, she decided to place telephone
calls to them while standing outside of the elevator on the eighth floor of the
garage. While there, Perakovich stated
that a security guard on a bicycle approached her and told her that she should
not be doing “what you are doing.”
Perakovich said that she told him she was doing nothing, to which the
guard said (accusingly), “You know what you are doing—get in your car and
leave,” pointing to an older Mercedes parked nearby which happened to have a
UAW sign in the rear window. Perakovich
said she told the guard that the Mercedes was not her vehicle, but the guard
(sarcastically) expressed his disbelief, saying, “Yeah, right.”
Perakovich said
as it happened a security supervisor, Sharon Long,[36]
came on the scene and proceeded to ask Perakovich what was going on and what
she was doing.
Perakovich said
she responded to Long, telling her that she had made a few telephone
calls. According to Perakovich, Long
told her that she could not loiter there.
Perakovich said that she told Long she was not loitering, which prompted
Long to ask again what she was doing.
Perakovich said that she told Long that she was waiting for a ride from
a friend. Perakovich stated that Long,
obviously not believing her (because nonemployees had to pay in advance to use
the parking garage), asked whether her friend was going to pick her up in the
garage.[37] Ultimately, according to Perakovich, Long
told her that she had to wait for her ride downstairs at the employee entrance
to the garage. Thereupon, Perakovich
said that she and Long took the elevator and Long got off on the casino level
and she on the ground level, where she walked to the employee entrance and
waited. Perakovich noted that when she
arrived at the entrance, the first bicycle guard was there. Perakovich said that she waited for about 10
minutes for him to leave and then returned to her car. While leaving the garage, Perakovich said
that she again saw the bicycle guard who said, “I thought you did not have a
car.” Perakovich said that she simply
left without further comment.
Sharon Long was
called by the Respondent and testified that she is currently employed by Trump
Marina as a security shift manager charged with overseeing the safety and security
of casino guests and employees as well as the casino assets.[38]
Long said that
she was familiar with the union campaign as well as the election held in on May
11, on which day she was working. Long
recalled an incident with an employee whose name she could not recall in the
parking garage.
Long said that
on this day, a bike security officer on patrol in the garage advised her that
an employee had been in the garage for quite a while and requested that Long
respond to the area to determine what was going on. Upon arriving at the garage eighth-floor
level, Long said that the bike officer pointed to the (female) employee in
question, whereupon Long said she asked the employee whether she was coming on
shift, currently working, or leaving work.[39] According to Long, the employee said that she
was leaving work, had completed her shift, and was waiting for a ride. Long testified that she informed the employee
that casino policy required that employees be picked up and dropped off at the
employee entrance. Long stated that she
asked the employee why she would be waiting to be picked up on the eighth floor
which required her ride to pay a parking fee.
According to Long, the employee “hemmed and hawed,” so she politely
asked her to go to the employee entrance to be picked up; both she and the
employee together got on the elevator.
Long said that she got off on the casino level as did the employee, but
she did not see where the employee went and had no further contract with her.
Long denied
threatening the employee or intimidating her; and she denied following her off
the property and watching her for any extended period of time. Long insisted that she responded to the area
solely because of the report of the bike officer who provided a description of
a person thought to be loitering in the garage.
In agreement
with the Respondent, I would find and conclude that Long did not engage in
unlawful surveillance or otherwise violate the Act in her encounter with
Perakovich.
I note that Long
and her security members were charged with securing the casino property and it
seems clear the security officers believed that Perakovich was loitering, which
in turn triggered a response from Long.
Notably, Perakovich admitted that for her own reasons, she did not mention
her union activities but instead told Long she was waiting for a ride. Long credibly testified that she informed
Perakovich of the casino policy in such circumstances and merely accompanied
her to the appropriate place for employees to be picked up or dropped off.
I would agree
with the Respondent that Long and other security officers merely responded to a
suspected loitering by Perakovich who did not tell them at the time that she
was engaging in union activities.[40] I would recommend dismissal of this charge
and that the associated objection not be sustained.
K.
Complaint Paragraph 5(p)
Shift Manager
Karen Lew’s allegedly suggesting to an employee on or about May 16, 2007, that
the employee and other employees who supported the
Perakovich was
again called by the General Counsel to establish this charge.
Perakovich
testified that about 5 days after the election, she was called into the office
of Karen Lew, her shift manager, whereat Lew[41]
said that the election was over and the Union had lost; that she (Lew) knew
that Mary Lou Calderon, Mario Spina, Lori Summers, and Perakovich had put a lot
of effort into the union drive, but things were going back to business as
usual. According to Perakovich, Lew said
that she wanted to make sure all would get along and there would be no
problem. According to Perakovich, Lew
went on to say that “this was a non-union house, and there were other union
(houses) in town; if we didn’t like it, there was the door.” Perakovich said that she did not respond to
these comments which she acknowledged were made between the two of them alone
in Lew’s office.
Admitted Supervisor
Karen Lew testified that she did not make the remarks attributed to her by
Perakovich on May 16, 2007 (or on any other date).
In agreement
with the Respondent, I would find and conclude that the General Counsel has not
met her burden of proof, and I would recommend dismissal of this charge.
I note in so
finding that this incident involves a one-on-one conversation allegedly
occurring between the very partisan Perakovich and her supervisor, the very
partisan Lew. In my view, the
testimonial evidence is in equipoise; and, accordingly, the charge fails.
L.
Complaint Paragraphs 5(k) and (l); Objection 12
The Respondent’s
alleged attempt on May 11, 2007, to confiscate union flyers from employees near
the casino’s cafeteria; its interrogation of an employee regarding his
possession of union flyers; its threat to an employee that his conduct would be
reported to higher casino authorities; its prohibiting the employee from
distributing flyers “anywhere” during the remainder of May 11; its telling the
employee to surrender his flyers to a supervisor; and its permitting antiunion
employees to distribute literature without confiscation of their literature.
The General
Counsel called 22-year Trump employee, Charles Gregor, who testified that he
was a full-time dealer who very actively supported the
Gregor stated
that he was working at the casino on election day. Gregor noted that he had passed out union
literature—”quite a lot” by his estimate—in the cafeteria, parking lot, and the
parking garage where as a 15-year (plus) employee he was allowed to park his
vehicle before the election and on May 11 as well.
Gregor testified
that on May 11, he had handed out union literature near the cafeteria doorway
just before he started his 4 a.m. shift and was walking with a coworker, Mary
Lou Calderon, when a casino security supervisor, Phil Conklin, came up from
behind, but happened to trip over something and dropped his wallet. At the time Gregor said that he had some
union literature in his hands and while assisting Conklin recover from his
stumble (holding the door for him), Conklin asked what he had in his hands and
requested a copy. Gregor stated that he
gave Conklin a union flyer, but then Conklin attempted to grab the entire
package of flyers from him. Gregor said
that he believed Conklin was kidding and recoiled playfully while not giving
Conklin the flyers. However, according
to Gregor, he determined that Conklin was serious—he did want all of the
flyers—and upon Gregor’s refusal to hand them over, Conklin went over to the
pit and placed a call on his walkie-talkie.
Gregor said that he went on his way.
Gregor said that
he was smiling during the whole encounter and then simply went to his table,
thinking nothing of the matter. However,
as he was walking, James DiRenzo, a shift supervisor stopped him and asked if
he had been passing out flyers on the casino floor. Gregor responded that he had not, but DiRenzo
stated that Conklin had said that he had been passing out the flyers. Gregor testified that he explained to DiRenzo
that Conklin had asked for the flyers and that he had given him one copy.
According to
Gregor, DiRenzo then told him that he had been rude to Conklin by saying, “[G]et
out of here,” and he (DiRenzo) was going to have to report the incident to the
casino manager.[42] Gregor noted that in his view DiRenzo
exhibited a mean demeanor and attitude while telling him of his intentions.
According to
Gregor, DiRenzo then ordered him to go to his gaming table and warned him not
to distribute flyers during the day of the election. Gregor said he told DiRenzo that he (Gregor)
did not know about this, because DiRenzo did not specify where he could distribute—he
seemed to be saying he just could not pass out flyers anywhere.
According to
Gregor, DiRenzo then asked if he had the flyers with him and, if so, to give
them to him. Gregor said initially he
told DiRenzo he did not have them with him but that he would give them to
someone to hold for him. Gregor said he
then told DiRenzo that he would get the flyers on his break and hand them over;
however, according to Gregor, he did not happen to see DiRenzo at all during
the day to give him the flyers.
Later that day,
Gregor stated that his pit boss, Robert Bell (who goes by Bruce), approached
him at his game and told him that he was not supposed to pass out flyers that
day, that he was telling everyone about this on the instruction of management.[43]
Gregor mentioned
in passing that he had been and was at the time very friendly with security
personnel, including Conklin, which is why he thought Conklin was teasing him
over the flyers. Gregor stated that he did say “get out of here” to Conklin but
said this in the context of what he thought was Conklin’s playful request. Gregor testified that he later came to think
that DiRenzo might have thought that what he said to Conklin was rude, but at
the time he had no idea that he had caused offense or a problem because Conklin
allowed him to walk out to the casino floor with the flyers.
Gregor noted
that at the point he dealt with DiRenzo, he could not recall whether Calderon
was still walking with him, but he was sure he no longer possessed the flyers.
Counsel for the
Union examined Gregor regarding his observations of the conduct of employees
who were not supporters of the
Gregor
specifically recalled Angier taunting him with arms raised at a gaming table
about a week before the election. Coincidentally,
Gregor also
recalled that on election day, Kent Taylor, another dealer (and an election
observer for the casino), told him that Ernie Isgro, a dual-rate casino shift
manager, had instructed him to wear a similar yellow T-shirt.[44]
Conklin testified
at the hearing and stated that for the past 3-1/2 years he has served as a
Trump Marina security officer and during the union campaign and election served
as a dual-rate security shift manager. Conklin stated that while he does not
know Gregor personally, he did have an encounter with him on May 11, election
day.
According to
Conklin, as he was walking onto the casino floor from the area of the
cafeteria, he observed “Chuck” on the casino floor in the slot machine area
passing out flyers to other dealers at about 5 a.m.[45] Conklin intimated that management had
instructed security to be on the alert for this type of activity and, observing
Gregor, he asked him what he was holding; Gregor showed him a flyer. At the time, Conklin said that they were on the
casino floor in the slots section.
Conklin
testified that he advised Gregor of the casino’s no-solicitation on the casino
floor and work area policy and went on to his other duties. However, Conklin admitted that as per
management’s directions, he advised Gregor’s supervisors that he had spoken to
Gregor about the matter. Conklin denied
making any attempt to confiscate the flyers, to snatch, or grab them from
Gregor. Conklin admitted that Gregor
voluntarily gave him a flyer, which he turned over to Gregor’s supervisors,
DiRenzo and Isgro.
James (Jimmy)
DiRenzo testified that he has been employed by Trump Marina for about 10 years,
and at the time of the election supervised the graveyard shift—4 a.m. to 12
noon.
DiRenzo recalled
conversing with Gregor, one of the dealers on his shift, after being apprised
by Conklin, a security supervisor, that he saw Gregor handing out union flyers
on the casino floor. DiRenzo said that
he saw Gregor, standing with Ernie Isgro at pit 8 and informed him that he was
seen distributing flyers on the casino floor.
DiRenzo stated that Gregor denied doing this. DiRenzo, accepting Gregor’s denial, said that
he reminded Gregor that he could not distribute on the casino floor and Gregor
said okay.
DiRenzo stated
that during a shift change, he observed a morning shift dealer walking by
reading something, which turned to be a union flyer. DiRenzo asked the dealer where he had
obtained the flyer and was told that Mary Lou Calderon, a graveyard shift
dealer, had given it to him on the casino floor. A few moments later, Calderon, accompanied by
Gregor, happened by and DiRenzo (with Isgro standing by) said he spoke directly
to her, but reminded the two about the distribution policy on the casino
floor. According to DiRenzo, both Calderon
and Gregor said okay and that ended the matter.
DiRenzo admitted
that neither Gregor nor Calderon were argumentative or otherwise disagreeable
about the matter. Accordingly, DiRenzo
denied telling Gregor that he would report him to higher casino authority,
there was no need under the circumstances.
DiRenzo testified that he did not take any flyers from Gregor; in fact,
Gregor had none in his possession at the time.
DiRenzo said the only flyer he saw was the one given him by the swing
shift dealer, and that he gave that one back to the dealer who had completed
his shift.
DiRenzo
volunteered that the no-solicitation policy on the casino floor applied at all
times, not just on election day. In that
vein, DiRenzo stated that on election day he had seen no union or antiunion
materials on the pit stand, and specifically did not see the newspaper ad (GC
Exh. 2). However, DiRenzo admitted that
on election day, he wore an antiunion sticker which he had picked up from the
shift manager’s office.
DiRenzo stated
that he had observed dealers Angier, Guiffrida, and Nina Braithwaite wearing
yellow T-shirts on the premises but was not sure if they were then working as
they work on the swing shift, not his graveyard shift.
Ernie Isgro
testified that he has been employed by Trump Marina for about 22 years, and
during the election and union campaign he was serving as a dual-rate casino
shift manager; Isgro says his immediate supervisor is DiRenzo with whom he was
working on May 11. Isgro also stated
that he knew Chuck Gregor as a graveyard shift dealer who also was working that
night.
Isgro testified
that on May 11, he was working with Gregor in pit 8 and DiRenzo came over and
asked Gregor if he had been distributing flyers on the casino floor. According
to Isgro, Gregor said he had not, to which DiRenzo said, “[O]kay,” but to make
sure that Gregor did not do this on the casino floor.
Isgro said as it
happened, a dealer was coming their way with a paper in his hand and DiRenzo
called him over and asked what he was reading.
The dealer admitted that he should not have what turned out to be a
union flyer on the casino floor.
According to Isgro, DiRenzo told him to put it away, not to read it on
the casino floor. The dealer went on his
way without further ado, but advised that Calderon had given it to him. Then, as Calderon accompanied by Gregor
happened by, DiRenzo advised her (and Gregor) not to distribute on the casino
floor.
Isgro stated
that DiRenzo did not tell Gregor (or the dealer or Calderon) that he could not distribute
flyers anywhere else on the property and made no attempt to confiscate any
flyers. According to Isgro, there were
simply no flyers to confiscate except the one the swing shift dealer was
reading.
Isgro also said
that DiRenzo did not tell Gregor he would be reported to higher management. According to Isgro, there was no problem; the
dealers said they would comply with the solicitation policy. Isgro intimated that he personally did not
see Gregor in possession of any flyers, and DiRenzo never asked Gregor to hand
over flyers, at least in his presence.
Isgro
acknowledged that the casino management had instructed him that there was to be
no distribution on the casino floor of any kind to include flyers or paperwork,
especially on election day. Isgro
conceded that while he had observed antiunion material on the pit stands,[46]
the material was not evident on election day.
The General
Counsel submits that the Respondent’s encounter with Gregor was basically a
manifestation of its objective to be on the lookout for any union activities
employees may be engaging in, particularly on election day, and pursuant to
this objective informed its security staff to prevent these activities.
The General
Counsel further submits that Gregor’s testimony should be credited over that of
DiRenzo, Conklin, and Isgro because he was straightforward and detailed, while
the management employees were vague and overreaching in their understanding of
the casino’s workplace rules covering solicitation.
The Respondent
asserts that with respect to Gregor’s encounter with Conklin, Conklin, having
observed Gregor passing out flyers on the casino floor, merely informed him
that this was not permitted in the work area of the casino. Conklin, then acting on instructions from
management, reported the incident to DiRenzo.
The Respondent contends that it was Gregor who engaged in impermissible
conduct and that Conklin was simply enforcing a legitimate rule of the casino.
The Respondent submits that Conklin’s denial that he confiscated or attempt to
confiscate Gregor’s flyers should be credited.
Regarding Gregor’s
encounter with DiRenzo, the Respondent contends that contrary to Gregor’s vague
and prompted testimony, DiRenzo credibly testified that he told Gregor that he
could not distribute the flyers on the casino floor, “our work place.” Moreover, since Gregor himself testified that
at the time of this encounter, he had no flyers in his possession, DiRenzo
could not have confiscated any flyers from Gregor.
The Respondent
asserts that DiRenzo did not coercively interrogate Gregor by asking him
whether he had distributed on its casino floor as reported to him by Conklin, because
their questioning was based on a possible violation of a legitimate work rule
and policy, and not to determine Gregor’s union sentiments or otherwise interfere
with his rights under the Act.
Gregor’s
encounter with management is somewhat puzzling.
It would appear that Gregor believed that Conklin was teasing him
regarding Conklin’s purported attempt to confiscate his flyers. Conklin testified that he saw Gregor distributing
flyers on the casino floor, which he should not be doing according to company
policy. Acting on Conklin’s report,
DiRenzo told Gregor that he could not distribute the flyers in the working
areas. Gregor came to the belief that
DiRenzo was saying that he could not distribute “anywhere.”
Notably, DiRenzo’s
version of his encounter with Gregor was essentially corroborated by another
manager, Isgro. Another person with
possible knowledge of the events, Mary Lou Calderon, a union supporter by all accounts,
did not testify at the hearing.
On balance, I
cannot find and conclude that the Respondent violated the Act with respect to
the Gregor incident on May 11.
Specifically, I cannot find that either Conklin or DiRenzo attempted to
confiscate Gregor’s flyers; I cannot find that either Conklin or DiRenzo
unlawfully interrogated Gregor regarding his possession of the flyers. It would be my finding that Conklin and
DiRenzo lawfully asked Gregor whether he was distributing flyers on the casino
floor—a clear working area—and reminded him that such distribution was not
permissible. I cannot find that either
Conklin or DiRenzo told Gregor (or any employee) that he could not distribute “anywhere”
on casino property.[47] In likewise, I cannot find that either Conklin
or DiRenzo told Gregor to surrender his flyers to management.
Since I cannot
conclude that the Respondent confiscated or attempted to confiscate Gregor’s
union literature, I cannot in likewise conclude that the Respondent permitted
antiunion employees to distribute literature without confiscating (or attempting
to) their literature.
I would
recommend dismissal of these allegations, and would not sustain the associated
objection.[48]
M.
Complaint Paragraph 5(o)
The Respondent,
through an alleged agent/supervisor, Mary Ann Henson, allegedly telling an
employee on May 14, 2007, that the casino was looking to fire employees who
started the union campaign.
Diane Rieck also
testified regarding this allegation.
Rieck stated
that on the Monday after the May 11 election—the 14th—an employee, Mary Ann
Henson said to her in the cafeteria, “[W]hoever is starting the stuff with the
Henson did not
testify at the hearing; no reason was provided by the Respondent for her
nonappearance. The Respondent, however,
called Barbara Hulsizer[50]
as its witness to rebut these charges.
Hulsizer stated that Mary Ann Henson during the relevant period was employed
by Trump Marina as a national marketing executive, a full-time salaried
position with no supervisory responsibilities.
According to Hulsizer, Henson is not considered a managerial
employee. Rather, she is a professional
employee whose main duties were to ensure that casino customers had a
satisfactory experience while visiting the casino. Basically, according to Hulsizer, Henson’s
job was one step up from a “host” position; her main function was to bring in
customers to play the slot machines.
Hulsizer went on
to say that Henson did not hold herself out as an agent, because in her role,
she had only a limited interaction with employees and had no duties that relate
to employee discipline, granting time off, or like matters. According to Hulsizer, Henson did not really
deal with the other casino employees, including the dealers, in an occupational
sense. Hulsizer stated that Henson’s
role was mainly public relations.
Henson did not
testify at the hearing so the only account of what happened between Henson and
Rieck comes from Rieck. Rieck was, as I
have stated, a credible witness, and although her identification of Henson was
not as surefooted as one would like, I will credit her version of Henson’s comments
to her, which comments, in my view, constitute a violation of the Act.
As accurately
submitted by the Respondent, the burden of proving supervisory authority is on
the party asserting it, and such proof must be established by a preponderance
of the evidence. Oakwood Healthcare, Inc., 348 NLRB 686 fn. 3 (2006); Dean & Deluca, 338 NLRB 1046, 1047
(2003). Purely conclusory evidence is
not sufficient to establish supervisory status.
The Board requires evidence that the employee actually possesses the
2(11) authority at issue.
On this record,
there was no evidence of consequence adduced by the General Counsel sufficient
to imbue Henson with supervisory status.
The Respondent
also correctly cited the Board’s test for agency, mainly whether, under all the
circumstances, an employee could reasonably believe that the alleged agent was
reflecting company policy and speaking for management. Waterbed
World, 286 NLRB 425, 426–427 (1987); Kosher
Plaza Supermarket, 313 NLRB 74, 85 (1993).
The Board has held that the party asserting that an agency relationship
exists bears the burden of proof. Shen Automotive Dealership Group, 321
NLRB 586 (1996); see, e.g., National
Gypsum, 293 NLRB 1138 (1989); Matheson
Fast Freight, 297 NLRB 63 (1989).
Here, it seems
clear that Henson had little or no contact with the dealers, as confirmed by
Rieck who barely knew who Henson was, except for having seen her around the
casino and having a vague recollection of her name. Rieck, in fact, did not seem to know what
Henson’s job was at the casino. So, in
my view, a claim that Rieck could reasonably believe that Henson was reflecting
company policy when she made the offending remark is simply not supportable.
In agreement
with the Respondent, I would find and conclude that Henson was neither a
statutory supervisor nor agent. I am
persuaded to this conclusion by the description of Henson’s role and duties as
credibly explained by Hulsizer. It seems
that Henson was basically a hostess and possessed no supervisory authority, or
any apparent authority to represent the Company or speak for it regarding
employee relations. Accordingly, I would
recommend dismissal of the charge.
I note in
passing that while Henson’s remarks cannot be attributable to the Respondent
for purposes of determining a violation of the Act, these remarks certainly are
indicative of management’s pervasive hostility to the union cause and, by extension,
those who supported it.
N.
Objection 1
The Respondent’s
alleged unilateral change of the location of the election room in violation of
the Stipulated Election Agreement.
The
The Union also
contends that the Respondent’s action essentially was a slap in the Union’s
face, which served its purpose to communicate to the employees that the casino
could summarily ignore and modify any agreements reached with the
The Respondent
counters, arguing that the
The Respondent
submits under the circumstances it cannot be reasonably gainsaid that employees
were somehow disenfranchised or otherwise discouraged, and intimidated in the
free exercise of their rights under the Act.
The Respondent
also submits that the
The Respondent
submits its action, sanctioned by the Region, could not and did not affect the
results of the election.
I agree with the
Respondent and would recommend that Objection 1 not be sustained. The facts are as follows. On April 24, 2007, the Respondent’s counsel,
Christine A. Cannella, e-mailed Board agents Scott Thompson and Devin Gosh,
informing them that the Biscayne Room had been previously booked by another
group[51]
for May 11, 2007.
On April 30,
2007, Regional Director Dorothy L. Moore-Duncan notified counsel for the
The Regional
Director stated that the Notices of Election (would) indicate that the place of
the election would be the Hatteras Room 1, and that all other terms of the
Stipulated Agreement remained the same.
On May 7, 2007,
by letter to the parties, Board agent Devin Gosh confirmed the arrangements for
the representation election to be held on May 11. The letter, inter alia, indicated that the
election would be held in the Respondent’s facility at certain times in the
Hatteras Room 1.
Under these
facts and circumstances, I cannot find and conclude, first, that the Respondent’s
conduct affected the employees in the voting unit. It seems highly improbable and unlikely that
reasonable employees, once informed of what amounts to be a booking error by
the Respondent, would conclude that the Company disrespected the Board, its
process and procedures, or the
In likewise,
given the facts and circumstances, I cannot find that the change in the
location of the polling place had a reasonable tendency to affect the outcome
of the election. First, the request for
change was made timely enough for the Region to investigate the matter and make
a determination. Second, all parties, it
seems, were given sufficient notice by the Region so that their respective
constituencies could be informed. Third,
it should also be noted that the change was merely to another room in the
casino as opposed to a change to another facility. The voting unit certainly was not inconvenienced
by the change, at least on this record.
Significantly, no witnesses testified that the room change affected them
one way or the other.
Therefore, I
would recommend that Objection #1 not be sustained. Avante
at
O.
Objections # 7, 8, 13, and 15
1. Objection #7
The Respondent’s
alleged granting of access on or about April 9, 2007, to antiunion supporters
during worktime and in work areas while denying such access to union
supporters.
2. Objection #8
The Respondent’s
allegedly allowing on about April 9, 2007, employees to wear antiunion apparel
and insignia on the casino (gaming) floor in violation of its policy prohibiting
wearing any apparel other than uniforms and employee badges on the casino
floor, including prohibiting wearing American flags on their badges.
3. Objection #13
The Respondent’s
alleged placement of stickers on the escalator railings leading up to the polling
place on May 11, 2007.
4. Objection #15
The Respondent’s
alleged threatening, coercion, and intimidation of employees on about May 10,
2007, by distributing antiunion stickers and buttons for employees to wear.
The
As a preliminary
matter, union counsel notes that the Respondent, as part of its campaign to
defeat the
Union counsel
also points to two documents[55]
produced by the casino which were widely distributed to the employees and specifically
made available to them by being placed next to employee paychecks. Union counsel contends that the documents and
their placement were objectionable in that the casino granted itself unfettered
access to the employees for its counter-campaign but denied similar access (to
disseminate information) to the
Notably, these
preliminary matters are not cited in the pleadings as objections, unalleged or
alleged. Accordingly, I will not make a
ruling on these matters.
However, turning
to the pleaded objections themselves, the following witnesses were called to
offer testimony on the specific objections by the parties.
Elaine
Catalfano, a part-time blackjack dealer, testified that she has been employed
by the casino for about 2–3 years and considered herself a strong supporter of
the Company and was opposed to the union campaign.[56]
Catalfano
testified that she supported the Company’s opposition to the
Catalfano
explained that on election day she and her husband, who also works for the
casino, began work at 8 p.m. and, having seen fellow dealers outside the building
wearing union shirts and carrying union posters, decided to support the casino
by displaying a poster. Catalfano noted
that prior to May 11 about a month or so prior, she observed both management
and union literature in the cafeteria.
Guiseppe Guiffrida
and Linda Angier testified at the hearing.[57]
Guiffrida stated
that he was aware of the Union’s organizing campaign as well as the election
held on May 11; Guiffrida stated unequivocally that he supported the
Guiffrida said
to show his support, at his own expense he purchased, designed, and printed up
yellow T-shirts on which he included antiunion information and an antiunion
website. Guiffrida said that he made up
the T-shirts about a couple of days before the election, perhaps as much as 4–5
days prior to the election, but with no instruction or support from the casino
management. Guiffrida said his plan was
to distribute the shirts to antiunion supporters at work in reaction to the UAW
representatives who had worn union shirts and walked around the casino, in his
view trying to intimidate the dealers.
Guiffrida related that one of the UAW supporters stood right in front of
him while he was running his game and even tried to stop and talk with working
dealers on break. Guiffrida stated that
in his view, the campaign was contentious.
Guiffrida said
that he gave a shirt to anyone who wanted one—he did not force a shirt on
anyone—a couple of days before the election (and on election day as well) in
the cafeteria, where he distributed most of these shirts.
Guiffrida said
that he and Linda Angier were on vacation during the week of the election, but
came to work at around 6–6:30 p.m. to show support for the Company. Guiffrida said that he wore the T-shirt on
Guiffrida
acknowledged that he knew Jack (Julian), a supervisor on the day shift, and
recalled that he and Linda Angier showed him the shirts, but could not recall
his Julian’s laughing about them; whether Julian actually took one; or whether
he held one up to show to Julian.
Linda Angier
stated that she was aware of the union organizing campaign and the election and
she, like her fiancé, Guiffrida, strongly supported the Marina not only by
talking to other dealers about the Company and against the Union (which she
believed did not offer anything to her or the dealers) but also by making up
and distributing the yellow T-shirts.
Angier stated
that she and Guiffrida came up with the T-shirt idea because the UAW supporters
“were parading” around the casino floor, which she took to be a form of intimidation
that angered her. Accordingly, she and Guiffrida decided to combat the UAW with
bright canary yellow T-shirts—to connote caution and suggest that the dealers
proceed cautiously before deciding for the
Angier echoed
Guiffrida’s testimony in that she confirmed that they paid for the shirts and
there was no involvement of management in the decision to make them up or distribute
them to anyone who asked.
Angier said she
wore a T-shirt at different times of the day inside and outside casino
property, including the casino floor for a short period almost every day the
week before the election and on election day.
Angier said that she and Guiffrida were on vacation during the week
before the election.
Angier noted
that during the campaign she saw UAW material; for example, leaflets and
authorizations in the cafeteria; however, she did not see any company
materials.
Angier related
that Guiffrida brought the T-shirts to the casino in a crochet bag and while
she could not recall saying anything specific to Jack Julian, it was possible
that she showed him the T-shirts. Angier stated that she distributed the shirts
to any dealer who asked but not to managers or supervisors. Angier noted that
on election day[58] when
she wore the T-shirt on the casino floor, she did not offer shirts or even
speak to any dealers who were working; she merely made a brief “loop” around
the casino floor with the shirt on.
Angier believed that the floor supervisor should have seen her, but no
one from management told her she could or should not be on the floor. Angier stated that the UAW supporters she observed
had been on the floor for several days before, so she felt she could do the
same thing.[59]
Angier noted
that during the campaign, she recalled seeing UAW leaflets in the cafeteria,
and authorization cards being passed out; she did not see any company materials
there.
Angier testified
that no one from management told her that she could not be on the casino floor
wearing the T-shirt and noted that any rule prohibiting off-duty workers from
being on the casino floor was an unenforced rule in her view, since employees
have to traverse the casino floor to get to the (work) scheduling area.
Kathy Perakovich
testified that prior to the election (about a day before), she observed several
employees wearing yellow T-shirts on which appeared an antiunion message—a circle
with a slash running through UAW—on the casino floor and in the break room and
cafeteria. Perakovich stated that of
these employees, the only person she knew was Elaine Catalfano, a swing shift
dealer; the others she could not recall by name.
Perakovich said
that on the day of the election, she observed Donna Townsend, a dual-rate
dealer in the voting area with an antiunion sticker on her badge in violation
of the employees’ handbook rules.[60] Perakovich said that she also observed at
least four stickers on the escalator railings going to the voting room.
Lori Ludovich
testified that on election day, she observed Elaine and Tony (Catalfano) and
Nina Braithwaite wearing bright yellow T-shirts in the cafeteria; she observed
one of these persons (she did not say who) on the casino floor as well.
Ludovich noted
that the casino’s policy, as she understood it, prohibited the wearing of any
buttons, pins, or like items on an employee’s uniform or badge.
Ludovich stated
that she did not know whether the employees wearing the yellow shirts were
working that day, but as she understood casino policy, employees could not be
on the casino floor without permission if they were not actually working. Ludovich said that when she was not working,
she only came to the casino to retrieve her paycheck; otherwise, she had to
have permission from management to go in other areas of the casino.[61]
Ludovich
testified that she also observed dual-rate floor personnel or full-time floor
personnel—supervisors—wearing small white antiunion UAW stickers, which were distributed
to them by Shift Manager Jack Julian, from a roll of the stickers. Ludovich stated that she observed him handing
these to one or two (management) floor persons—a dual-rate supervisor in
particular—but not to the dealers.
Ludovich stated that on election day, she observed these stickers
affixed to the railings on the escalator leading to the polling place.
Ludovich said
that she also observed employees wearing blue bracelets (on their wrists) which
were supportive of the UAW while working and throughout the election day, and
she saw persons she believed to be guests or customers wearing UAW T-shirts on
the casino floor.
Sharon Rivera
testified that she provided union supporters with T-shirts, yellow and navy
blue, one with a slogan “Union Yes” and another with “AC Dealers” on the front
and “United We Bargain, Divided We Beg” on the back; these shirts were employed
to give the union cause visibility and were worn both inside and outside the
casino by supporters.
Rivera stated
that she herself wore union T-shirts on about five occasions during the 2 weeks
preceding the election on the casino floor, but that no Trump Marina dealers
wore them on Trump property; however, other dealers from Caesar’s, Bally’s, and
Trump Plaza did wear the shirts on the casino floor.
Rivera noted
that when the union supporters wore the shirts inside the casino, company
security personnel approached them and actually followed them. She also volunteered that after dealer Mario
Spina was suspended by the Respondent, the Trump Marina supporters were
terrified and did not want to risk being disciplined. According to Rivera, a number of dealers
wanted to wear the union T-shirts and she actually distributed T-shirts to
dealers; however, after Spina’s suspension on April 21, none to her knowledge
ever wore a union shirt on Trump property.
Dan Cummings
testified that he observed the yellow T-shirts being worn on two occasions—once
on the casino floor and in the cafeteria.[62] Cummings stated that he also observed persons
wearing union shirts, walking up and down the casino floor aisles, and greeting
the working dealers and soliciting their support.
Cummings stated
that he was not aware of any company policy that prohibits off-duty employees
from being on the casino floor. He noted
that part-time dealers have to come to the casino while off-duty to get their
scheduling information and, therefore, have to cross the casino floor.
Mike Ferrare
testified that he observed “some dealers” while off-duty wearing yellow
T-shirts on the day of the election in the cafeteria.
Delores Summers
testified that she observed two Trump Marina employees, Donna Townsend and
Barbara Greer,[63] with
antiunion stickers (a red circle with the diagonal slash running through “No
Union”) affixed to their name badges while both were working games on the
casino floor on election day. Summers
stated that she had observed Townsend wearing the sticker one day before the
election and advised her that this was not allowed. According to Summers, Townsend asked her
whether Karen Lew, the day shift manager, knew of the prohibition.
Summers said she
also observed about 1 week before the election the yellow antiunion T-shirts
being worn on the casino floor (morning shift) by dealers (unidentified) and
actually saw a supervisor, Jack Julian, holding up a shirt for display to the
working dealers in the pit. Summers said
that the dealers also wore the T-shirts as they were casting their ballots on
election day, but she could not say whether they were on duty at the time.
Summers also
testified that while working pit 1 on the day before the election, she observed
antiunion literature that spoke to “union failures” and that supervisors, such
as full-time supervisor, Nancy Cantrell, were speaking to the dealers about
this literature.[64] Summers said this literature was also laying
on the blackjack table on the day in question.
Summers said that she observed full-time swing shift dealer, Nina
(Braithwaite), handing out (antiunion) literature near the timeclock, and in
the cafeteria and breakroom on the day before the election and on election day.
Summers stated
that she left prounion materials in the employee breakroom but on each occasion
it was removed by persons unknown; her “girl friend” (unidentified) experienced
the same thing.
Jack Julian
testified that on election day, he observed three night-shift dealers—Linda
Angier, Guiseppe Guiffrida, and Nina Braithwaite—wearing yellow T-shirts with a
red circle and a line through it; Julian was not sure whether they were on duty
at the time.
Julian recalled
that Guiffrida had a bag of the shirts with him that he had brought in to
work. Julian stated that he could not
recall whether he (Julian) actually handed out any of the shirts. Julian admitted that he placed antiunion
stickers on the several pit bosses’ desks and distributed the stickers on
strips to the pit managers, but not to the dual-rate dealers or other dealers
eligible to vote.
As noted
previously herein, Charles Gregor testified that he passed out union literature
“quite a lot” in the cafeteria, parking lot (A), and the garage before and on
election day as well.
Gregor stated
that he observed full-time dealers Angier and Guiffrida and a dual-rate dealer
named Joe (last name unknown) wearing the yellow antiunion T-shirts over their
uniform shirts on the casino floor about a week before the election. According to Gregor, Angier stood in front of
his blackjack table on one occasion, taunting him with her arms raised. Supervisor
Gregor said that
he was told by DiRenzo that literature was not to be distributed on election
day, although another dealer, Kent Taylor, told him that his shift supervisor,
Ernie Isgro, told him to wear a yellow T-shirt, something
As noted
previously, James DiRenzo testified that the casino maintained a general rule
prohibiting distributing material on the casino floor, not just on the day of
the election, and that he reminded Gregor and Calderon of the rule on May 11.
DiRenzo admitted
that he observed the yellow T-shirts (being worn) once—he could not recall the
date—on the casino floor by Braithwaite, Angier, and Guiffrida, whom he could
not say were working at the time.
DiRenzo admitted that he wore an antiunion sticker obtained from the
shift manager’s office on election day, around the time he confronted Gregor
and Calderon and reminded them not to distribute materials on the casino floor.
Ernie Isgro
testified that management had instructed him not to allow the distribution of
anything—a union flyer or paperwork—on the casino floor on election day.
Phil Conklin
testified that he, too, was instructed by management not to allow any solicitation
on the casino floor as well as other work areas on election day by either the
Diane Rieck
testified that on May 11, she observed dealer Elaine (Catalfano), Nina
(Braithwaite), and Guiseppe (Guiffrida) and his girlfriend (Angier) wearing and
distributing yellow T-shirts. Rieck
stated that she saw Guiffrida and his girlfriend give a T-shirt to Jack Julian
and Karen Lew, who gladly accepted them, on election day.[65]
Rieck said that
she also saw two dealers (Rachel and “Kelly” or “Knock”) whose last names she
did not know, wearing antiunion stickers on their dealer shirts. Rieck also noted that on election day, she
observed Jack Julian handing out antiunion stickers to “everybody” from a big
roll and placing stickers on pit stands 4 and 6.[66] Rieck stated she also saw these stickers
affixed to the railings leading to the polling place.
Karen Lew,
casino shift manager, testified that she observed Guiffrida, Angier, and
Braithwaite—swing-shift dealers—wearing yellow (antiunion) T-shirts on election
day. Lew stated that Guiffrida and
Angier were on vacation and Braithwaite was not working that day. She noted that employees, when off duty, can
come to the casino to check their schedules.[67]
Lew stated that
the casino policy does not permit employees to wear unauthorized pins or other
items on their uniforms except in the case of a special events; e.g., wearing
an American flag pin to commemorate the 9/11 attack or the (Red Cross) blood
drive; or casino promotions.
Lew acknowledged
that the Trump Hotels and Casino Resorts employee handbook (CP Exh. 9) during
the campaign was and is currently in effect, and that management expects employees
to follow the dictates contained therein.
Lew noted, however, that management in its discretion makes decisions regarding
acceptable emblems and memorabilia that may be worn in the casino.[68]
Union counsel
contends with respect to Objections 7 and 8 essentially that the evidence of
record establishes that the Respondent allowed its agents and supporters unfettered
access to the voters but did not allow nonemployee union supporters access to
the casino. She asserts that union
activists were repeatedly told to leave the casino floor, but antiunion
supporters were given free access to the casino floor and allowed to wear the
yellow shirts and other paraphernalia.
Union counsel submits that the Respondent’s active antiunion campaign,
coupled with its fierce effort to keep the
Union counsel
also asserts that the record clearly establishes that the Respondent allowed
antiunion employees to wear antiunion apparel and insignia on the casino floor
and allowed supervisors and dealers alike to wear antiunion stickers on their
badges and uniforms in violation of its own policies; that by allowing this,
the Respondent created an intimidating atmosphere for the employees who
reasonably would think that different rules applied to the employees, depending
on which side they were on. Union
counsel contends that this conduct was objectionable and affected the results
of the election.
The Respondent
counters, arguing in essence that the
The Respondent
submits that no employee stated that he or she was denied access to the casino
while off duty because they were union supporters or wearing prounion paraphernalia,
nor were any employees told to remove prounion shirts or other items. The Respondent also notes that no union supporters
ever attempted to engage in the same type conduct as the antiunion T-shirt
wearers, thus, eliminating any factual basis for a charge of disparate
treatment.
Regarding
Objections 7 and 8, I would tend to agree with the Respondent that these
objections should not be sustained. As I
have pointed out earlier herein, this was a spirited and even contentious
campaign between the parties; and it seems in terms of electioneering behavior,
each side gave as good as it got. The
Objections, here 7 and 8, go to the point that the Respondent essentially discriminated
against the union supporters by allowing the procompany supporters access to
the casino during worktime and in work areas while denying this to the union
supporters. Objection 7 was simply not established
on this record in my view. To be sure,
it seems clear that the Respondent allowed the yellow T-shirts to be worn and
evidently turned a blind eye to these procompany supporters parading around the
casino floor. However, it is equally
clear that the
As to Objection
8, while the casino policy (reasonably read) prohibited employees from wearing
any apparel over their uniforms or placing items on their badges, it seems this
policy was not uniformly enforced even prior to the campaign. For instance, employees wore American flag
pins on their badges in commemoration of the 9/11 attack, as well as other
items. It seems clear that the uniform
policy was not enforced during the campaign as well.
As noted by the
Respondent, however, the union supporters among the casino staff evidently
chose not to wear prounion paraphernalia except for perhaps the blue bracelets;
instead, the
Turning to
Objections 13 and 15, the
Union counsel
submits that the placement of the stickers (along with and exacerbated by the
closing of parking lot A), was a highly unusual act, noticeable to all
employees, and designed to solidify an atmosphere of intimidation especially on
election day. She also submits that the
Respondent, through its managers and supervisors, created an intimidating
atmosphere for the employees when they were observed both wearing as well as
distributing antiunion stickers to supervisors and dealers alike.
The Respondent,
noting that there was no evidence adduced that implicated any of its managers
and supervisors in the placement of the stickers on the escalator handrails,
denied that it engaged in objectionable conduct. While I would agree that there was no direct
evidence of company involvement in the placement of the stickers, the evidence
is clear the stickers were identical to those handed out and worn by
supervisors, like Julian. So it permits
of reasonable inference that the Respondent’s management had a hand in their
placement. I note also that in spite of
its denial, the Respondent did not take any steps to remove or cover up the
stickers on election day. This at the
least suggests to me a knowing acquiescence by the Company to their being on
the escalator.
However, be that
as it may, I do not believe the placement of the stickers rises to the level of
objectionable conduct in the context of the campaign in question. I do not agree that the mere placement of
antiunion stickers on a railing would create in the minds of voting employees
an intimidating or threatening environment such that would affect their individual
votes. I would not sustain this
objection.
As to Objection
15, it is clear that managers like the aforementioned Julian distributed
antiunion stickers but on this record, it would appear that he (they) distributed
items only to the other managers and supervisors, which is permissible.[69]
As pointed out
by the Respondent, its managers having solely distributed the stickers to management/supervisors,
the employees were not put in a position of having to make an observable choice
between taking or rejecting a sticker and thus exposing their preference for
the Union or the Company.[70]
In agreement with
the Respondent, I would not sustain this objection.
P.
Complaint Paragraph 5(d), Objection 5; Complaint
Paragraphs 6(a) and (b), Objections 2 and 3
1. Complaint Paragraph 5(d), Objection 5
Floor Supervisor
Frank Mangione’s alleged threat on about April 21, 2007, that (part-time) employees
would lose their jobs if the
2. Complaint Paragraphs 6(a) and (b), Objections 2 and 3
The Respondent’s
issuance of a suspension pending investigation to Mario Spina on April 21,
2007; and its issuance to Spina of a final warning and time-served suspension
on April 27, 2007. The Respondent’s
alleged threat to and intimidation of Spina with an investigative suspension in
retaliation for his engaging in protected concerted activity on about April 21,
2007. The Respondent’s alleged
threatening and intimidation of employees following Spina’s investigatory
suspension by continuing surveillance and constant monitoring of Spina and imposing
a final warning and suspension on him.
Before I embark
on a discussion of these related complaint allegations and objections, it will
be helpful in my view to establish several preliminary points.
First, there is
no dispute that Mario Spina, a full-time dealer (as previously described herein),
was disciplined—placed on investigative suspension—by the Respondent (through
Jack Julian, his immediate supervisor) on April 21, 2007, and that his
suspension commenced on that date.[71] It is likewise not disputed that Spina was
issued a suspension for time served and a final warning on April 27, 2007, by
his immediate supervisor, Karen Lew; Spina’s lost time includes the period
April 22–27, 2007.[72]
It is also
abundantly clear on this record that Spina was well known by both management
and the employees as the
To a certainty,
by his own statement corroborated by many witnesses, Spina undertook in
singular fashion the responsibility for educating employees—his fellow
dealers—about the Union and the possible benefits of union representation; he
also distributed and collected union authorization cards and throughout the
campaign answered employees’ questions about the Union. Spina also attended union meetings and campaigned
actively (in the cafeteria and break room) on behalf of the
Moreover, the
Respondent’s managers, Spina’s supervisors in particular, were well aware of
his role in the election campaign and, as one supervisor in dramatic
understatement testified, Spina did not hide it.
In the
discussions to follow, these points will be self-evident, but it is important
at the outset preliminarily to note my findings about Spina’s role in the
organizing drive and the possible significance of that role in conjunction with
his discipline and its possible effect on the election results. On this score, as will be discussed in more
detail, Spina’s discipline was well known among the employees and in fact
became a major topic of discussion at the casino in the weeks preceding the
election.
Spina testified
about the events leading to his discipline.
Spina stated
that on April 21, he was on break around 5–6 p.m. and while descending the
stairs from the casino floor and heading towards the cafeteria, he encountered
floor supervisor Mangione speaking to Angel Martinez, a dual-rate supervisor.[73] According to Spina, he heard Frank Mangione
in a loud, clear voice tell
Spina said that
he persisted and told Mangione that (irrespective of his kidding) he still
could not say what he told
However,
according to Spina, Mangione appeared to be getting more upset and he (Spina)
felt the matter was getting out of hand, with Mangione now scolding him and not
listening any longer. Spina stated that
he decided to try to get out of the situation and told Mangione that he was
sorry he (Mangione) felt that way and simply walked away.
Spina testified
that he used no profanity throughout the exchange with Mangione nor did he ever
make any threatening gestures. Spina
said that he purposely kept his hands in front of his body while carrying his
attaché case and stood 4–5 feet away from Mangione.
Spina further
testified that he does not generally use profanity; first, because of his religious
convictions.[75] Second, Spina said that he would not speak to
a supervisor using profanity because he depends on them for support in dealing
with difficult customers. He denied,
therefore, telling Mangione that he was an “asshole” supervisor, a charge later
leveled against him by Mangione.
Be that as it
may, Spina said that after the encounter with Mangione he proceeded to the
cafeteria and then back to his table. However,
around 7:50 p.m., Spina said he was called to Shift Manager Jack Julian’s
office, where Julian, Mangione, and a higher-level shift manager, George
Wilson, were present.
At this meeting,
according to Spina, Julian asked him whether he had words with Mangione, and
Spina said that he had; Julian then asked if he (Spina) had used
profanity. Spina said that he told
Julian he had not. In spite of his
denial, Julian then and there informed him that he was suspended and directed
him to sign a disciplinary action notice (GC Exh. 6), which placed him
immediately on investigative suspension for using profanity. Spina stated that while he was in shock, Julian
handed him a Trump Marina incident report form and asked him to submit his
version of the incident. Julian also
asked him for his employee badge. Spina
said that the meeting ended and after relinquishing his badge, he left the casino.
As the meeting
concluded, Spina said that Julian advised him that management would call him
when they were ready. Spina stated that
although he was still stunned over the suspension, he went over to the gaming
tables before leaving the property and mentioned to a craps dealer, Al Perry,
and another dealer, John Dougherty, what had happened.
Spina testified
that management called him on April 26 and instructed him to report for work on
April 27, 2007. Spina stated that on
April 27, he reported for work and went to Day Shift Manager Karen Lew’s office
to pick up his badge. Spina said that he
spoke with Lew who gave him a copy of the suspension for time-served document
(GC Exh. 8), which cited not only his use of profanity toward a supervisor, but
also accused him of exhibiting overly aggressive conduct. According to Spina, Lew scolded him and
warned him that behavior of this type would not be tolerated or condoned and
gave him a copy of the suspension document.
Spina said he accepted the document, but noted thereon, essentially,
that the new accusations of overly aggressive conduct as well as the profanity
charge were not true.[76]
Spina testified
that he told as few as 20 employees about the suspension but may have told 80
or 100. But after his suspension, Spina
testified that he was much more guarded in the pursuit of his campaign
activities. According to Spina, his
fellow employees were very guarded, very careful, and some looked around to see
if they were being observed as he spoke to them. Spina said that for his part, he stopped
leaving union literature (anywhere) in the casino after his suspension.
Spina testified
that there were other persons present when he and Mangione exchanged words on
April 21 and may have witnessed the encounter.
Spina identified Martinez; John Dougherty, a dual-rate dealer; Chris
Musso, dual-rate floor supervisor; Albert Taclaw, Frank Dante; Lori Ludovich; and
a contract craps dealer, Thango Quach (Spina’s spelling), who works at another
hotel. Spina stated that he did not
notice another employee, Ted Taylor, in the vicinity.
Spina stated
that because he was in shock on April 21 and was asked to leave the casino
property immediately, he essentially did not have the presence of mind to
provide Julian with the names of witnesses and, in fact, did not know that any
investigation of the matter was being pursued by management. Spina said he appealed his suspension to
Trump Marino’s board of review but the suspension was upheld and his request to
remove the discipline was denied.[77]
Spina volunteered
that an investigative suspension is the worst discipline (short of discharge) a
Trump Marina employee could receive.
Spina noted that in this regard over the 20 years he has been employed
by the casino, he had never received any disciplines and had, in fact, received
numerous awards and recognition for his work at Trump Marina.[78]
The General
Counsel and counsel for the Union also called a number of other witnesses to
establish the allegations in question regarding Spina’s suspension and its
effect on the election results.
Angel Martinez
described himself as a dual-rate dealer currently employed by Trump Marina
since 1994 or 1995.[79]
Martinez (on
cross-examination) stated that he knew that Spina was an active union supporter
and engaged in the organizing effort with a great deal of passion which,
according to Martinez, caused a little change in Spina’s behavior—“a little
more aggressive but not really aggressive,” “a little bit different,” as he put
it. However,
John (Jack)
Dougherty testified that he was currently employed by the casino as a full-time
day-shift dealer; he has been so employed for about 20 years.
Dougherty stated
that he was aware of the
Dougherty
recalled that about 10 days before the election as he was about to enter the
cafeteria, he observed Angel (Martinez) and Mangione talking and happened to
hear Mangione tell Angel, “You know, if the union gets in here, you don’t have
a job.” Dougherty said he kept on
walking to the cafeteria. However, then,
according to Dougherty, Mario came along and said, “You can’t talk like that
Frank, you can’t talk like that, you’re intimidating the man; you’re causing a
. . .[83]
with the NLRB; it’s a fallacy.”
According to Dougherty, Mangione, whose face was flushed, turned around
(to face Spina) and said, “Oh, I was only kidding.”
Dougherty stated
that Spina’s approach to Mangione was like a gentleman, and he did not raise
his voice at all—“a complete gentleman.”
Dougherty said
he then proceeded to the cafeteria and later back to his game, but about an
hour later, Mario told him that he had been suspended for using profanity. Dougherty recalled saying to Spina that was a
lie—an out-and-out lie. Dougherty
testified that Spina never curses and had not uttered a single curse word
during the 20 years of their acquaintance.[84]
Dougherty said
that the next day at the union hall, he heard that Spina had been suspended
pending investigation. Dougherty said he
provided a statement to the union representatives who he thought were going to
present his version of the encounter to management.[85] Dougherty stated that while he was never
asked to provide any information regarding the incident by management, he had
purposely decided not to tell management his version of the incident, as
opposed to the union representatives.
Dougherty said that in July 2007, however, he did participate in a board
of review hearing and spoke on Spina’s behalf, relating the same version of the
incident as he was testifying at the instant hearing.
Dougherty
admitted that in the past, he had a serious substance abuse problem but since
1980, after a rehabilitation stint and the assistance of Alcoholics Anonymous,
he has had no problem. He also admitted
that he had also been suspended pending investigation during his career at
Trump Marina.
Lori Ann
Ludovich testified about the incident involving Spina and Mangione.
Ludovich stated
that she was working on April 21, 2007, a Saturday, and overheard a
conversation between Spina and a manager, Frank Mangione, in the hallway
leading to the cafeteria. On this
occasion, she observed Spina standing with Mangione, Frank Dante, and Angel
Martinez, the latter individuals she knew were a full-time dealer and a
dual-rate supervisor, respectively.
Ludovich said she did not see John Dougherty on the scene.
Ludovich stated
that while passing the group, she heard Mangione say (loudly), “Have I ever
disrespected you?” According to
Ludovich, Spina was standing there with his brief case in hand and in a calm
voice, with his arms at his sides, replied, “No, you haven’t.” Ludovich stated that was all she happened to
hear. Ludovich said she paused to listen
for a few seconds, as the group was basically blocking the entrance to the
cafeteria but then, excusing herself, went to the cafeteria; Dante opened the
door for her.
Ludovich
emphatically stated that she had never heard Spina use any profanity—“none at
all”—over the 19 years she has worked with him and their becoming friendly
coworkers.
Ludovich noted
parenthetically that employees “off the floor” use profanity a lot in casual
conversations, mainly in the cafeteria and while walking the hallways, but
never on the casino floor, which she said would subject one to discharge “in a
heartbeat.” Ludovich stated that in her
experience she has never known anyone to be disciplined for using profanity off
the casino floor.
Ludovich also
noted in her experience that usually a suspension pending investigation is
issued after verbal and written warnings, and that most employees given such a
suspension do not return to work.
Ludovich stated
that she heard of Spina’s suspension from about three to five dealers and
during the time between his suspension and the May 11 election, employees were
talking about him. According to Ludovich,
the general reaction among the employees was one of shock because Spina was suspending
for something—using profanity—that, as she put, goes on constantly behind the
scenes and that both managers and employees use profanity, usually in the back
hallways.
Ludovich noted
that in the aftermath of Spina’s suspension, the
Theodore Taylor[86]
testified that on April 21, 2007, as he was on his way to the cafeteria, he
observed Mangione and Spina standing in the hallway near the cafeteria engaged
in conversation.[87]
Taylor said that
he was again called into Julian’s office for a second interview because another
(unnamed) shift manager wanted to hear what had happened between Spina and Mangione;
Taylor said that he repeated what he had said in the earlier interview. While he was never asked to provide a written
statement by Julian or any manager,
Taylor stated
that he has known Julian for almost 20 years and that in the meetings with him
about Spina, it seemed to him that “people” (management) were trying to direct
him to say that he knew what Spina had said to Mangione that had prompted
Mangione to say that he did not appreciate what Spina had supposedly said, and
in turn had upset him. Taylor stated
that he insisted and persisted in telling the managers that he did not know
what (if anything) Spina had said to Mangione, that he did not hear Spina use
profanity and, furthermore, did not hear Mangione say that “you guys would lose
your jobs if you go union.”
Taylor stated
(on cross-examination) that Spina was active in and excited and impassioned
about the union campaign, about the possibility of a union being voted in, and
engaged other employees about the union; but there was no (negative) change in
Spina’s “demeanor.”
Delores Summers
testified that she has known Spina for about 2 years and to her he was one of
the main persons in the union organizing effort. Summers stated that she heard of his
suspension from her coworkers, about 15 of whom told her that Spina had been suspended
for cursing to or at someone.
Summers noted
that before Spina’s suspension, the dealers would sit down and talk about the
possibility of a union coming in.
However, after Spina’s suspension, according to Summers, no one wanted
to talk about the
Kathy Perakovich
testified that she has known Spina for 20 years and that in terms of his role
in the organizing effort, he was to her probably the most important person as
he had done all of the research about the Union and was most familiar with the
issues associated with the campaign; he was the employees’ “go to guy” regarding
union matters and issues.
Perakovich
stated that she found out that Spina had been suspended pending investigation
on April 21, 2007, and that received a suspension and final warning on April
27, 2007. According to Perakovich, Spina’s
suspension was pretty much a topic of conversation among the employees in the
breakroom and cafeteria. Perakovich
stated that during her tenure with the casino, not many employees return to
work from a suspension pending investigation and ultimately such persons were
let go or fired.
Perakovich said
that she spoke daily to a lot of dealers about Spina’s suspension and she
noticed that some of their attitudes about the Union changed, their enthusiasm
for the Union wavered; the dealers no longer wanted to talk aloud about the
Perakovich
testified that she noticed that there was a fall off of about 25 percent in attendance
at the union meetings after Spina was suspended. On balance, Perakovich said that before Spina’s
suspension, there was a certain enthusiasm and motivation for the Union and
employees were looking forward to the
Diane Rieck
testified that she has known Spina for about 10 years and was aware that
management had accused him of cursing, and he had been suspended. According to Rieck, this news went around the
casino like wild fire—all of the dealers were talking about it. Rieck stated that everyone became afraid to
talk about the
Rieck also
stated that she has never known Spina to curse or even lose his temper over the
10 years of their acquaintance.
According to Rieck, Spina is basically a friendly person who did not get
excited or overreact.
Charles Gregor
testified that he became aware that Spina, whom he has known since 1985, had
been suspended pending investigating on April 21 and had received a suspension
and final warning on April 27. Gregor
stated that Spina was very active in his support of the
Gregor said that
he had never heard Spina use profanity; he was very polite.
According to
Gregor, Spina’s suspension worried him when he was approached by his pit boss,
Bruce Bell, while working a table game and told by
Gregor said that
quite a few dealers (around 10–20) were talking about Spina’s suspension, that
they could not believe what the Company was doing to him. Gregor stated that he believed a suspension
pending investigation usually meant one would be terminated.
Gregor noted
that after Spina’s suspension quite a few employees would no longer talk about
the
Gregor also
cited the example of an employee who would not come into the building when
union meetings were being held because he saw a van circling the building three
to four times and felt someone was watching and that he would possibly get in
trouble. Gregor also noted that before
Spina was suspended, about 15–20 dealers would attend union meetings; afterwards,
only a few (perhaps a half-dozen) attended.
The Respondent
called Managers Jack Julian, Karen Lew, and Frank Mangione to rebut the
Spina-related allegations.
Frank Mangione
testified, stating that he has been employed by Trump Marina for 21 years and
currently serves as a supervisor whose duties included watching the games,
making sure they operate properly, ensuring there is no stealing, and things of
that nature. (Tr. 480–481.)
Mangione
admitted that around 6–6:30 p.m. in April, he and Angel Martinez had a
conversation in the hallway outside of the cafeteria, and that Ted Taylor and
Jim Tran were present at the time although Tran left the area after a few
minutes. Mangione stated he knew John
Dougherty (having worked with him for 21 years) but that he was not present at
the time of the conversation with
Turning to the
conversation, Mangione stated that
Mangione denied
that he threatened
Mangione stated
that Spina came by a few minutes later, towards the end of the conversation
with
Mangione said he
responded to Spina, saying that he had known him for 21 years, why would he say
that to him; that he had always treated him (Spina) with respect on the tables;
that he (Mangione) had never yelled at him if he made a mistake or
whatever. Mangione said he told Spina he
had never seen Spina act this way before; he was so calm, such a calm person before.[89]
Mangione said
that at the end of the conversation, Spina apologized, saying he was really
sorry that he had said what he had and if he offended Mangione, he was
sorry. According to Mangione, Spina
asked him to accept his apology.
Mangione said that he did accept Spina’s apology.
Mangione stated
that Taylor, who was on the scene, spontaneously said, “Didn’t he just call you
an asshole?” Mangione said that
initially he did not respond. But about
a minute later,
Mangione stated
that he decided to report Spina and after breakfast went to Shift Manager
Julian’s office where Julian asked him to prepare an incident report.[90] Mangione stated he believed that this was the
right thing to do, to let management know he had been called an asshole. Mangione stated that while he was not (100
percent) sure, he believed the casino conducted an investigation of the matter,
but he was not involved in any such investigation beyond providing the incident
report. Mangione noted that he did
attend the board of review hearing on this matter.
Mangione
conceded that he had never heard Spina curse anyone—saying that ordinarily
Spina was not the type to use profanity.
However, according to Mangione, over the previous months Spina seemed
stressed out and was even making a lot of mistakes on the games. For example, according to Mangione, Spina
either overpaid a customer or “shorted” (underpaid) a customer. Mangione
said that Spina made these kinds of mistakes on his games more than one time,
but several different times, and his head did not seem to be in the game; in Mangione’s
view, Spina was not thinking straight.[91] Mangione noted that Spina was not belligerent
but, in his view, something was wrong with him.
Mangione stated that he did not report these discrepancies (or Spina’s
problems) to management; Mangione said that in those kinds of situations, “We
kind of take care of it ourselves. If
the amount is small, less than $100, management lets us take care of the
problem ourselves. If the amount is over
$100 we report the matter to the pit boss.”
Mangione
acknowledged that he used the term “lay off” in his conversation with
Jack Julian
testified about the incident involving Spina and Mangione with which he was
familiar.
According to
Julian, Mangione told him that Spina had approached him outside the cafeteria
and in the presence of Angel Martinez and Ted Taylor, accused him of saying
that a dealer could be fired if he voted for the Union; and that Spina called
him an “asshole” in the discussion in the presence of
Julian
parenthetically noted that Spina had always been generally very mild-mannered,
soft-spoken, quiet, and stayed to himself.
However, during the campaign, he was definitely more boisterous,
outgoing, and talkative. Julian stated
he noticed these changes about a month before the election.[92]
Julian testified
that he met in his office with Mangione about the matter and
Julian stated
that he interviewed
Julian testified
that he interviewed Spina on April 21 at around 5 p.m. before he interviewed
Julian said that
he decided to place Spina on investigative suspension (before speaking with
Martinez and Taylor) that day[95]
because the allegation was too serious to allow Spina to continue working while
he conducted his investigation, and he also was concerned about repeat behavior
on Spina’s part. Julian noted that in
similar situations, a dealer would be placed on investigative suspension until
the investigation was completed and would either be returned to the job or
terminated. Julian also noted that
Mangione was not placed under suspension because the casino’s policy is not to
penalize the maker of the charge.
Julian said that
although his part in the investigation ended on April 21, the casino made its
final decision 2–3 days later to uphold the suspension and issue to Spina the
time-served suspension and final notice.[96]
Julian stated
that in the end, management came to the conclusion that Spina had indeed made
the offending remarks, essentially believing Mangione’s version of the
encounter. Julian said that while
Julian noted
that as part of its investigation, the Company examined Spina’s personnel
record and determined that he had no prior incidents, that in fact, “he had a
great record.” (Tr. 544.) Accordingly, management—he and Karen
Lew—decided that in spite of his behavior, Spina would be returned to his job
because the casino liked to hold on to good workers. However, Spina was told that his
conduct—basically making a harassing remark of significant severity—would not
be tolerated in the future.
Karen Lew
testified that she has been employed by Trump Marina for about 22 years and
during the union campaign served as a casino shift manager whose
responsibilities included oversight of the gaming tables at the casino.
Lew stated that
she has known Spina for about 20 years and was familiar with the incident
involving Spina and Mangione, having been informed of such by Julian; Lew
stated that on the day of the incident, she was not working.
Lew said upon
her return to work, she investigated the matter and learned that Spina had been
suspended pending investigation because Mangione had alleged that Spina had become
confrontational with him, “almost threatening” to him, and had used profanity,
calling him an “asshole supervisor.”
Lew testified
that as part of her investigation, she interviewed
Lew stated that
she could not recall the date she interviewed
Lew stated that
she asked
Lew said her
next step was to confer with Julian and Don Brown, vice president of casino
operations, and the three of them concluded that in fact there was a verbal
altercation between Spina and Mangione, and that Spina had called Mangione an “asshole.” Spina then was brought back from his suspension
and issued the final warning by her.
Lew stated that
Spina’s misconduct was in management’s view a “serious” event, Mangione was
clearly upset, visibly so, over the entire episode, and Spina’s behavior could
not be condoned; therefore, a mere written warning would not be sufficient. However, it was management’s view that because
Spina had no other incidents on his record, he was to be issued the time-served
suspension but accompanied by a final warning notice.[99] Lew acknowledged that a suspension pending
investigation in the vast majority of cases often results in an employee’s
termination.
Lew also acknowledged
that Spina, from the beginning, denied that he used profanity and that
ordinarily Spina was indeed mild-mannered and calm as far as she knew. However, Lew noted that several months before
the election, she had noticed a change in Spina; saying that he used to be “sort
of” quiet and basically kept to himself before the union drive. Lew was careful to say, however, that she did
not assume his change was attributable to the union campaign, even when she
observed him talking to dealers (“with all these people” (Tr. 572)) or that his
activities in this regard were connected to the union campaign.
Lew stated that
she knew Spina was for the Union—he made his support quite obvious—but she did
not know he was one of the leaders. Lew
stated that other dealers told her that Spina was “very pushy” with them and
actually very aggressive toward them about the union cause. Lew stated that by “pushy,” she interpreted
this to mean that Spina (according to the dealers who spoke to her) was
insistent with the dealers and would not let the matter drop; asked people to
attend meetings and provided literature; and did not take “no” for an
answer. Lew acknowledged that none of
these other dealers ever actually complained that Spina ever used profanity as
he “aggressively” dealt with them. (Tr.
580.)
In response to
my examination, Lew stated that if a dealer repeatedly either overpays or
underpays a customer, his manager should report this to higher management because
this is a matter relating to the revenues of the casino, and in her view
connotes such “severity,” requiring action by the pit manager. Lew noted that the casino management does not
utilize a dollar amount criterion to trigger the reporting requirements in such
cases. A dealer’s repeated overpaying
and underpaying is always to be reported to upper management—a shift manager
such as herself—by the floor supervisor.
A failure to report these incidents would in itself be a violation of casino
rules. (Tr. 594.)
The General
Counsel contends that the Respondent (through Mangione) not only unlawfully
threatened an employee (Martinez) with loss of job were the Union to be voted
in, but also unlawfully issued Spina an investigative suspension costing him 3
days’ pay because Spina challenged a supervisor’s unlawful threats; to
retaliate against him; and to discourage the other employees from selecting the
Union in the coming election.
The General
Counsel submits that Mangione was clearly upset over being caught in and
accused of making unlawful statements to an eligible voter by Spina. This caused Mangione to make unsubstantiated
charges against Spina. Julian (and Lew),
compounding the matter, then decided to discipline Spina based on these unsubstantiated
assertions. The General Counsel asserts
this action was taken because Spina had over the course of the campaign been
transformed from the quiet loner to an effective leader and advocate for the
union cause.
The General
argues that the Respondent’s investigation of the incident was summarily swift
and one-sided with no serious effort on its part to ascertain (the truth of)
Spina’s position, any witnesses that would support his steadfast denials of
cursing or to give him any opportunity before suspension to elaborate on the
allegation that left not only Spina shocked and dismayed, but the entire dealer
cadre.
On balance, the
General Counsel asserts that Spina was disparately treated as compared to other
employees disciplined for similar behavior.
She asserts that Spina did not, as the others cited by the Respondent,
misbehave in front of customers and, moreover, his allegedly offending behavior
was not corroborated. The General
Counsel further contends that the Respondent also did not follow its own
disciplinary procedures in Spina’s case, accelerating his alleged misconduct to
the draconian suspension and termination warning level, as opposed to the
normally imposed lesser disciplines.
The General
Counsel argues that it is clear that Spina’s well known activities on behalf
and in support of the union cause were motivating factors in the Respondent’s
imposition of discipline and that based on its history of the treatment of
other employees who may have used profanity, his discipline was extreme. She argues that were it not for Spina’s union
activities, he would not have received the investigative and time-served
suspension for the conduct in which he allegedly engaged. Therefore, the Respondent’s defense that he
would have been disciplined as he was irrespective of his union activities
fails.
The Respondent
argues essentially that it lawfully suspended and issued Spina a discipline for
improper behavior on April 21. The
Respondent concedes that it knew of Spina’s prounion activity but that it did
not discipline him out of any animus to his activities or the Union; and that
Spina’s discipline was not issued out of his having engaged in protected
activity. The Respondent asserts that
the accusations against Spina were investigated by the Company and as a result,
it was properly determined that Spina had engaged in aggressive behavior and
had used profanity in dealing with a supervisor.
The Respondent
further asserts that even if it mistakenly disciplined Spina for cursing, it
did so in the good-faith belief that he had engaged in objectionable
conduct. The Respondent notes that
management had noticed a change in Spina’s demeanor over the campaign—he had
become more aggressive about the Union—and its deduction—that the term asshole
was uttered by him—was reasonable under the circumstances. The Respondent asserts that in spite of this,
Spina was not disciplined as harshly as others who had committed similar infractions,
which demonstrates a lack of animus against him or his activities. In fact, the Respondent asserts that Mangione
had covered up for Spina’s mistakes on the games during the union campaign and
this, too, evinces that he harbored no antiunion sentiments toward Spina.
Regarding
Mangione’s alleged threat to
The Respondent
contends that Spina came in at the end of the conversation between
When one
distills the undisputed facts associated with the Spina incident, the following
scenario emerges.
Mangione and
Spina,
overhearing this conversation, then told Mangione in the presence of
It is also
undisputed that the Respondent at the time knew of Spina’s high profile activities
in support of the union cause and his electioneering activities; in fact, his
behavior was being observed for some time by the casino management, including
his supervisors who came to the belief that he was undergoing a profound change
in his demeanor, from a mild-mannered, quiet employee to an aggressive “pushy”
advocate for the Union.
It is beyond
dispute that the Respondent conducted an investigation of the Spina incident,
which included interviews of Spina, Mangione,
For purposes of Wright Line, in my view the General Counsel
has overwhelmingly met her burden to show the Respondent’s knowledge of Spina’s
having engaged in protected activities, and the Respondent readily concedes
this point. There is, of course, no
issue that Spina suffered an adverse action affecting his employment. The question remains whether the General
Counsel established prima facie that Spina was disciplined out of an improper
motive. I believe that she has.
Clearly, beyond
its opposition to the union cause, the Respondent, through its agents,
expressed hostility to the union cause generally, and in my view to Spina
personally. As noted, I have found
previously herein violations of Section 8(a)(1) by dint of the conduct of the
Respondent’s supervisors in their dealings with other employees during the
campaign, which in turn support a finding of animus against the Union and its
supporters, and derivatively supplies the motivation connection for Spina’s
case.
Then, too, it is
most significant to me that Spina’s discipline occurred in the context of his
engaging in protected activity—correcting (expressing) what he thought was an
erroneous and possibly unlawful statement by a supervisor to an eligible voter
in the upcoming election and which activity incidentally took place in a
nonwork area. Spina’s discipline emanated
from that context and, in my view, this fact also supplies the necessary
connection to the Wright Line
motivation element.
The remaining
issue is whether the Respondent has met its burden to show that its discipline
of Spina was lawful, that in this case the Company did not treat Spina
disparately or it would have taken the action it did against him irrespective
of his having engaged in protected activities.
I believe that it has not on both counts.
Based on this
record, I do not view this case in the strict sense as one involving disparate
treatment. Rather, in my view, this case
sounds in pretext. Therefore, it is irrelevant to discuss how Spina was treated
vis-a-vis other employees who were disciplined for arguably similar on-the-job
misconduct. My reasons are as follows.
I have carefully
considered the testimony of Mangione on whose complaint Spina received his
discipline. I believe that Mangione was
not truthful when he made his complaint against Spina to Julian, specifically
alleging that Spina had cursed him.
First and
foremost, no one within earshot of the conversation between Spina and Mangione
heard Spina utter a profane remark.
All of the other
witnesses, those known to the Respondent at the time as well as those who
testified at the hearing, also stated unequivocally that Spina did not curse in
the encounter. Actually, the offending
profanity—“asshole”—was uttered not by Spina but by Taylor who claimed that he
only did so in jest as he saw Mangione standing in the hallway alone.[101]
It was at this
point that Mangione, in my view, seized upon
So after all is
said and done, if Mangione is to be believed, Spina for a period of time was
acting out of sorts and making serious mistakes at his tables and was
undergoing serious demeanor changes, but these were not of such serious nature
to be reported to management. However,
according to Mangione, calling him a profane remark was a reportable incident. Frankly, I believe that Mangione made the
whole charge up, perhaps because he was chagrined or embarrassed over Spina’s
calling him to task for trying to influence Martinez or perhaps because he
feared that Spina would report the matter to the Union or casino management,
and a charge might be filed against him;[102]
or perhaps he lied to gain favor with management and to get the “union boy.” So Mangione had ample motive to lie about his
encounter with Spina to management, and lie he did in my view.
As to Spina’s
managers, it is clear that Julian was opposed to the
Nonetheless,
contrary to the Respondent, under such circumstances, I cannot conclude that
Spina was the unfortunate victim of management’s good faith but mistaken belief
that he violated company policy and deserved to be severely disciplined. I would find and conclude that the Respondent’s
discipline of Spina was pretextual, based on a willful misrepresentation of a
supervisor and acted on not in good faith by Spina’s managers, who were hostile
to the union cause. Rather, Spina’s discipline
was based on his activities and support for the Union and to discourage the employees
in their support of the
Regarding the
allegation that Mangione threatened
I would also
find that Spina’s discipline as well as Mangione’s remarks to
vii. discussion and
conclusions regarding the
As noted
previously herein, the Board employs an objective standard for evaluating the
conduct of a party in the context of representation elections. Stated simply, the objecting party must show
that a Board-supervised election should be set aside because the conduct of a
party affected the employees in the voting unit and such conduct had a
reasonable tendency to affect the outcome of the election. Also, as previously noted, the Board
considers a number of factors in determining whether the alleged misconduct had
the tendency to interfere with the employees’ freedom of choice.
I have
considered applicable Board law and applied these principles aforestated to the
case, fully recognizing that Board-supervised elections should not be lightly
set aside. It would be my recommendation
that the May 11, 2007 election results be set aside and another election
scheduled as soon as possible because of the objectionable conduct of the Respondent
in this matter.
I have
determined that the Respondent has violated the Act on several occasions during
the course of the election campaign. I
have also found that the Respondent did not commit certain unfair labor
practices and did not engage in otherwise objectionable conduct. However, on balance, I believe that the violations
I have determined to be violative of the Act were serious and vitiated the
laboratory conditions the Board requires in its elections.
In agreement
with the Union, I am persuaded that the Respondent’s suspension of Spina,
clearly the
I will not
repeat the testimony of the witnesses who spoke to the issue, but suffice it to
say that after Spina’s suspension, discussion about the Union, let alone open
and free support of the
As argued by the
Union, Spina’s discipline caused a fear of reprisal among the voters, some of
whom stopped attending union meetings and were watchful of what they said and
did regarding the topic of the
Notably, Spina,
the “go-to guy,” testified that after he was suspended, he reduced his
activities and told union supporters like Summers to watch out in their
dealings with management because of what happened to him. Gregor testified that he was fearful for his
job after his encounter with managers because of Spina’s experience.
I note that not
only did Spina’s suspension negatively affect the employees’ right to choose,
it seems that his punishment seemingly emboldened managers and other employees
in their opposition to the
While I have
found that certain unfair labor practice allegations were not established and
the objections in each case not sustainable, it is clear to me that around the
time of Spina’s suspension and its aftermath, the Respondent’s managers, like
Sych and Julian, believed they could go a little further in their opposition to
the Union with the employees because of Spina’s punishment. This in my view contaminated the electoral
process.
I note that
after Spina’s suspension, even the casino employees who opposed the
This was
admittedly a hotly contested and contentious election with a close result out
of the
I have at some
length and pains set out the testimony of the various witnesses. On balance, the credible evidence leads me to
conclude that this election should be set aside, and I would so recommend.
Conclusions of Law
1. The
Respondent, Trump Marina Associates LLC d/b/a Trump Marina Hotel Casino, is an
employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union,
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL–CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. The
Respondent violated Section 8(a)(1) of the Act by engaging in the following conduct:
(a)
Interrogating employees regarding their sympathies for the
(b) Threatening
not to grant employees’ requests for time off, approve schedule changes, or
correct no-call/no-show designations if they were to select the
(c) Threatening
that employees would lose their jobs if the
4. The
Respondent violated Section 8(a)(3) of the Act by engaging in the following conduct:
(a) Issuing
employee Mario Spina a suspension pending investigation because of his support
for and activities on behalf of the
(b) Issuing
employee Mario Spina a final warning and time-served suspension because of his
support for and activities on behalf of the
5. The
Respondent engaged in objectionable conduct affecting the results of the May
11, 2007 election as set forth in 3(a), (b), and (c) and 4(a) and (b)
sufficient to warrant that the representation election results in this matter
be set aside and a new election be scheduled and held by the Region.
6. The unfair
labor practices described above affect commerce within the meaning of Section
2(6) and (7) of the Act.
7. The
Respondent has not violated the Act in any other manner or respect.
Remedy
Having found
that the Respondent has engaged in certain unfair labor practices and
objectionable conduct, I find that it must be ordered to cease and desist and
take certain affirmative action designed to effectuate the policies of the Act.
1. The
Respondent, having discriminatorily issued employee Mario Spina an investigative
suspension, and having issued him a time-served suspension and final warning in
violation of Section 8(a)(3) of the Act, I shall recommend that it be ordered
to make him whole for any losses he may have suffered as a consequence of the
action taken against him in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), and interest shall be computed in
accordance with New Horizons for the Retarded,
283 NLRB 1173 (1987).
2. The
Respondent having discriminatorily issued a written disciplinary warning to
Mario Spina in violation of Section 8(a)(3) of the Act, I shall recommend that
it be ordered to rescind the disciplinary warning and expunge all references
thereto from its records.
3. The
Respondent, having discriminatorily suspended Mario Spina in violation of
Section 8(a)(3) of the Act, I shall recommend that it be ordered to rescind the
suspension warning and expunge all references thereto in its records and make
him whole for all losses he may have incurred as a result of the actions taken
against him.
4. The
Respondent, having engaged in certain objectionable conduct during the representation
election sufficient to warrant that the election results be set aside, the
Regional Director for Region 4 shall set aside the election results and
schedule a new election as soon as is reasonably possible.
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended[105]
ORDER
The Respondent,
Trump Marina Associates LLC d/b/a Trump Marina Hotel Casino,
1. Cease and
desist from
(a)
Interrogating its employees about their union membership, activities,
sympathies, and support.
(b) Threatening
employees with loss of their jobs if they selected the
(c) Issuing
written disciplinary warnings to employees because of their support and
activities on behalf of the
(d) Issuing
suspensions to employees because of their support and activities on behalf of
the
(e) Issuing
disciplinary warnings to employees because of their support and activities on
behalf of the
(f) Engaging in
objectionable conduct during a Board-regulated and administered representation
election.
(g) In any other
manner interfering with, restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act.
(a) Make
discriminatee Mario Spina whole for any loss of earnings and other benefits
they suffered as a result of the unlawful action taken against him, as computed
in accordance with F. W. Woolworth Co.,
supra, with interest as computed in New
Horizons for the Retarded, supra.
(b) Within 14
days from the date of this Order, remove from its records all references to the
unlawful actions taken against the discriminatee, Mario Spina, and within 3
days thereafter, advise him in writing that this has been done and that these
actions shall not be used against him in any manner in the future.
(c) Preserve
and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due under the terms of this Order.
(d) Within 14
days after service by the Region, post at its facility in
(e) The Regional
Director for Region 4 shall set aside the results of the May 11, 2007 election
and schedule as soon as is reasonably possible a new election.
(f) Within 21
days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National
Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not interrogate our employees about their union membership,
activities, sympathies, and support.
We will not threaten our employees with loss of their jobs if they
selected International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL–CIO as their bargaining representative.
We will not issue written disciplinary warnings to our employees
because of their support and activities on behalf of International Union,
United Automobile, Aerospace and Agricultural Implement Workers of America,
AFL–CIO.
We will not issue disciplinary suspensions to our employees because of
their support and activities on behalf of International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, AFL–CIO.
We will not engage in objectionable conduct during representation
elections regulated and administered by the Board.
We will not in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed them by Section 7 of the
Act.
We will make discriminatee Mario Spina whole for any loss of
earnings and other benefits he suffered as a result of our unlawful action
against them, with interest.
We will remove from our records all references to the unlawful
action taken against the discriminatee, Mario Spina, and advise him in writing
that this has been done and that these actions shall not be used against them
or him in any manner in the future.
Trump