Horseshoe Bossier City Hotel & Casino

National Labor Relations Board - Board Decisions

May 15, 2020

369 N.L.R.B. 80 (N.L.R.B. 2020)

369 NLRB No. 80
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Horseshoe Bossier City Hotel & Casino and Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW). Cases 15–CA–215656, 15–CA–216517,
15–CA–217795, 15–CA–217797, and 15–CA–
218097
May 15, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On July 30, 2019, Administrative Law Judge Robert A.
Ringler issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General Coun-
sel and the Charging Party filed answering briefs, and the
Respondent filed a reply brief. Thereafter, the Respondent
filed amended exceptions, and the Charging Party filed an
answering brief to the Respondent’s amended exceptions.1
1 In its answering brief, the Charging Party argued that the Respond-
ent’s exceptions and supporting brief failed to comply with Sec. 102.46
of the Board’s Rules and Regulations in part because the supporting brief
did not refer directly to the exceptions. Thereafter, the Respondent filed
amended exceptions to cross-reference relevant portions of its supporting
brief, and the Charging Party filed an answering brief to the Respond-
ent’s amended exceptions. On December 2, 2019, the Board, by its As-
sociate Executive Secretary, accepted the Respondent’s amended excep-
tions and the Charging Party’s answering brief to the Respondent’s
amended exceptions.
2 In the absence of exceptions, we adopt the judge’s finding that the
Respondent violated Sec. 8(a)(1) of the Act by prohibiting employees
from distributing union organizing materials in nonwork areas during
nonwork time. There are also no exceptions to the judge’s dismissal of
the complaint allegations that the Respondent violated Sec. 8(a)(3) and
(1) by assigning employees work on their scheduled Saturdays off and
by allowing part-time dealers to bid on full-time dealer positions.
3 The Respondent excepts to the judge’s rejection of certain exhibits,
consisting of emails and incident reports, which the Respondent contends
would demonstrate that its DRDs are statutory supervisors. We find that
the judge did not abuse his discretion by rejecting these exhibits. See,
e.g., Boeing Co., 364 NLRB No. 24, slip op. at 1 fn. 2 (2016).
4 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
In addition, some of the Respondent’s exceptions allege that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire rec-
ord, we are satisfied that the Respondent’s contentions are without merit.
5 We have amended the judge’s conclusions of law consistent with
our findings herein. We have also amended the remedy and modified
the judge’s recommended Order consistent with our legal conclusions
The National Labor Relations Board has considered the
decision and the record in light of the exceptions, amended
exceptions,2 and briefs and has decided to affirm the
judge’s rulings,3 findings,4 and conclusions only to the ex-
tent consistent with this Decision and Order.5
The issues in this case arose from the Union’s campaign
to organize dealers and dual-rate dealers (DRDs) at the
Respondent’s hotel and casino in Bossier City, Louisiana,
which began in early 2018.6 The campaign was initiated
by DRD Judith Murduca, and the Respondent first learned
of the campaign on February 27, when union leaflets were
distributed in its garage. The judge found, and we agree,
that the Respondent failed to establish that DRDs are su-
pervisors within the meaning of Section 2(11) of the Act,7
and we additionally find that the Respondent failed to
demonstrate that DRDs are managerial employees.8 Fur-
ther, we agree with the judge, for the reasons stated in his
decision and as further discussed herein, that the Respond-
ent violated Section 8(a)(1) by (1) interrogating DRD
Murduca, (2) soliciting grievances and impliedly promis-
ing to remedy them,9 (3) threatening that employees would
no longer be permitted to ask for a last-minute day off,10
herein, to conform to the Board’s standard remedial language, and in ac-
cordance with our recent decision in Danbury Ambulance Service, Inc.,
369 NLRB No. 68 (2020). We have substituted a new notice to conform
to the Order as modified.
6 All dates are in 2018 unless otherwise noted.
7 In addition to the reasons stated by the judge for its failure to estab-
lish supervisory status, we find that the Respondent failed to show that
DRDs assign dealers to and release them from games by changing bet-
ting limits, as the record demonstrates that the pencil and shift supervi-
sors possess this authority.
8 The judge did not address the Respondent’s contention that the
DRDs are managerial employees. However, we find the Respondent’s
contention is without merit, as the Respondent failed to show that DRDs
“formulate and effectuate high-level employer policies or . . . have dis-
cretion in the performance of their jobs independent of their employer’s
established policy.” Republican Co., 361 NLRB 93, 95 (2014) (internal
quotations omitted). Significantly, the record shows that the DRDs do
not control the Respondent’s labor costs, and the DRDs’ monitoring of
cash flow based on federal regulations is not indicative of managerial
status.
9 We adopt the judge’s finding that the Respondent, by Director of
Operations Roger Dodds, unlawfully solicited grievances on February
28 by asking employees involved in the union campaign, “What do you
really want?” and writing down their grievances, inviting them to meet
with General Manager Mike Rich, and stating he (Dodds) would discuss
these matters with Rich. In view of this finding, we find it unnecessary
to pass on the judge’s finding that the Respondent also solicited griev-
ances in mid-March, as this finding would be cumulative of the other
violation found and would not affect the remedy.
10 We adopt the judge’s finding that the Respondent unlawfully threat-
ened a loss of benefit on March 2, when General Manager Rich told em-
ployees they would no longer be permitted to ask for a last-minute day
off if they unionized. We find it unnecessary to pass, however, on the
judge’s additional findings that the Respondent threatened a loss of ben-
efits on February 28 and March 1 and 17, as these findings would be
cumulative of the other violation found and would not affect the remedy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(4) telling DRDs that they are supervisors and cannot
vote,11 (5) creating the impression of surveillance,12 (6)
blaming the Union for DRDs not being permitted to bid
on full-time dealer positions,13 and (7) ordering employees
to remove their union pins. In addition, we adopt the
judge’s findings that the Respondent violated Section
8(a)(3) and (1) by refusing to consider DRDs for full-time
dealer positions14 and by discharging DRD Murduca.15
11 In affirming this finding by the judge, we rely on DRD Murduca’s
credited testimony that on March 2, General Manager Rich stated that
“dual rates would not have an opportunity to vote for the Union, because
we are considered supervisors.” We further note that Dealer Tasha Sim-
mons’ testimony that Director of Operations Dodds stated that DRDs
“weren’t going to be able to [sign] a card trying to join the Union because
they would be considered as full-time floors [supervisors]” tends to cor-
roborate Murduca’s testimony because it indicates that the Respondent
repeatedly told DRDs that they were supervisors to discourage their un-
ion activity. See Shelby Memorial Home, 305 NLRB 910, 910 fn. 2
(1991) (“An employer acts at its peril when it takes steps calculated to
chill the exercise of Sec[.] 7 rights by individuals who may later be found
to be under the protection of the Act.”), enfd. 1 F.3d 550 (7th Cir. 1993).
Member Emanuel joins his colleagues in finding the 8(a)(1) violation
under the facts and circumstances here. However, he notes that in other
circumstances the Board has found an employer’s statement of its legal
opinion that an employee is a supervisor and cannot vote in an election
insufficient to support an 8(a)(1) violation. See, e.g., Armstrong Ma-
chine Co., 343 NLRB 1149, 1152 (2004) (Board found manager’s state-
ments to employees that they were ineligible to vote in the election be-
cause both were supervisors, and the manager’s response—after the em-
ployees disputed his claim—that their supervisory status would be re-
solved through a hearing, to be a “benign expression of [the manager’s]
opinion [that] would not reasonably tend to intimidate or coerce employ-
ees in the exercise of their protected activity.”).
12 In affirming the judge’s finding that Director of Operations Dodds
unlawfully created the impression of surveillance by telling employees
that the “Union [was] formed [by] . . . an employee . . . [who] met this
guy at a bar . . . [and that it] only needed 46 more votes to get it passed,”
we rely on Grand Canyon Mining Co., 318 NLRB 748, 752–753 (1995)
(collecting cases where employers unlawfully created impression of sur-
veillance with statements containing specific numerical information
about employees’ union activity, without legitimate explanations of how
they acquired such specific information), enfd. 116 F.3d 1039 (4th Cir.
1997).
13 In affirming the judge’s finding that the Respondent unlawfully
blamed the Union for DRDs not being permitted to bid on full-time
dealer positions, we rely on Larid Printing, Inc., 264 NLRB 369, 369
(1982) (employer unlawfully blamed union campaign for employee’s in-
ability to get promotion).
14 In adopting this refusal-to-consider finding, we find in agreement
with the judge that the Respondent’s animus is demonstrated by the un-
fair labor practices found herein. However, we do not rely—as did the
judge—on the Respondent’s promise that DRDs could bid on full-time
dealer positions, as we have reversed the judge’s finding that the Re-
spondent’s statement was unlawful.
We also agree that the Respondent failed to meet its defense burden.
Specifically, we find unavailing the Respondent’s assertion that it has
not allowed DRDs to become full-time dealers for over 20 years. First,
it is undisputed that it has not posted any full-time dealer positions in
over 7 years. Additionally, before the union campaign went public, the
Respondent repeatedly told DRDs that they would have an opportunity
to bid on full-time dealer positions, and after the commencement of the
campaign it told DRDs that they were supervisors and could not vote.
However, we reverse the judge and dismiss the com-
plaint allegation that the Respondent violated Section
8(a)(1) by promising DRDs the right to bid on full-time
dealer positions. The judge found that this promise, made
by Director of Operations Roger Dodds, was unlawful be-
cause it occurred at a meeting with employees in mid-
March, after the Respondent learned of the union cam-
paign on February 27. The judge’s finding does not fully
Moreover, the Respondent blamed the Union for its failure to offer DRDs
dealer positions rather than referencing a policy that would prohibit
DRDs from becoming full-time dealers. In these circumstances, we find
that the Respondent has failed to demonstrate that it would not have con-
sidered the DRDs for the dealer positions in the absence of the union
campaign. See, e.g., Beacon Electric Co., 350 NLRB 238, 242 (2007)
(finding employer failed to meet its rebuttal burden where evidence
shows it did not rely on its asserted referral policy in rejecting applicants
for employment), enfd. 504 Fed.Appx. 355 (6th Cir. 2012); see also C&K
Insulation, Inc., 347 NLRB 773, 773–774 (2006) (“An employer cannot
simply present a legitimate reason for its action but must persuade by a
preponderance of the evidence that the same action would have taken
place even in the absence of the protected activity.”) (internal quotations
omitted).
15 In adopting the judge’s finding that the General Counsel established
that DRD Murduca’s union activity was a motivating factor in the Re-
spondent’s decision to discharge her, we do not rely on the judge’s state-
ment that “Dodds sought out Murduca” on the day that he interrogated
her. In fact, Murduca testified that she approached Dodds. The judge’s
inadvertent error does not affect our finding that Murduca was unlaw-
fully discharged. Further, we agree with the judge that the Respondent’s
unfair labor practices evince animus, but we do not rely—as did the
judge—–on the Respondent’s promise that DRDs could bid on full-time
dealer positions, as we have reversed the judge’s finding that this state-
ment was unlawful, as discussed below. In addition, we find that the
Respondent’s animus is further evinced by the timing of the discharge,
as it occurred just 6 weeks after the union campaign that Murduca initi-
ated went public. See generally Charter Communications, LLC, 366
NLRB No. 46, slip op. at 7 (2018) (timing of discharge, within 3 months
of learning of union activity, supported finding of animus), enfd. 939
F.3d 798 (6th Cir. 2019).
We further find that the Respondent’s stated reasons for discharging
Murduca were exaggerated and therefore pretextual. See, e.g., Electri-
Flex Co., 238 NLRB 713, 725 (1978) (finding pretext where respondent
exaggerated minor incident), enfd. mem. 624 F.2d 1103 (7th Cir. 1979),
cert. denied 447 U.S. 924 (1980). Specifically, we note that Murduca’s
discharge document states, in part, that she “asked another coworker
whether she was from South Louisiana and whether she knew anything
about spells and Voodoo. To make a stereotypical association between
someone and a particular religion is offensive.” However, as found by
the judge, the record shows that religious jokes were common and toler-
ated by the Respondent’s management. Moreover, Murduca only used
the word “spells” during the exchange, not “voodoo,” and Casino Oper-
ations Shift Manager Jason Williams admitted he had simply presumed
that the incident related to voodoo and religion. Accordingly, because
the Respondent’s stated reasons for Murduca’s discharge were pre-
textual, the Respondent has failed by definition to meet its burden of
proving that it would have discharged Murduca in the absence of her
protected union activity. See Golden State Foods Corp., 340 NLRB 382,
385 (2003).
Finally, for the reasons stated in Tschiggfrie Properties, Ltd., 368
NLRB No. 120 (2019), we decline the Respondent’s request that the
Board modify the Wright Line standard by adding a fourth nexus ele-
ment.
HORSESHOE BOSSIER CITY HOTEL & CASINO 3
consider that employees Murduca, Lisa Rios, Tawana
Sumbler, and Roger Patton all credibly testified that at
meetings in January (i.e., before learning of the union
campaign), Dodds repeatedly stated that DRDs would
have an opportunity to bid on full-time dealer positions.16
Consequently, Dodds’ similar remarks about bidding op-
portunities at a mid-March meeting merely repeated the
earlier statements he made before the Respondent learned
of the union campaign.17 As such, the mid-March remarks
do not support the judge’s finding of an unlawful promise
of a benefit. See, e.g., Hampton Inn NY-JFK Airport, 348
NLRB 16, 17–18 (2006) (explaining that the Board will
not find a violation where an employer promises a benefit
before becoming aware of a union campaign). Accord-
ingly, we find that the Respondent did not violate Section
8(a)(1) by promising employees the new bidding rights.
AMENDED CONCLUSIONS OF LAW
1. Delete paragraph 1(f) and reletter the subsequent par-
agraphs accordingly.
2. Add the following as Conclusion of Law 6.
“6. The Respondent has not otherwise violated the Act
as alleged in the complaint.”
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, we amend the
judge’s remedy in the following respects.
We shall order the Respondent to consider DRDs found
at a compliance proceeding to have been refused consid-
eration for the full-time dealer positions that were posted
on March 23, 2018, for future openings in those positions
or, if the positions no longer exist, for future openings in
substantially equivalent positions. If it is shown at a com-
pliance stage of this proceeding that, but for its failure to
consider them, the Respondent would have selected any of
these employees for the full-time dealer positions, the Re-
spondent shall be ordered to offer those individuals any
such positions or, if the positions no longer exist, substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges they would have en-
joyed absent the Respondent’s unlawful actions, and to
make them whole for any loss of earnings and other bene-
fits suffered as a result of the Respondent’s unlawful ac-
tions. Because the refusal-to-consider violation does not
16 In his decision, the judge inadvertently stated that employees Mur-
duca, Rios, Sumbler, and Patton testified regarding statements that
Dodds made at meetings in mid-March. In fact, their testimony indicates
that the meetings occurred in January.
17 In finding that Dodds made the promises of bidding rights in mid-
March, the judge relied in part on the credited testimony of Tasha
involve a cessation of employment, backpay shall be com-
puted in accordance with Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
Additionally, we shall order the Respondent to compen-
sate the DRD discriminatees, if any, to be identified in a
subsequent compliance proceeding for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and to file with the Regional Director for Region
15, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allocat-
ing the backpay awards to the appropriate calendar years
for each employee. AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016).
ORDER
The National Labor Relations Board orders that the Re-
spondent, Horseshoe Bossier City Hotel & Casino, Boss-
ier City, Louisiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Prohibiting employees from distributing union or-
ganizing materials in nonwork areas during nonwork time.
(b) Coercively interrogating employees about their un-
ion activities or those of other employees.
(c) Soliciting grievances from employees and impliedly
promising to remedy them in order to discourage employ-
ees from supporting the International Union, United Au-
tomobile, Aerospace and Agricultural Implement Workers
of America (UAW) (the Union) or any other labor organ-
ization.
(d) Threatening employees that they will no longer be
able to request a last-minute day off or threatening the loss
of other benefits if they select the Union as their bargain-
ing representative.
(e) Telling dual-rate dealers (DRDs) that they are su-
pervisors who cannot vote in the union election.
(f) Creating the impression that it is engaged in surveil-
lance of its employees’ union or other protected concerted
activities.
(g) Blaming the Union for DRDs not being permitted
to bid on full-time dealer positions.
(h) Ordering employees to remove union pins from
their ID badges.
Simmons that at a mid-March meeting, Dodds stated that the Respondent
was “going to open up full-time positions if . . . dual rates wanted to be-
come full-time dealers.” However, the judge also, and erroneously, re-
lied on Murduca’s testimony addressing comments Dodds made at a Jan-
uary meeting. In finding that Dodds made the mid-March statement, we
rely solely on the testimony of Simmons.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(i) Refusing to consider DRDs for full-time dealer po-
sitions because of their union activities.
(j) Discharging or otherwise discriminating against em-
ployees for supporting the Union or any other labor organ-
ization.
(k) In any like or related manner interfering with, re-
straining, 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) Within 14 days from the date of this Order, rescind
its prohibition against hiring DRDs for full-time dealer po-
sitions and notify DRDs in writing that any future job ap-
plications will be considered in a nondiscriminatory way.
(b) Consider DRDs found at a compliance proceeding
to have been refused consideration for the full-time dealer
positions that were posted on March 23, 2018, for future
openings in those positions or, if the positions no longer
exist, for future openings in substantially equivalent posi-
tions. If it is shown at a compliance stage of this proceed-
ing that, but for its failure to consider them, the Respond-
ent would have selected any of these employees for the
full-time dealer positions, the Respondent shall offer those
individuals any such positions, replacing the current occu-
pants of those positions if necessary, or, if the positions no
longer exist, substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
they would have enjoyed absent the Respondent's unlaw-
ful actions, and make them whole for any loss of earnings
and other benefits suffered as a result of those unlawful
actions in the manner set forth in the remedy section of
this decision.
(c) Compensate the DRD discriminatees, if any, to be
identified in a subsequent compliance proceeding for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards, and file with the Regional Director for
Region 15, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar
years for each employee.
(d) Remove from its files any references to the unlawful
refusal to consider the DRD discriminatees, if any, to be
identified in a subsequent compliance proceeding, and no-
tify them in writing that this has been done and that the
18 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facility involved in
these proceedings is closed due to the Coronavirus Disease 2019
(COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have re-
turned to work, and the notices may not be posted until a substantial com-
plement of employees have returned to work. Any delay in the physical
unlawful discrimination will not be used against them in
any way.
(e) Within 14 days from the date of this Order, offer
Judith Murduca full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent po-
sition, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(f) Make Murduca whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against her, in the manner set forth in the remedy section
of the judge’s decision.
(g) Compensate Murduca for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 15, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the back-
pay award to the appropriate calendar years.
(h) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge, and
within 3 days thereafter, notify Murduca in writing that
this has been done and that the discharge will not be used
against her in any way.
(i) 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 desig-
nated 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, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(j) Post at its Bossier City, Louisiana facility copies of
the attached notice marked “Appendix.”18 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 15, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
posting of paper notices also applies to the electronic distribution of the
notice if the Respondent customarily communicates with its employees
by electronic means. If this Order is enforced by a judgment of a United
States court of appeals, the words in the notice reading “Posted by Order
of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
HORSESHOE BOSSIER CITY HOTEL & CASINO 5
other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
February 27, 2018.
(k) Within 21 days after service by the Region, file with
the Regional Director for Region 15 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. May 15, 2020
John F. Ring, Chairman
_
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT prohibit you from distributing union or-
ganizing materials in nonwork areas during your nonwork
time.
WE WILL NOT coercively question you about your union
activities or those of other employees.
WE WILL NOT solicit grievances from you and impliedly
promise to remedy them in order to discourage you from
supporting the International Union, United Automobile,
Aerospace and Agricultural Implement Workers of Amer-
ica (UAW) (the Union) or any other labor organization.
WE WILL NOT threaten that you will no longer be able to
request a last-minute day off or threaten the loss of other
benefits if you select the Union as your bargaining repre-
sentative.
WE WILL NOT tell dual-rate dealers (DRDs) that they are
supervisors who cannot vote in the union election.
WE WILL NOT create the impression that we are engaged
in surveillance of your union or other protected concerted
activities.
WE WILL NOT blame the Union for DRDs not being per-
mitted to bid on full-time dealer positions.
WE WILL NOT order you to remove union pins from your
ID badges.
WE WILL NOT refuse to consider DRDs for full-time
dealer positions because of their union activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the Union or any other
labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, rescind our prohibition against hiring DRDs for
full-time dealer positions and notify DRDs in writing that
any future job applications will be posted and considered
in a nondiscriminatory way.
WE WILL consider DRDs found at a compliance pro-
ceeding to have been refused consideration for the full-
time dealer positions that were posted on March 23, 2018,
for future openings in those positions or, if the positions
no longer exist, for future openings in substantially equiv-
alent positions. However, if it is shown at a compliance
proceeding that, but for our failure to consider them, we
would have selected any of these employees for the full-
time dealer positions, WE WILL offer those individuals any
such positions, replacing the current occupants of those
positions if necessary, or, if the positions no longer exist,
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges they would
have enjoyed absent our unlawful actions, and WE WILL
make them whole, with interest, for any loss of earnings
and other benefits suffered as a result of our unlawful ac-
tions.
WE WILL compensate the DRD discriminatees, if any,
to be identified in a subsequent compliance proceeding for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
the adverse tax consequences, if any, of receiving lump-
sum backpay awards, and WE WILL file with the Regional
Director for Region 15, within 21 days of the date the
amount of backpay is fixed, either by agreement or Board
order, a report allocating the backpay awards to the appro-
priate calendar years for each employee.
WE WILL remove from our files any references to the
unlawful refusal to consider the DRD discriminatees, if
any, to be identified in a subsequent compliance proceed-
ing, and WE WILL notify them in writing that this has been
done and that the unlawful discrimination will not be used
against them in any way.
WE WILL, within 14 days from the date of the Board’s
Order, offer Judith Murduca full reinstatement to her for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
WE WILL make Murduca whole for any loss of earnings
and other benefits resulting from her discharge, less any
net interim earnings, plus interest, and WE WILL also make
Murduca whole for reasonable search-for-work and in-
terim employment expenses, plus interest.
WE WILL compensate Murduca for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 15, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharge of Murduca, and WE WILL, within 3 days there-
after, notify her in writing that this has been done and that
the discharge will not be used against her in any way.
HORSESHOE BOSSIER CITY HOTEL & CASINO
The Board’s decision can be found at
https://www.nlrb.gov/case/15-CA-215656 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
1 The General Counsel’s (the GC’s) motion to correct the record dated
February 25, 2019, is granted.
2 Unless otherwise stated, factual findings arise from joint exhibits,
stipulations, and undisputed evidence.
3 The GC’s motion to withdraw complaint ¶¶10(c), (d), and 15(a)
dated February 25, 2019, is granted.
4 Games have comprehensive rules of play, which are set forth in
hard-copy binders and on computers in the gaming pits. Computers rate
gamblers and calculate their reward, credit and “comp” eligibility.
Beau Pines and David Rose, Esqs., for the General Counsel.
Charles Birenbaum and Jonathan Sack, Esqs. (Greenberg
Traurig, L.L.P.), for the Respondent.
Samuel Morris, Esq. (Godwin, Morris, Laurenzi & Bloomfield,
P.C.), for the Charging Party
.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This case
was tried in Shreveport, Louisiana over multiple days in 2018
and early 2019. The complaint averred that the Horseshoe Boss-
ier City Hotel & Casino (Horseshoe or the Respondent) violated
Section 8(a)(3) and (1) of the National Labor Relations Act (the
Act) by, inter alia: making threats; soliciting grievances; and fir-
ing Judy Murduca for her union activities. On the record, I make
the following1
FINDINGS OF FACT2
I. JURISDICTION
Annually, Horseshoe, a corporation with a hotel and casino in
Bossier City, Louisiana, earns over $500,000 in gross revenues
and receives over $5000 in goods directly from outside of Loui-
siana. I find that it is an employer engaged in commerce, within
the meaning of Section 2(2), (6), and (7) of the Act. I also find,
that the International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (the Union) is a
Section 2(5) labor organization.
II. ALLEGED UNFAIR LABOR PRACTICES3
A. Introduction
Horseshoe’s casino offers blackjack, poker, roulette and other
games.4 Dealers and dual rate dealers (DRDs) staff these games,
and report to floor supervisors.5 The casino is a 24-hour opera-
tion, with day (11 a.m. to 7 p.m.), swing (7 p.m. to 3 a.m.) and
graveyard (3 to 11 a.m.) shifts.6 The pencil creates the
“roadmap” of dealer and DRD gaming assignments.7 See, e.g.,
(GC Exh. 26). DRDs often act as both dealers and leads during
5 In 2018, Horseshoe employed 185 dealers, 42 DRDs, and 43 floor
supervisors.
6 A typical day shift has 80 FT and 10 PT dealers, 10 DRDs, 10 floor
supervisors, a pencil, and an assistant manager.
7 Dealers may, for example, operate a craps table for 20 minutes, then
transfer to roulette, and then blackjack, etc.
HORSESHOE BOSSIER CITY HOTEL & CASINO 7
their shifts.8 DRDs earn $7.67 per hour plus tips as dealers,9 and
$23 per hour as leads.10 FT DRDs and dealers receive the same
vacation, insurance, pension and other benefits; they both wear
uniforms. Floor supervisors, i.e., their direct superiors, wear
business attire.
B. Union’s Organizing Drive
In late-2017, DRD Murduca contacted Union Organizer
Derek Hernandez about unionizing. In January 2018,11 they
started an organizing committee, which included Murduca and
other dealers.12 VP of Human Resources Ashley Wade credibly
stated that Horseshoe first learned about the drive on February
27, when leaflets were passed out in the garage.13
C. Supervisory Authority of DRDs
A central issue involves whether DRD Murduca is a supervi-
sor. Horseshoe avers that she is, and her firing was not covered
by the Act. The GC contends otherwise.
1. Background
Director of Operations Roger Dodds compared dealers and
DRDs in this way:
[A] dealer has one game. . . . They take care of . . . customers
. . . in front of them. . . . A . . . [DRD] has multiple games . . .
[and] up to . . . 10 employees that they’re responsible for.
They're responsible for their interactions with customers as
well as their performance. They're . . . responsible for tracking
cash transactions. . . .
(Tr. 994–995.) The DRD job description describes DRDs as “su-
pervisors,” who, “[r]ecommend . . . hiring, promotion, demotion
and termination . . . [and] wage . . . changes. . . .” (R. Exh. 1.)
In practice, however, while these tasks sound quite supervisory,
reality is less convincing.
2. Hiring, transferring, promoting, and rewarding
In practice, DRDs do not hire, transfer, promote or reward
8 DRDs spend about 40% of their time dealing and 60% as a lead.
(Tr. 1011.)
9 Tips can raise a dealer’s wage to $30 per hour. (Tr. 492.) FT Deal-
ers typically earn more than DRDs.
10 DRDs spend varying periods dealing and sometimes deal for 3 or 4
consecutive days. (Tr. 305–307.)
11 All dates that follow occurred in 2018, unless otherwise stated.
12 Patton, a coworker, credibly stated Murduca was known as a union
leader. (Tr. 474.)
13 I find that Wade, in her role as chief HR officer, promptly informed
management about the drive.
14 DRD Patton noted that, while he has previously referred employees
to management to be considered for open dealer jobs, he is not part of
the interviewing or decision-making process. (Tr. 464–465.) He de-
scribed his referrals as an exercise that can be performed by any incum-
bent, regardless of stature.
15 Dodds admitted that Floor Supervisors prepare dealer and DRD per-
formance evaluations. (Tr. 1226.)
16 Murduca has never been called into a meeting where management
was issuing discipline to a dealer (Tr. 311), and DRD Sumbler similarly
denied participating in any disciplinary interviews or investigations.
17 All workers, whether subordinate or superior, however, can initiate
incident reports on coworkers, which may lead to discipline. (Tr. 1304;
R. Exhs. 33, 34, 35, 36, 39.)
dealers. Dealer Lisa Rios, DRD Roger Patton, DRD Tawana
Sumbler and DRD Murduca all credibly stated that DRDs do not
hire,14 interview, extend job offers, evaluate,15 demote, reward,
recommend raises for, or transfer dealers. This testimony was
consistent and generally unrebutted.
3. Disciplining, demoting, suspending, and discharging
DRDs do not discipline dealers. Dealer Rios denied ever wit-
nessing a DRD issuing discipline. DRDs Murduca, Patton and
Sumbler denied being empowered to issue discipline.16 Dodds
settled this issue, when he admitted that DRDs cannot discipline
dealers.17 (Tr. 1227.)
4. Layoff and recall
DRDs cannot layoff or recall dealers. The record on this point
was undisputed.
5. Weekly and daily assignments
DRDs do not set weekly or daily dealer assignments. Central
Scheduler Stephanie Lambert sets weekly schedules, and Pencil
Monica Antwine sets daily gaming assignments.18
6. Directing dealers
DRDs are subject to highly-detailed rules, policies and regu-
lations, which define “comps,”19 rewards credits,20 game play,21
and payouts.22 See also (GC Exh. 28). Dealer Burge stated that
DRDs guide dealers by: signing off on large payouts; periodi-
cally addressing game play issues; or resolving gambling dis-
putes in accordance with these detailed rules.23 DRDs, thus, is-
sue dealers directives in accordance with these detailed rules,
policies and software applications and exercise little, if any, gen-
uine discretion concerning such directives.24 Dealer Rios credi-
bly and adamantly testified that her work is directed by the floor
supervisors, pencils, assistant floor managers and shift Manag-
ers.25 She denied being supervised by DRDs, whom she labels
as her peers. DRDs Murduca, Patton, and Sumbler corroborated
her position.
18 DRDs cannot reassign dealers between games. DRD Patton said
that he’s never told a Pencil to bar or remove a dealer from a game (i.e.,
only a pencil or shift manager can do that). (Tr. 472.) When a dealer
seeks a restroom break, a DRD is cannot grant this request, which re-
quires the pencil’s approval. DRD Sumbler said that her requests to not
work alongside given dealers are afforded little deference and seldom
granted. (Tr. 516–517.)
19 “Comps” (i.e., complimentary meals) are based on a gamer’s
“comp” value, which is defined by an algorithm that assesses betting and
play time. DRDs often consult with the pencil or shift manager for comp
guidance.
20 The gaming pit computer determines reward credits.
21 DRDs are subject to comprehensive gaming rules. See, e.g. (R. Exh.
24 (blackjack); 25 (craps); 26 (roulette); 27 (currency); 28 (anti-launder-
ing); 30 (inventory); 31 (markers)).
22 DRD Patton stated that he refers issues involving dealer payouts to
the pencil. (Tr. 472.)
23 A DRD might summon surveillance to address a gaming issue.
24 DRDs may, for instance, apply these comprehensive rules to: direct
dealers to spread cards further apart for surveillance; correct a dealer’s
payout; address a dealer error; or promote better dealer customer service.
25 I credit this testimony for multiple reasons. First, Rios was a relia-
ble and cooperative witness with a stellar demeanor. Second, she was
consistent with Murduca, Patton, and Sumbler, who were also reliable,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
D. The Section 8(a)(1) Allegations
1. February 27—Garage leafletting26
Horseshoe maintains this no-solicitation rule:
Solicitation or distribution of any literature at any time . . . by
people who are not Team Members . . . is prohibited on Com-
pany premises. Team Members will not solicit or distribute any
literature on Company premises during their working time or
the working time of the Team Member(s) to whom the solici-
tation is directed. Team Members will not distribute literature
of any description at any time in working areas or during the
working time of the Team Member who is doing the distrib-
uting or the working time of the Team Member(s) to whom the
distribution is directed. . . . [“W]orking time” includes all time
for which a Team Member is paid and/or is scheduled to be
performing services for the Company; it does not include break
periods, meal periods or other specified periods where Team
Members are not performing or are not scheduled to be per-
forming their duties. . . .
(R. Exh. 2.) Horseshoe also has an off-duty access policy,
which states that “visits are permitted as long as you are not
in uniform.” (R. Exh. 2.)
a. GC’s case
Union Organizer Hernandez testified that, on February 27, he
and several off-duty employees, including Rios and Castillo,
leafleted for the Union in the garage. (GC Exhs. 2, 4–5.) He
said that there were no employees working in the garage, where
customers and employees park their cars.27 He said that Director
of Security Rob Brown and Senior VP Mike Rich told him that
“we were trespassing . . . [and] had to move out to the street.”
(Tr. 45–48.) He replied that although he was a nonemployee and
would move, Rios and Castillo were employees who could leaf-
let in a non-work area during their nonwork hours. He recalled
Rich insisting that leafletting was, nevertheless, prohibited. (Tr.
47.) Rios and Castillo corroborated him. (Tr. 113, 688–689.)
b. Horseshoe’s reply
Wade testified that employees could “gather together and dis-
cuss union activities, as long as they were doing so in break ar-
eas.” (Tr. 776.) Neither Brown nor Rich testified.
c. Credibility resolution
Hernandez, Rios and Castillo are credited. They were believ-
able and consistent witnesses with strong demeanors. An ad-
verse inference has also been drawn from Horseshoe’s unex-
plained failure to rebut their testimonies with Brown and Rich.
Douglas Aircraft Co., 308 NLRB 1217, 1217 fn. 1 (1992) (fail-
ure to call a witness “who may reasonably be assumed to be fa-
vorably disposed to the party, [supports] an adverse inference . . .
regarding any factual question on which the witness is likely to
consistent and credible. Finally, this testimony is consistent with the
many exhibits herein showing that supervision of dealers is exercised by
the tier of supervisors directly above the DRDs (i.e., floor supervisors,
pencils, and higher), and that the limited directives that DRDs issue to
dealers are regurgitations of Horseshoe’s comprehensive gaming, payout
have knowledge”). “(quoting International Automated Ma-
chines, 285 NLRB 1122, 1123 (1987).)”
2. February 28—Meeting with Dodds28
b. GC’s case
Murduca recalled this morning discussion with Dodds on the
employee ramp:
I said . . . none of this [i.e., the Union campaign] has anything
to do with you. . . .
[H]e asked me who is . . . involved in the Union. And I said I
am one of four on day shift. And he said, are those [other 3]
people here now [?] And I looked around and I said, yes. . . .
[He then said] can you tell me who they are? [And I replied]
Renee Rios, Angela Daly, Nicky Castillo and myself. . . .
And then he said . . . what about on swing shift [? . . . [He
then asked] . . . who on [the] graveyard [?] And I said, Roger
Patton. . . .
Then . . . Dodds asked me if we would be willing to talk to
Mike Rich [?] I told [him] . . . I . . . would . . . talk to the other
. . . girls. . . .
(Tr. 226–228.)
Rios stated that she, Murduca, Castillo, and Daly met later that
day with Dodds and had this discussion:
[W]e said [to] Roger, [that the Union] . . . is nothing against
you. . . . We don't . . . want to get you in trouble . . . but . . .
we’re . . . tired of everything being taken. . . . And he asked
us . . . what has been taken away?
And I said . . . we used to get a turkey and a ham at Christmas
and Thanksgiving. . . . I said, we used to get our annual PTOs
[and] every year we’d get our vacation time. . . . I said . . . our
insurance . . . was a . . . lot better. . . .
[H]e said, but what do you really want? . . .
I said . . . our PTO time back . . . [and] our insurance to be bet-
ter. . . . [H]e . . . [was] writing everything down. . . . The other
dealers were saying what they wanted, but I don't recall . . . all
they said. . . .
He asked us if we would be willing to talk to Mike Rich, and I
told him, no. I said that Mike Rich was part of the reason why
we're in here trying to get stuff back. And he said that he would
talk to Mike Rich.
(Tr. 120 122.) Murduca and Castillo corroborated Rios’ ac-
count. (Tr. 226–230, 691–697.)
b. Horseshoe’s reply
Dodds recalled meeting them, but generally denied interrogat-
ing or soliciting grievances.
and reporting rules, which does not involve more than a de minimis level
of independent judgment.
26 These allegations appear in complaint ¶¶ 7 and 8.
27 Manager Jason Williams indicated that the garage is not a working
area. (Tr. 181.)
28 These allegations appear in ¶10(a) and (b) of the complaint.
-
HORSESHOE BOSSIER CITY HOTEL & CASINO 9
c. Credibility resolution
I credit Murduca, Castillo and Rios. They were credible wit-
nesses with strong demeanors. Dodds offered a general denial
and very little detail. He was also repeatedly led during his direct
examination, which deeply undercut his credibility. See, e.g.,
(Tr. 1158–1162.)
3. March 1—Meeting with Rich29
a. GC’s case
Rios recalled Rich holding a meeting for dealers; she de-
scribed this exchange:
Rich had said that he had called the . . . meeting because . . .
the UAW was . . . trying to organize. . . . [He described] the
pros and the cons of the Union. And he told us that if we voted
for the Union, that we could not come to management and ask
for time off . . . [and] that we would have to go through a union
rep. . . .
(Tr. 126.) Burge recalled Rich stating that, “if the Union gets in,
there will be no more open-door policy.” (Tr. 578.) Simmons
corroborated their accounts. (Tr. 642.)
b. Horseshoe’s reply
Wade said that Rich did not make these comments. (Tr. 781.)
Rich did not appear.
c. Credibility resolution
I credit Rios, Burge and Simmons. They were credible and
consistent witnesses, who corroborated each other. Although
Wade was a generally sound witness, her recollection of the
meeting itself was spotty and generalized. In addition, Rich’s
unexplained failure to testify about this key meeting enhanced
the credibility of the GC’s witnesses. Douglas Aircraft Co., su-
pra.
4. March 2—Rich meeting30
a. GC’s case
Murduca recalled Rich holding a meeting for 20 employees;
she recalled him stating that:
[I]n the past you have been able to go to Roger [Dodds] for a
last minute day off. . . . [Y]ou won’t be able to do that anymore
if the Union comes in. . . .
[DRDs cannot] vote for the Union, because . . . [they] ar. . . su-
pervisors. . . .
(Tr. 232–233.) Sumbler corroborated her account. (Tr. 500–
504.)
b. Horseshoe’s reply
Wade, who attended the meeting, denied hearing these com-
ments. Rich did not testify.
29 This allegation appears in ¶11(b) of the complaint.
30 This allegation appears in ¶11(c) and (d) of the complaint.
c. Credibility resolution
I credit Murduca and Sumbler; they were credible and con-
sistent. Although Wade was a generally sound witness, her rec-
ollection was generalized. Rich’s failure to testify, as noted, sup-
ports an adverse inference. Douglas Aircraft Co., supra.
5. Mid–March—Meetings with Dodds31
a. GC’s case
Murduca recalled this discussion at a mid-March employee
meeting:
[Dodds] said that. . . . [DRDs] would have an opportunity to
bid on full time dealing positions based on seniority and then
skill set. . . .
He wrote his cell . . . number on the dry erase board. And told
the group that if they have any questions or concerns, . . . call
him at any time. . . .
(Tr. 220.) Patton similarly recalled Dodds stating that:
[S]ome full-time dealer positions [were] opening up. . . .
Give . . . [Horseshoe] a chance . . . [and] they could maybe
make it right. . . .
(Tr. 453.) Murduca, Sumbler and Rios corroborated this testi-
mony. (Tr. 108–109, 217–218, 491.)
Simmons noted that Dodds made these comments at another
mid-March meeting:
[Dodds] said that we would have to pay union dues and that the
. . . Union [was] formed [by] . . . an employee . . . [who] met
this guy at a bar. . . . He told us . . . that he knew that we only
needed 46 more votes to get it passed. And that they really
didn't want the Union.
He said that the dual rates . . . weren’t going to be able to . . .
join the Union because they would be considered as full-time
floor [supervisors]. . . .
[H]e . . . asked us what . . . they could do to . . . make things
better. . . .
He did say that they were going to open up full-time positions
if . . . dual rates wanted to become full-time dealers. . . .
I remember him giving us his card. He said that we could talk
to him at any time. . . . [W]e weren’t able to do this before. . . .
He said that . . . improvements . . . had to put them on hold at
the time because of the Union. He said . . . there was a lot that
they wanted to do for us. . . .
(Tr. 648–653.)
b. Horseshoe’s reply
Dodds denied telling DRDs that they could bid on FT dealer
slots. He recalled telling them to educate themselves about the
Union. Regarding threats, he said that:
This thing caught us totally off guard. [I received] . . . TIPS
31 At the hearing, the GC amended ¶12 of the complaint to allege that
these statements were also made in mid-January 2018. (Tr. 13.) These
allegations appear in ¶12(a) through (d) of the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
[training and knew that] . . . I can't threaten, . . . promise, . . .
spy . . . [or] interrogate. . . .
(Tr. 1157.) He denied offering to make things better or saying
that DRDs could not unionize. Wade related that Horseshoe has
a practice of conducting EOS surveys, evaluating suggestions,
and implementing some ideas. (R. Exhs. 14–20, 22.) She con-
tended, as a result, that any discussion of improvements stemmed
from the EOS program.
c. Credibility resolution
For the reasons previously stated, I credit the GC’s witnesses,
who each possessed strong demeanors, and were consistent and
cooperative. As noted, Dodds was a poor witness, who was re-
peatedly led by his own counsel, which eviscerated his credibil-
ity. See, e.g. (Tr. 1158–1162.)
6. March 17—Meeting with Dodds32
Burge testified that she and four dealers met with Dodds; she
recalled this exchange:
He said, I know you all have heard that there is a committee
that has formed, wanting the Union in. . . .
He said . . . imagine going . . . to the bargaining table . . . [and]
possibly losing 30 percent of your PTOs. . . .
He stated . . . that if the Union got in, we would no longer have
an open-door policy. . . .
(Tr. 583–585.) Dodds denied these comments. As previously
cited, I credit Burge over Dodds.
7. March 24—Dodds’ comments on DRD bidding on FT
dealer jobs33
On March 23, Horseshoe posted several FT dealer jobs. (GC
Exh. 10). Murduca said that, on March 24, she had this discus-
sion with Dodds:
I approached Roger and . . . said I see the notice up for full time
dealer position openings. Can I bid on it now? And he said no,
because we don’t know where we stand with the classification
of dual rights.
(Tr. 242.) Sumbler noted that no DRDs were given FT dealer
jobs. For the reasons previously discussed, I credit Murduca and
Sumbler over Dodds.
8. March 24—Directions to workers to remove union buttons34
Horseshoe maintains this rule:
Name Badges/Tags: Name badges must be worn . . . while on
duty . . . [and] must be clearly visible and unaltered; nothing
may be attached to . . . name badge/tags or badge holders un-
less authorized by the Company or allowed by law.
(R. Exh. 2).
32 These allegations appear in ¶13(a) and (b) of the complaint.
33 This allegation appears in ¶14 of the complaint.
34 This allegation appears in ¶9 of the complaint. The underlying facts
that follow are essentially undisputed.
35 This allegation appears in ¶15(b) of the complaint. The underlying
facts are essentially undisputed.
Rios credibly testified that, on March 24, she met with Dodds,
LaFleur and Antwine. She recalled that:
Dodds told [her] . . . to take off . . . [the] UAW pin [off her
name badge], because it was not part of . . . [the] uniform and
. . . he could not let somebody . . . against the Union wear a
button either.
(Tr. 137.) She said that she was still allowed to leave her flag
pin on her name badge until April 15. (Tr. 137.) She added that
others were observed wearing nonunion pins on their badges dur-
ing this period. See, e.g., (GC Exhs. 11–12.) Sumbler and Cas-
tillo corroborated her account. (Tr. 507–508, 706–707.)
Wade explained that the name badge should be unobstructed
for game protection and surveillance purposes. (Tr. 852.) She
added that wearing a pin on your badge detracts from the overall
uniform. (Tr. 855–856.) LaFleur conceded that he asked Rios
to remove the flag pin from her badge. (Tr. 1447–1448.) He
said that he has made similar requests to other workers. (Id.) For
the same reasons previously stated, I credit Rios on these points.
E. The Section 8(a)(3) Allegations
1. March 3 to April 28—Saturday work35
Burge, Butler, Lewis and others stated that they observed an
increase in assignments on their scheduled Saturdays off, which
coincided with the Union’s drive. There was no evidence pre-
sented, however, regarding their Union activities.
Director of Administration Aaron Bronson testified that there
is a bias-free centralized scheduling process, which flows from
workload demands. He demonstrated that tables games volume
declined from 2014 through mid-2017 and increased sharply and
unexpectedly thereafter. (Tr. 939; R. Exh. 78.) He credibly said
that this unanticipated change increased labor demands, which
drove the need to assign workers on their Saturdays off.36 See
(R Exh. 70.)
2. March 23 and 24–Bidding on FT dealer slots37
On March 23, Horseshoe posted several FT dealer jobs. (GC
Exh. 10.) Although PT dealers were allowed to bid on these
slots, DRDs were not. Dodds explained that he needed to keep
DRDs in their current roles for business and logistical purposes.
3. April 7—Murduca’s firing38
DRD Murduca worked for Horseshoe from 2001 until her fir-
ing. At this time, she had a final written warning on the pol-
icy/performance disciplinary ladder.
(a) Horseshoe’s disciplinary system—Generally
Horseshoe has 3 disciplinary ladders: policy/performance; at-
tendance; and variance (i.e., monetary errors). Wade succinctly
described the disciplinary system in the following manner:
[It] is a step policy. . . [with] various ladders. The most com-
mon . . . [ladder] would be policy [and] . . . performance. It
36 Saturday is, as would be expected, a high-volume day at the casino.
37 These allegations are in ¶15(c) and (d) of the complaint. The under-
lying facts are generally undisputed.
38 This allegation is in ¶15(e) of the complaint.
HORSESHOE BOSSIER CITY HOTEL & CASINO 11
starts with a documented coaching. If within a 12-month pe-
riod of . . . the original infraction, . . . you have another issue
on the policy and performance ladder, then you receive . . . a
written warning. If within 12 months of the infraction date you
have another issue, you’ll receive a final written warning . . . .
[T]he next . . . step is termination. . . .
(Tr. 863–864.) Discipline can be appealed to the Board of Re-
view (the Board), which may reduce the penalty.39 (Tr. 872.)
Discipline drops from a ladder after a year, without added infrac-
tions.
b. Murduca’s disciplinary history
This chart describes her disciplinary history on the policy/per-
formance ladder:
Date Incident Disciplinary Ac-
tion
Dec.
23,
2015
Failing to park in the
designated area.
Documented
coaching
Aug.
16,
2016
Missing 2 rolls of the
dice.
Written warning
Apr.
18,
2017
Rude to a coworker. Final written
warning
Apr. 7,
2018
Discussing spells on the
casino floor.
Termination
(GC Exh. 19; R. Exhs. 82, 83, 102).
c. Chronology of events Leading to Murduca’s Separation
I. APRIL 2
Murduca stated that she had this exchange with Dealer Vicki
Strickland in the craps pit:
I asked her . . . are you from south Louisiana? And she said
yes. I said, do you believe in spells? And she said, give me a
piece of your hair.
So [supervisor] Tammy [Pierce] . . . was standing there, and I
asked her if I was shedding [and] . . . can she get a piece of my
hair from my back, and she said, you're not shedding. So I
pulled a piece of hair out of my head, and I gave it to Vicki.
And Vicki put it in her left sweater pocket. And . . . [Pierce]
looked at us puzzled, and I said, Vicky’s going to help me win
the Powerball with that piece of hair. And Tammy and I both
laughed.
Then Vicki turned around and she said, something bad is going
to happen to you.
(Tr. 246–247.)
39 The Board’s 3-member panel has a department employee, manage-
ment delegate and HR representative.
40 Sumbler stated that religious jokes are commonplace at the casino.
(Tr. 509.) She stated that management is aware of such jokes and has
participated in making such jokes. (Tr. 510.)
41 Williams said that he tried to take a statement from Murduca about
the incident, but, she was uncooperative.
II. APRIL 3
Murduca recalled Strickland approaching her in the break area
and asking, “[did] anything bad happen?” When she said, “no,”
Strickland said that “it’s coming.” (Tr. 248.)
III. APRIL 4
Murduca had this exchange with Manager Williams:
Jason asked me if I would write [down] . . . what happened . . .
with the hair incident. . . . I didn’t want to write one, because I
didn't want her to get in trouble. . . .
(Tr. 253.)
IV. APRIL 7
Murduca met with LaFleur, Antwine and Williams; this dis-
cussion ensued:
Williams. . . said . . . I have to read . . . your termination paper
[to you]. . . .
And as he read it, he used the word voodoo in my conduct
standard explanation, and I interrupted . . . [and] said . . . I never
used the word voodoo. He paid no attention . . . and just con-
tinued. . . .
(Tr. 256–258.) She said that she was then escorted away. Mur-
duca denied offending Strickland, insisted that they were friends,
and contended that she solely said “spells” (i.e., not “voo
doo”).40 (Tr. 259–260.)
d. Investigation and decision
Manager Williams testified that his investigation produced
statements from Antwine and Strickland.41 He recounted that:
[Murduca] asked . . . [Strickland] if she knew anything about
voodoo and spells, and Judy had mentioned that she had a
friend . . . under a spell. . . .
(Tr. 1311–1312.) He added that Strickland asked Murduca for a
strand of hair. (Tr. 1314.)
Williams stated that, because their childish conversation oc-
curred in front of guests, it violated disciplinary standards,42
which led to Murduca and Strickland being disciplined on the
policy/performance ladder. He added that he watched video
footage and observed guests in the vicinity, while Murduca and
Strickland joked around. He said that that Strickland received a
documented coaching because she had no other discipline on her
ladder,43 and Murduca was fired because she had a pending final
warning on her ladder. Employee Relations Supervisor Darlene
Overton testified that she consulted with Williams regarding the
discipline and found that it was consistent with casino policies.
She noted Murduca appealed to the Board of Review,44 which
upheld her firing. (R. Exhs. 90, 102, 125, 126, 127, 128.)
42 Horseshoe’s anti-harassment policy prohibits harassment on the ba-
sis of race and religion, and bars derogatory comments and slurs. (R.
Exh. 86.)
43 Strickland received a documented coaching dated April 10, 2018,
in the policy/performance ladder. (R. Exh. 88.)
44 The Board of Review is comprised of an HR representative, outside
manager, and employee. (R. Exh. 102.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
e. Disparate treatment evidence
In some situations, Horseshoe exercises great leniency and be-
nevolently issues non-disciplinary informational entries, when
workplace rules are violated. See, e.g. (R. Exh. 129.) There is
no evidence that Horseshoe considered this track in Murduca’s
case. There is similarly no evidence that Horseshoe issued any
discipline to Supervisor Pierce, who observed the incident in real
time, reportedly laughed, and failed to intervene and/or immedi-
ately report it to upper management for disciplinary purposes.
III. ANALYSIS
A. The Section 8(a)(1) Allegations45
1. Horseshoe unlawfully banned the garage leafletting46
Horseshoe, by Rich and Brown, unlawfully banned employees
from leafletting in the garage on February 27. Employees can
discuss unions and solicit support for unions on non-working
time, unless the employer can show that it needs to limit the ex-
ercise of that right in order to maintain production or disci-
pline. See Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803
(1945); Gayfers Department Store, 324 NLRB 1246 (1997). An
employer may forbid employees from talking about a union dur-
ing working time, if that prohibition also covers other subjects
not associated with one’s work duties. Sam’s Club, 349 NLRB
1007 (2007). Retail employers may also bar solicitation on the
selling floor, even during employees’ non-working time because
such solicitation may disrupt the retailer’s business. J. C. Penny
Co., 266 NLRB 1223 (1983). The Board, however, has not al-
lowed these solicitation bans to be extended to non-selling areas
of the store. Gallup, Inc., 349 NLRB 1213 (2007).
In the instant case, Horseshoe’s employees peacefully solic-
ited for the Union during non-working hours in a non-working
area. Horseshoe made no showing that its restriction was re-
quired to maintain discipline or that the leafletting hindered its
operations. Horseshoe’s interference, accordingly, violated the
Act.
2. Horseshoe violated the Act when it interrogated Murduca47
Horseshoe, by Dodds, unlawfully interrogated Murduca on
February 28. In Westwood Healthcare Center, 330 NLRB 935
(2000), the Board applied these factors to define an unlawful in-
terrogation:
(1) The background, i.e. is there a history of employer hostility
and discrimination?
(2) The nature of the information sought, e.g., did the interro-
gator appear to be seeking information on which to base taking
action against individual employees?
(3) The identity of the questioner, i.e. how high was he in the
company hierarchy?
(4) Place and method of interrogation, e.g. was employee
called from work to the boss’s office? Was there an atmosphere
45 The GC, in some cases, has alleged cumulative 8(a)(1) violations of
the same strain (e.g., solicitations). In such cases, where merit was
found, and the remedy was unaltered by finding cumulative violations,
only a few illustrative examples were analyzed. See, e.g., Smithfield
Foods, Inc., 347 NLRB 1225, 1228–1229 (2006), enfd. 506 F.3d 1078
(D. C. Cir. 2007).
of unnatural formality?
(5) Truthfulness of the reply.
Id. at 939. In applying these factors, however, the Board con-
cluded that:
In the final analysis, our task is to determine whether under all
the circumstances the questioning at issue would reasonably
tend to coerce the employee at whom it is directed so that he or
she would feel restrained from exercising rights protected by
Section 7 of the Act.
Id. at 940.
Dodds’ exchange with Murduca was an unlawful interroga-
tion. The questioning involved protected activities, i.e., who are
the Union’s supporters. It could have reasonably led Murduca
to conclude that Dodds, a high-level manager, wanted to retaliate
against the Union’s supporters. Under these circumstances,
Dodds’ query was coercive and unlawful.
3. Horseshoe unlawfully solicited grievances48
Horseshoe, by Dodds, unlawfully solicited grievances from
Murduca and others at the February 28 and mid-March meetings.
Solicitation of grievances during a union campaign is unlawful
when it “carries with it an implicit or explicit promise to remedy
the grievances and ‘impress[es] upon employees that union rep-
resentation [is] . . . [un]necessary.”’ Albertson’s, LLC, 359
NLRB 1341, 1341 (2013) (internal quotations omitted), affd. 361
NLRB 761 (2014). The Board has explained that:
Absent a previous practice . . . solicitation of grievances during
an organizational campaign accompanied by a promise, ex-
pressed or implied, to remedy such grievances violates the Act.
. . . [Such] solicitation . . . inherently constitutes an implied
promise to remedy the grievances. Furthermore, the fact [that]
an employer’s representative does not make a commitment to
specifically take corrective action does not abrogate the antici-
pation of improved conditions expectable for the employees in-
volved. [T]he inference that an employer is going to remedy
the same when it solicits grievances in a pre-election setting is
a rebuttable one.
Maple Grove Health Care Center, 330 NLRB 775, 775 (2000)
(quoting Capitol EMI Music, 311 NLRB 997, 1007 (1993). “An
employer may rebut the inference of an implied promise by . . .
establishing that it had a past practice of soliciting grievances in
a like manner prior to the critical period, or by clearly establish-
ing that the statements . . . were not promises.” Mandalay Bay
Resort & Casino, 355 NLRB 529, 529 (2010).
Dodds’ comments were unlawful. On February 28, Dodds
asked Murduca, Rios and other employees, “what [things Horse-
shoe has] . . . taken away?”, “what things do you really want?”,
and “if we would be willing to talk to Mike Rich?” At various
mid-March employee meetings, Dodds stated, “that if they have
any questions or concerns, . . . call him at any time,” “[g]ive . . .
46 These allegations are listed under ¶¶ 7, 8 and 16 of the complaint.
47 These allegations are listed under ¶¶ 10(a) and 16 of the complaint.
48 These allegations are listed under ¶¶ 10(b), 12(c) and 16 of the com-
plaint. No finding has been made regarding whether Dodds made similar
unlawful statements in January because such a finding would not alter
the remedy herein. Smithfield Foods, Inc., supra.
HORSESHOE BOSSIER CITY HOTEL & CASINO 13
[Horseshoe] a chance . . . [and] they could maybe make it right
. . .”, “what . . . they could do to . . . make things better . . . ”,
and “there was a lot that they wanted to do for us. . . .” A reason-
able employee would have interpreted this collection of com-
ments to be an implied promise to remedy their grievances in lieu
of unionization. It is also noteworthy that Horseshoe made no
showing that it had an established past practice of previously so-
liciting grievances in a comparable manner.49 This solicitation,
therefore, violated Section 8(a)(1). See, e.g., Mandalay Bay Re-
sort & Casino, supra, 355 NLRB at 530.
4. Horseshoe unlawfully threatened lost benefits50
Horseshoe, by Rich and Dodds, unlawfully threatened that
employees would lose a variety of benefits, if they unionized.
On February 28, Dodds threatened that they would no longer be
permitted to ask for a last-minute day off. On March 1, Rich
threatened that the open-door policy would be lost. On March 2,
Rich threatened that they would no longer be permitted to ask for
a last-minute day off. On March 17 Dodds told them to “imagine
going . . . to the bargaining table . . . [and] possibly losing 30
percent of your PTOs.” Threatening lost benefits because of un-
ion activities is prohibited. Wellstream Corp., 313 NLRB 698,
707 (1994).
5. Horseshoe unlawfully told DRDs that they are supervisory
and cannot vote51
Horseshoe, by Rich and Dodds, unlawfully told DRDs in
March that they were supervisors to discourage their union ac-
tivities. On March 2, Rich stated that DRDs could not vote for
the Union because they are supervisors. In mid-March, Dodds
made similar comments. Given that DRDs are not supervisors,
as will be discussed, these comments unlawfully chilled their
Section 7 activities. Shelby Memorial Home, 305 NLRB 910 fn.
2 (1991), enfd. 1 F.3d 550 (7th Cir. (“employer acts at its peril
when it takes steps calculated to chill the exercise of Sec. 7 rights
by individuals who may later be found to be under the protection
of the Act.”).52
6. Horseshoe unlawfully promised DRDs the right to bid on FT
dealer slots53
Horseshoe, by Dodds, unlawfully promised to reward DRDs
in mid-March by promising to allow them to bid on more lucra-
tive FT dealer jobs, if they did not support the Union. Dodds
49 Although Horseshoe demonstrated that it conducts annual opinion
surveys, it failed to show that upper level managers previously conducted
captive audience meetings of this nature, personally pleaded for a chance
to address things causing disaffection, invited employees to meet with
Rich, handed out personal phone numbers and solicited them to call at
any time. Such pleas went widely astray of Horseshoe’s EOS practice,
and fell short of showing that the statements at issue were not promises.
Mandalay Bay Resort & Casino, supra.
50 These allegations are listed under ¶¶ 11(b) and (c) , 13(a) and 16 of
the complaint.
51 These allegations are listed under ¶¶ 11(a) and (d), 12(d), and 16 of
the complaint.
52 See also Hospital Motor Inn, Inc., 249 NLRB 1036, 1036–1037
(1989), enfd. 667 F.2d 562 (6th Cir. 1982), cert. denied 459 U.S. 969
(1982) (employer violates §8(a)(1) and (3) by promoting employees to
supervisory positions, and thus stripping them of their right to self-or-
ganization, because of a union campaign); AMFM of Summers County,
told DRDs that they would have “an opportunity to bid on full
time dealing positions based on seniority and . . . skill set,” and
“they were going to open up full-time positions if . . . dual rates
wanted to become full-time dealers.” These comments occurred
at the commencement of the Union’s drive, attempted to address
some of the dissatisfaction giving rise to the drive, and occurred
alongside several other unlawful threats and comments. I find,
as a result that such promises were made to discourage unioni-
zation and were unlawful. Curwood, Inc., 339 NLRB 1137,
1147 (2003) (employer violates the Act, when it promises to re-
ward employees, in order to curtail unionization), enfd. in rele-
vant part 397 F.3d 548 (7th Cir. 2005); NLRB v. Exchange Parts
Co., 375 U.S. 405, 409 (1964). The message behind these state-
ments was that, if DRDs wanted to bid on FT dealer jobs, they
should not unionize.54
7. Horseshoe created an unlawful impression of surveillance55
Horseshoe, by Dodds, unlawfully created the impression that
employees’ Union activities were under surveillance. An em-
ployer creates an unlawful impression of surveillance when, un-
der all of the circumstances, reasonable employees would as-
sume from a statement that their protected activities are being
watched by management. Stevens Creek Chrysler Jeep Dodge,
353 NLRB 1294, 1295–1296 (2009). As a result, when an em-
ployer tells employees that it is aware of their union activities,
but, fails to tell them the source of that information, Section
8(a)(1) is violated because employees are left to speculate as to
how their employer obtained the information, which could cause
them to reasonably conclude that it was obtained via monitor-
ing. Conley Trucking, 349 NLRB 308, 315 (2007), enfd. 520
F.3d 629 (6th Cir. 2008). In the instant case, Dodds told employ-
ees, at a mid-March meeting, that “the . . . Union [was] formed
[by] . . . an employee . . . [who] met this guy at a bar . . . [and]
he knew that we only needed 46 more votes to get it passed.”
This commentary created an unlawful impression of surveil-
lance, inasmuch as it conveyed that Horseshoe knew detailed in-
formation about the campaign, without revealing its source.
These comments, accordingly, left employees with the reasona-
ble impression that management was monitoring their union ac-
tivities.
8. Horseshoe unlawfully blamed the Union for lost
Inc., 315 NLRB 727 (1994), enfd. 89 F.3d 829 (4th Cir. 1996) (an em-
ployer violates the Act by accelerating a promotion or other employment
action affecting employee status, in response to union activity); Matson
Terminals, Inc. 321 NLRB 879, 879 (1996), enfd. 114 F.3d 300 (D.C.
Cir. 1997) (same).
53 These allegations are listed under ¶¶ 12(a), 13(b), and 16 of the
complaint. No finding has been made, however, regarding whether
Dodds made a similar unlawful comment in January. Smithfield Foods,
Inc., supra.
54 Horseshoe denied these comments and did not aver that they flowed
from the EOS. Accordingly, it failed to show that it had a legitimate
business reason for its timing. See KOFY TV-20, 332 NLRB 771, 773
(2000) (absent a showing of a legitimate business reason for the timing
of a grant of benefits during an organizing campaign, the Board will infer
an improper motive and find interference with employee rights under the
Act).
55 These allegations are listed under ¶¶ 12(b) and 16 of the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
job opportunities56
Horseshoe, by Dodds, unlawfully blamed the Union for its
failure to offer DRDs the opportunity to bid on FT dealer slots.
Following Horseshoe’s March 23 posting of several FT dealer
slots, Dodds told Murduca on March 24 that DRDs could not bid
on these jobs because “we don't know where we stand with the
classification of dual rights [i.e., whether they are supervisors for
the purpose of an NLRB election].” (Tr. 242.) Under these cir-
cumstances, Dodds blamed the Union for its inability to open
these jobs up to DRDs (i.e., had the Union not started its drive
and put DRD supervisory status into play, we would have al-
lowed DRDs to bid on these coveted jobs). The Board has found
analogous commentary to be unlawful. See, e.g., Atlantic Forest
Products, 282 NLRB 855 (1987); Truss-Span Co., 236 NLRB
50 (1978), enfd. in relevant part 606 F.2d. 266 (9th Cir. 1979).
9. Horseshoe unlawfully directed employees to remove their
union pins57
On March 24, Horseshoe, by Dodds and LaFleur, disparately
applied its “name badges/tags” rule by banning employees from
wearing Union buttons on their ID badges, while continuing to
permit others to wear nonunion buttons on their ID badges for
another month. As noted, Horseshoe maintains a “name
badges/tags rule,” which provides that “nothing may be attached
to . . . name badge/tags or badge holders unless authorized by the
Company or allowed by law.” (R. Exh. 2.) On March 24, Rios
was ordered by Dodds and LaFleur to remove her Union pin
from her ID badge. At the time, however, she was permitted to
continue to wear a flag pin on her ID badge, as were other casino
workers for an extended duration.
The Board has held as follows:
[E]mployees have a Section 7 right to wear union insignia on
their employer’s premises, which may not be infringed, absent
a showing of “special circumstances.”. . . These protections . . .
have always extended to articles of clothing, including pro-un-
ion T-shirts. There is no basis in precedent for treating clothes
displaying union insignia as categorically different from other
union insignia, such as buttons. . . .
An employer cannot avoid the “special circumstances” test
simply by requiring its employees to wear uniforms or other
designated clothing, thereby precluding the wearing of clothing
bearing union insignia. The Board has consistently applied that
test where employers have required employees to wear partic-
ular articles of clothing and have correspondingly prohibited
them from wearing clothing displaying union insignia. . . .
Stabilus, Inc., 355 NLRB 836, 838 (2010)(citations omitted).
Moreover, even if an employer’s rule is facially lawful, the dis-
parate enforcement of that rule against union or other protected
concerted activity violates the Act. See, e.g., Shelby Memorial
Home, 305 NLRB 910, 919 (1991), enfd. 1 F.3d 550, 565 (7th
Cir. 1993) (nursing home’s selective enforcement of its rule re-
stricting pins or badges against union insignia, but, not other
56 These allegations are listed under ¶¶ 14 and 16 of the complaint.
57 These allegations are listed under ¶¶ 9 and 16 of the complaint.
58 These allegations are listed under ¶¶15(b), (f) and (g), and 17 of the
complaint.
insignia was unlawful).
In the instant case, Horseshoe disparately enforced its rule re-
stricting pins and badges against Union insignia, but, not against
other insignia by ordering Rios to remove her Union pin from
her ID badge, while allowing others to continue to wear non-un-
ion pins. Such disparate enforcement violates the Act. Shelby
Memorial Home, supra.
B. The 8(a)(3) Allegations
1. Legal precedent
The framework for analyzing whether discriminatory actions
violate Section 8(a)(3) is set out in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), which requires the GC to show, by a preponderance
of the evidence, that the worker’s protected conduct was a moti-
vating factor in the adverse action. This initial burden is satisfied
by showing protected activity, employer knowledge and animus.
If the GC meets this initial burden, the burden shifts to the em-
ployer to prove that it would have taken the same adverse action,
absent the protected activity. Mesker Door, 357 NLRB 591,
591–592 (2011). The employer cannot meet its burden, how-
ever, merely by showing that it had a legitimate reason for its
action; rather, it must demonstrate that it would have taken the
same action, absent the protected conduct. Bruce Packing Co.,
357 NLRB 1084, 1086, 1087 (2011), revd. on other grounds 795
F.3d 18 (D.C. 2015). If the employer’s proffered reasons are
pretextual (i.e., either false or not actually relied on), it fails to
show that it would have taken the same action for those reasons
regardless of the protected conduct. Metropolitan Transporta-
tion Services, 351 NLRB 657, 659 (2007). On the other hand,
further analysis is required if the defense is one of “dual motiva-
tion,” that is, the employer defends that, even if an invalid reason
might have played some part in its motivation, it would have still
taken the same action for permissible reasons. Palace Sports &
Entertainment, Inc. v. NLRB, 411 F.3d 212, 223 (D.C. Cir.
2005).
2. Horseshoe lawfully assigned employees work on their
scheduled Saturdays off58
Although, between March 3 and April 28, Horseshoe assigned
Burge, Butler, Lewis, Rankin, Reno and Simmons to work on
their scheduled Saturdays off, the GC failed to show that this ac-
tion violated Section 8(a)(3). The GC failed to show that these
employees engaged in any protected activity, or that Horseshoe
was somehow aware of their alleged activity. In addition, Horse-
shoe credibly demonstrated that it had a legitimate nondiscrimi-
natory reason, i.e., the unexpected spike in business volume, for
scheduling workers on their Saturdays off.
3. Horseshoe lawfully allowed PT dealer bids on FT dealer
jobs59
Horseshoe’s decision to allow PT dealers to bid on FT dealer
slots was lawful. The GC failed to show that PT dealers as a
class engaged in any protected activity, or that Horseshoe was
59 These allegations are listed under ¶¶15(c), (f) and (g), and 17 of the
complaint.
HORSESHOE BOSSIER CITY HOTEL & CASINO 15
somehow motivated to reward them to influence their alleged §7
activities. Also, allowing part-timers to bid on full-time jobs in
the same classification is a typical, non-discriminatory, progres-
sion in most workplaces.60 On these bases, Horseshoe allowing
PT dealers to bid on FT jobs was valid.
4. Horseshoe unlawfully barred DRD bids on FT dealers jobs61
Since March 24, Horseshoe has unlawfully refused to allow
DRDs to bid on FT dealer positions. The GC satisfied its initial
burden regarding this allegation. Regarding refusal-to-consider-
for-hire allegations (i.e., Horseshoe’s discriminatory refusal to
consider DRDs for FT dealer slots), the Board has held that:
To establish a discriminatory refusal to consider, pursuant
to Wright Line, supra, the General Counsel bears the burden of
showing the following at the hearing on the merits: (1) that the
respondent excluded applicants from a hiring process; and (2)
that antiunion animus contributed to the decision not to con-
sider the applicants for employment. Once this is established,
the burden will shift to the respondent to show that it would not
have considered the applicants even in the absence of their un-
ion activity or affiliation.
FES, 331 NLRB 9, 15 (2000).
In the instant case, the GC met its burden. It demonstrated
that FT dealer positions existed, and that Horseshoe excluded
DRDs from the hiring process (i.e., management made express
comments that DRDs would not be allowed to apply for FT
dealer jobs). The GC also established that Union animus con-
tributed to Horseshoe’s decision to exclude DRDs from the hir-
ing process by proving the following examples of Union animus:
its firing of DRD Murduca; unlawful statements that DRDs were
supervisors who could not organize; unlawful promises of DRD
benefits to undermine their union support; blaming the Union for
its failure to grant DRDs FT dealer slots; and the other unlawful
statements and acts established herein. Horseshoe failed to show
that it would not have considered the DRDs for FT dealer slots,
absent union activity. On the contrary, it is undisputed that
DRDs spend a large chunk of their workday performing dealer
duties and were qualified to do these jobs. Simply put, there is
no rational business reason for excluding them from considera-
tion for these jobs.62
5. Horseshoe unlawfully fired Murduca on April 763
Murduca’s firing was unlawful. As a preliminary matter, she
was not a supervisor. Additionally, the GC met his burden and
Horseshoe failed to show that it would have taken the same ac-
tion absent her protected conduct.
a. Supervisory status
Murduca is not a statutory supervisor; Section 2(11) of the Act
defines a supervisor as:
60 Assuming that Horseshoe made its FT dealer jobs available to both
PT dealers and DRDs, it would be hard to believe that the GC would
separately challenge allowing PT employees to bid on these jobs. Hence,
the violation flows not from the grant of a PT dealer benefit, but, from
the withholding of a DRD benefit.
61 These allegations are listed under ¶¶15(d), (f) and (g), and 17 of the
complaint.
[A]ny individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or effec-
tively to recommend such action, if in connection with the fore-
going the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.
The burden is on the party asserting Section 2(11) supervisory
status to establish by a preponderance of the evidence that the
individual has the authority to perform or effectively recommend
at least one of these listed actions. NLRB v. Kentucky River Com-
munity Care, Inc., 532 U.S. 706, 710 (2001); Entergy Missis-
sippi, Inc., 367 NLRB No. 109, slip op. at 2 (2019). As will be
shown, Murduca does not use independent judgment to exercise
any of these supervisory duties.
I. HIRING, TRANSFERRING, PROMOTING, AND REWARDING
DEALERS, AND ADJUSTING GRIEVANCES
DRDs cannot hire, transfer, promote or reward dealers, or ad-
just grievances. Although DRDs may, like other non-supervi-
sors, refer candidates to management to be considered for hire,
they do not play any role in the interviewing or decision-making
processes, and it is unclear what weight, if any, is afforded to
their recommendations. DRDs do not, as a result, exercise su-
pervisory authority in this regard. DRDs similarly do not prepare
performance appraisals or evaluations for, demote, reward, grant
or recommend raises for, or transfer dealers, or adjust their griev-
ances. These duties are performed by Floor Supervisors and
higher-level managers.
II. DISCIPLINING, DEMOTING, SUSPENDING, DISCHARGING, LAYING
OFF AND RECALLING DEALERS
DRDs do not discipline, demote, suspend or discharge. Dodds
conceded that DRDs cannot issue coaching, warnings, suspen-
sions or terminations. DRDs do not attend meetings where man-
agement plans to issue dealer discipline, and do not participate
in disciplinary interviews or investigations. Although DRDs
may be summoned by management to provide witness state-
ments in disciplinary investigations or may initiate a complaint
against a coworker that could lead to discipline, all employees
(i.e., regardless of status) can play these roles. It is also undis-
puted that DRDs do not layoff or recall dealers.
III. WEEKLY AND DAILY DEALER ASSIGNMENTS
DRDs do not create weekly or daily dealer assignments. Cen-
tral Scheduler Lambert sets weekly work schedules, and Pencil
Monica Antwine sets daily assignments. DRDs cannot reassign
dealers to alternate games or remove dealers from games. DRD
requests to not assign a dealer to a game are seldom granted by
the pencil or shift manager. When a dealer requires a restroom
break, they must obtain a pencil’s consent (i.e., DRDs are not
62 There is no sound reason why Horseshoe could not have permitted
DRDs to apply for FT dealer jobs and then decided on a case-by-case
basis amongst all applicants. This would have been a practical option
for all parties.
63 These allegations are listed under ¶¶15(e), (f) and (g), and 17 of the
complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
even empowered to let dealers leave to use the bathroom).
IV. INDEPENDENT JUDGMENT TO RESPONSIBLY DIRECT DEALERS
Although DRDs may specify a gambling payout, direct deal-
ers to spread cards wider or narrower, or issue other game-play
directives, such direction does not involve “independent judg-
ment” within the meaning of Section 2(11). The Board has held
that judgment is not independent within the meaning of that pro-
vision if it is “dictated or controlled by detailed instructions,
whether set forth in company policies or rules [or] the verbal in-
structions of higher authority.” Oakwood Healthcare, Inc., 348
NLRB 686, 693 (2006). Consistent with Section 2(11), this in-
terpretation distinguishes “true supervisors who exercise ‘genu-
ine management prerogatives’ with ‘straw bosses, leadmen,
[and] set-up men,’ who are still entitled to the Act’s protections
despite the exercise of ‘minor supervisory duties[,]’ NLRB v. Bell
Aerospace Co., 416 U.S. 267, 280–281 [] (1974),” and ““faith-
fully implements the Supreme Court’s guidance” in NLRB v.
Kentucky River Community Care, 532 U.S. at 714, that “‘detailed
orders and regulations issued by the employer’ might preclude a
finding of independent judgment.” NLRB. v. Sub Acute Rehabil-
itation Center at Kearny, LLC, 675 Fed.Appx. 173, 177 (3d Cir.
2017). In the instant case, DRDs rely upon highly-detailed game
rules, policies and procedures that micromanage game play in
virtually every anticipated aspect. DRDs, do not, as a result, ex-
ercise independent judgment in their direction of dealers on
game play issues, which renders them nonsupervisory in this re-
gard.64
V. JOB DESCRIPTION
Even though the DRD job description states that DRDs “rec-
ommend . . . hiring, promotion, demotion [,] . . . termination . . .
[,] wage and salary changes for personnel,” this authority is not
exercised in practice and, hence, insufficient to establish actual
Section 2(11) supervisory authority. See Lakewood Healthcare
Center d/b/a Chi Lakewood Health, 365 NLRB No. 10, slip op.
at 1 fn. 1 (2016); Beverly Enterprises-Massachusetts, Inc. v.
NLRB, 165 F.3d 960, 962–964 (D.C. Cir. 1999).
VI. SYNTHESIS
DRDs do not exercise supervisory authority. They do not hire,
transfer, promote, reward, discipline, demote, suspend, dis-
charge, layoff or recall dealers, or adjust their grievances. They
do not create weekly and daily dealer assignments or exercise
independent judgment to responsibly direct.
64 It is also noteworthy that there is no evidence that DRDs suffer
concrete consequences, if they fail to appropriately direct dealers; this
circumstance further detracts from any conclusion of supervisory status.
See Oakwood Healthcare, 348 NLRB at 691–692; Golden Crest
Healthcare Center, 348 NLRB 727, 731 and fn. 13 (2006); UPS Ground
Freight, Inc. v. NLRB, 921 F.3d 251, 255 (D.C. Cir. 2019).
65 Following the Union’s February 27 leaflet, Dodds sought out Mur-
duca, reported his knowledge of the Union’s campaign, unlawfully inter-
rogated her about the Union’s other leaders, and unlawfully solicited
grievances.
66 This unfairness becomes magnified, once one appreciates that
Horseshoe is haphazard in its disciplinary timing. See, e.g. (R. Exh.
54(a) (11-day lag), 54(b) (7 days), 82 (0 days), 55(a)(1day ), 55(c) (19
b. Analysis
Given that Murduca is not a Section 2(11) supervisor, it must
now be assessed whether her firing violated Section 8(a)(3). I
find that it did.
I. PRIMA FACIE CASE
The GC made a prima facie showing that Murduca’s protected
activity was a motivating factor. She initiated the Union’s or-
ganizing drive, was an important member of the organizing team,
and actively led early organizing efforts. Horseshoe was keenly
aware of these activities.65 There is also significant evidence of
union animus as evidenced by unlawful surveillance, interroga-
tion, disparate application of workplace rules, solicitation of
grievances, threats and promises.
II. AFFIRMATIVE DEFENSE
Horseshoe failed to show that it would have fired Murduca,
absent her protected activity. Although it asserted that it even-
handedly applied its rules and fired her under its progressive dis-
ciplinary policy, the record demonstrates otherwise.
For several reasons, I find that Horseshoe would not have fired
Murduca, absent her protected activity. First, the harsh timing
of Murduca’s discipline reeks of unfairness. Specifically, Horse-
shoe defines an employee’s disciplinary date as the date of im-
plementation (i.e., when discipline is received), which is a dis-
cretionary event that falls under Horseshoe’s total control. See,
e.g. (R. Exh. 102). Given that Murduca was on the last rung of
the policy and performance ladder and had an active final written
warning dated April 18, 2017 that would have dropped from the
policy and performance ladder on April 18, 2018 (i.e., after a
year), Horseshoe had the choice of disciplining Murduca prior to
April 18 and callously firing her (i.e., its chosen path), or mod-
erately issuing her a documented coaching after April 18 (i.e.,
just waiting 11 additional days). This benevolent exercise in
moderation would have allowed Horseshoe to retain a long-term
and highly trained worker, and consistently and neatly issue the
same documented coaching to both Strickland and Murduca for
the same offense. Simply put, Horseshoe’s decision to not wait
a few additional days to achieve a more Solomon-like outcome
produced an egregious outcome and flowed from invidious treat-
ment.66 Second, there is disparate treatment in Horseshoe’s over-
all handling of the Murduca matter beyond unfair timing, as ev-
idenced by its failure to discipline Strickland’s and Murduca’s
direct supervisor, Tammy Pierce, for witnessing their transgres-
sion, and then failing to report it to upper management and/or
days), 55(d) (4 days), 98 (15 days), 129 (7 days), 113 (16 days)); GC
Exhs. 20 (7 days), 46 (4–10 days), 44 (22 days (L. Smith)). There is
simply no valid reason why Horseshoe could not have waited until after
April 18 (i.e., only 16 days from the occurrence date) to discipline Mur-
duca, when it has waited much longer to implement discipline in many
other cases. Murduca’s stakes were exceedingly high, and a short lapse
would have promoted fairness. This is not to say that Horseshoe should
wait multiple months to save a worker’s job, but, it should minimally act
reasonably and at least consider the dire impact associated with its timing
and failing to afford a long-term worker a short delay, which it did not
herein. As an alternative, Horseshoe could also establish a consistent
disciplinary timing practice going forward, which would eliminate any
opportunity to use timing as a weapon to remove its union adherents.
HORSESHOE BOSSIER CITY HOTEL & CASINO 17
initiating prompt discipline. Given the alleged seriousness of
this transgression, the decision to hold harmless an eyewitness
supervisor, who simply sat on her hands, is unconscionable. An
evenhanded employer would have acted against all supervisory
and nonsupervisory participants and would have clearly disci-
plined a supervisor for failing to enforce its workplace rules.
Third, the extensive level of animus present herein further sup-
ports the conclusion that Horseshoe’s motivations and timing
were improper. On these bases, each of which would suffice in
isolation, I find that Horseshoe failed to show that it would have
taken the same action against Murduca regardless of her pro-
tected conduct.67
CONCLUSIONS OF LAW
1. Horseshoe is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a Section 2(5) labor organization.
3. Horseshoe violated Section 8(a)(1) by:
(a) Prohibiting employees from distributing Union organizing
materials in nonwork areas during nonwork time.
(b) Interrogating employees about their Union and other pro-
tected concerted activities.
(c) Soliciting grievances from employees and making implied
promises to remedy their grievances in order to undermine their
union support.
(d) Threatening employees that they may lose various bene-
fits, if they engage in Union or other protected concerted activi-
ties.
(e) Telling DRDs that they were supervisors, who cannot un-
ionize or vote in the union election in order to undermine their
union support.
(f) Promising DRDs the right to bid on FT dealer jobs, in or-
der to undermine their union support.
(g) Creating the impression that employees’ union activities
are under surveillance.
(h) Blaming the Union for DRDs not being permitted to bid
on open FT dealer slots.
(i) Ordering employees to remove union pins from their ID
badges.
4. Horseshoe violated Section 8(a)(3) by:
(a) Refusing to consider DRDs for FT dealer positions.
(b) Firing Murduca because she engaged in union and other
protected concerted activities.
5. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7).
REMEDY
The appropriate remedy for the violations found herein is an
67 It is also noteworthy that Horseshoe periodically issues informa-
tional entries instead of discipline, when circumstances warrant. Given
that there is no evidence that a customer heard Murduca’s juvenile ex-
change and Horseshoe considered it to be so minor that it failed to even
discipline the direct supervisor for flatly ignoring this matter, a solid ar-
gument could be made that informational entries were warranted.
68 Because Horseshoe’s unlawful actions prevented the DRDs from
applying for these FT dealer jobs, it must first be shown at the compli-
ance phase exactly which DRDs would have applied for these jobs in
order to identify who Horseshoe refused to consider. Once this is estab-
lished, “if it is shown at [the] . . . compliance stage . . . that the
order requiring Horseshoe to cease and desist from its unlawful
conduct and to take certain affirmative action. It must offer Mur-
duca full reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to
her seniority or any other rights or privileges previously enjoyed.
It must also make her whole for any loss of earnings and other
benefits suffered as a result of the unlawful termination of her
employment on April 7, 2018. Backpay shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest compounded daily as prescribed in New Horizons, 283
NLRB 1173 (1987), and Kentucky River Medical Center, 356
NLRB 6 (2010). Additionally, it must compensate her for any
adverse tax consequences of receiving a lump-sum backpay
award, and file with the Regional Director a report allocating the
backpay award to the appropriate calendar years. See AdvoServ
of New Jersey, Inc., 363 NLRB No. 143 (2016). It must com-
pensate her for her search-for-work and interim employment ex-
penses, regardless of whether those expenses exceed interim
earnings. See King Soopers, Inc., 364 NLRB No. 93 (2016). The
search-for-work and interim employment expenses shall be cal-
culated separately from taxable net backpay, with interest com-
pounded daily as prescribed in New Horizons, supra, and Ken-
tucky River Medical Center, supra. It shall remove from its files
any references to her unlawful April 7, 2018 termination, and
notify her in writing that this has been done and that this action
will not be used against her in any way. Regarding Horseshoe’s
discriminatory refusal to consider DRDs as a class for FT dealer
openings, the Board has held that, “the question whether the ap-
plicant would have been offered that job had he been given non-
discriminatory consideration at the outset is a remedial issue ap-
propriately determined in the compliance stage of the refusal-to-
consider violation.” FES, 331 NLRB 9 (2000).68 Finally, Horse-
shoe shall post the attached notice in accord with J. Picini Floor-
ing, 356 NLRB 11 (2010).
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended69
ORDER
Horseshoe Bossier City Hotel & Casino, Bossier City, Loui-
siana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting employees from distributing union organizing
materials in non-work areas during nonwork time.
(b) Interrogating employees about their Union and other pro-
tected concerted activities.
(c) Soliciting grievances from employees and making implied
promises to remedy their grievances in order to undermine their
Respondent, but for the failure to consider the [DRD] discriminatees [on
March 23, 2018], would have selected any of them for any [FT dealer]
job openings . . ., the Respondent shall hire them for any such position
and make them whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them.” Mainline Contracting
Corp., 334 NLRB 922, 924 (2001).
69 If no exceptions are filed as provided by §102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in §102.48 of the Rules, be adopted by the Board
and all objections to them shall be deemed waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
union support.
(d) Threatening employees that they may lose various bene-
fits, if they engage in Union or other protected concerted activi-
ties.
(e) Telling DRDs that they were supervisors, who cannot un-
ionize or vote in the union election in order to undermine their
union support.
(f) Promising DRDs the right to bid on FT dealer jobs, in or-
der to undermine their union support.
(g) Creating the impression that employees’ Union activities
are under surveillance.
(h) Blaming the Union for DRDs not being permitted to bid
on open FT dealer slots.
(i) Ordering employees to remove Union pins from their ID
badges.
4. Refusing to consider DRDs for FT dealer positions because
of their Union or other protected concerted activities.
(a) Firing or otherwise discriminating against any employee
because they engaged in Union or other protected concerted ac-
tivities.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the Act’s policies.
(a) Within 14 days from the date of this Order, rescind its
prohibition against hiring DRDs for FT dealer positions.
(b) Consider for hire those DRD applicants identified at the
compliance phase for any of FT dealer job openings that were
posted from March 23, 2018 through 6 months from the date of
this Order in accord with nondiscriminatory criteria, and notify
them, the Union and the Regional Director for Region 15 of fu-
ture openings in positions for which they would have applied or
substantially equivalent positions for a period of 6 months from
the date of this Order. If it is shown at a compliance stage of this
proceeding that Horseshoe, but for the failure to consider the
DRD discriminatees to be identified at the compliance stage,
would have selected them for FT dealer openings, Horseshoe
shall hire them for any such position and make them whole for
any losses, in the manner set forth in the remedy section of this
Decision and Order.
(c) Within 14 days from the date of this Order, notify all
DRDs in writing that any future job applications will be consid-
ered in a non-discriminatory way.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusal to consider the
DRD discriminatees for FT dealer jobs, and within 3 days there-
after notify them in writing that this has been done and that the
refusal to consider them for these positions will not be used
against them in any way.
(e) Within 14 days from the date of the Board’s order, offer
Murduca full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position, without prej-
udice to her seniority or any other rights or privileges previously
70 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
enjoyed.
(f) Make Murduca whole for any loss of earnings and benefits
suffered as a result of the April 7, 2018 discriminatory termina-
tion of her employment, in the manner set forth in the remedy
section above.
(g) Make Murduca whole for her reasonable search-for-work
and interim employment expenses, in the manner set forth in the
remedy section above.
(h) Compensate Murduca for the adverse tax consequences,
if any, of receiving a lumpsum backpay award, and file with the
Regional Director for Region 15, within 21 days of the date the
amount of backpay is fixed, either by agreement or Board Order,
a report allocating the backpay award to the appropriate calendar
year.
(i.) Preserve and, within 14 days of a request, or such addi-
tional 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 elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of the Board’s order.
(j) Within 14 days of the date of the Board’s Order, remove
from its files any reference to the unlawful April 7, 2018 termi-
nation of Murduca, and within 3 days thereafter, notify her in
writing that this has been done and that those actions will not be
used against her in any way.
(k) Within 14 days after service by the Region, post at its
Bossier City, Louisiana facility and other facilities where the unit
performs work copies of the attached notice marked “Appen-
dix.”70 Copies of the notice, on forms provided by the Regional
Director for Region 15, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed
by the Respondent at any time since February 27, 2018.
(k) Within 21 days after service by the Region, file with the
Regional Director for Region 15 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps the Respondent has taken to comply.
Dated Washington, D.C. July 30, 2019
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
HORSESHOE BOSSIER CITY HOTEL & CASINO 19
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT prohibit you from distributing Union organizing
materials in nonwork areas of our facility such as our parking
garage during your non-work time.
WE WILL NOT interrogate you about your Union and other pro-
tected concerted activities.
WE WILL NOT solicit grievances from you and make implied
promises to remedy these grievances in order to undermine your
union activities and support.
WE WILL NOT threaten that you could lose your P.T.O. leave,
ability to make last-minute leave requests, access to management
and other present benefits, if you engage in Union or other pro-
tected concerted activities.
WE WILL NOT tell our DRDs that they are supervisors, who
cannot unionize or vote in the Union election in order to under-
mine their union activities and support.
WE WILL NOT promise our DRDs the right to bid on FT dealer
jobs, in order to undermine their union support.
WE WILL NOT create the impression that your union activities
are under surveillance.
WE WILL NOT blame the Union for DRDs not being permitted
to bid on open FT dealer slots.
WE WILL NOT order you to remove Union pins from your ID
badges.
WE WILL NOT refuse to consider DRDs for FT dealer positions
because they support the Union or any other union.
WE WILL NOT fire or otherwise discriminate against any of you
for supporting the Union or any other union.
WE WILL NOT in any like or related manner interfere with, re-
strain or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL consider for hire those DRD applicants identified at
the compliance phase for any of FT dealer job openings that were
posted from March 23, 2018 through 6 months from the date of
this Order in accord with nondiscriminatory criteria, and notify
them, the Union and the Regional Director for Region 15 of fu-
ture openings in positions for which they would have applied or
substantially equivalent positions for a period of 6 months from
the date of this Order.
WE WILL, if it is shown at a compliance proceeding that, but
for our failure to consider the DRD discriminatees to be identi-
fied at the compliance stage, we would have selected certain
DRDs for FT dealer openings, hire them for these positions and
make them whole for any losses, in the manner set forth in the
remedy section of this decision and order.
WE WILL, within 14 days from the date of the Board’s Order,
notify all DRDs in writing that any future job applications will
be posted and considered in a nondiscriminatory way.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful refusal to consider
the DRD discriminatees for FT dealer jobs, and within 3 days
thereafter notify them in writing that this has been done and that
the refusal to consider them for these positions will not be used
WE WILL , within 14 days from the date of the Board’s order, offer
Judith Murduca full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Murduca whole for any loss of earnings and
benefits suffered as a result of our unlawful termination of her
employment on April 7, 2018.
WE WILL also make Murduca whole for her reasonable search-
for-work and interim employment expenses.
WE WILL also compensate Murduca for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and file
with the Board’s Regional Director a report allocating the back-
pay award to the appropriate calendar year.
WE WILL also remove from our files any reference to Mur-
duca’s unlawful April 7, 2018 discharge and notify her in writing
that this has been done and that those actions will not be used
against her in any way.
HORSESHOE BOSSIER CITY HOTEL &CASINO
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/15-CA-215656 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.