Mandalay Bay Resort & Casino

National Labor Relations Board - Board Decisions

Aug 17, 2010

355 N.L.R.B. 529 (N.L.R.B. 2010)

MANDALAY BAY RESORT & CASINO
355 NLRB No. 92
529
Mandalay Corp., d/b/a Mandalay Bay Resort & Ca-
sino and International Union, Security, Police
and Fire Professionals of America (SPFPA).
Case 28–RC–6596
August 17, 2010
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held June 13, 2008,1 and the administrative law judge’s
report recommending disposition of them. The election
was conducted pursuant to a Decision and Direction of
Election. The tally of ballots shows 110 for and 123
against the Petitioner, with 4 challenged ballots, an insuf-
ficient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has adopted the judge’s findings2
and recommendations3 only to the extent consistent with
this Decision and Direction of Second Election.
For the reasons set forth below, we find merit in the
Petitioner’s Objection 16, which alleged that during the
critical period, the Employer solicited grievances and
expressly or impliedly promised to remedy them. Conse-
quently, we shall direct a second election.
The relevant facts are as follows. The Employer oper-
ates a resort and casino in Las Vegas, Nevada. In April,
the Petitioner filed a petition to represent the Employer’s

1 All dates are in 2008.
2 The judge was sitting as a hearing officer in this representation
proceeding. The Petitioner has excepted to some of the hearing offi-
cer’s credibility findings. The Board’s established policy is not to
overrule a hearing officer’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have
carefully examined the record and find no basis for reversing the find-
ings.
3 The Petitioner filed 19 objections. After the hearing, but before the
judge issued his Report on Objections, the Petitioner withdrew Objec-
tions 6–11 and 17. The judge recommended that the Board overrule all
of the Petitioner’s remaining objections. Absent exceptions, we adopt
pro forma the judge’s recommendations concerning Objections 2, 3,
and 13. We also adopt the judge’s recommendation to overrule Objec-
tions 1, 4, 5, and 18, although we disavow the judge’s finding that
union observer Barry Gropp’s “YES” sticker was not an “insignia” and
that the wearing of it constituted improper electioneering. As explained
below, we will sustain Objection 16 to the extent that it alleges that the
Employer improperly solicited grievances about a change in its over-
time policy and implicitly promised to remedy them.
Although we find it unnecessary to pass on Objections 12, 14, 15,
19, and the remaining allegations encompassed by Objection 16, we
disavow the judge’s broad statement that changes to an employer’s
grooming policy could not influence the outcome of a union representa-
tion election.
security officers. Shortly before the June 13 election, the
Employer convened a series of meetings with the secu-
rity officers. At these “focus meetings,” the Employer’s
high-ranking representatives discussed the union cam-
paign and asked the officers about their work-related
concerns. Officer Barry Gropp testified that managers
told the officers that the purpose of the meetings was “so
they could understand problems that we encountered and
our working conditions . . . they were in answer to the
concerns and problems we had expressed,” and that “sen-
ior management was talking to us about our desire to
form a union.” There is no evidence that the Employer
had conducted similar meetings in the past.4
At one focus meeting, Bill Hornbuckle, the Em-
ployer’s CEO, addressed the officers’ concerns about
overtime. The previous January, the Employer had
greatly reduced full-time officers’ overtime opportunities
when it hired part-time officers to work the extra hours.
The full-time officers had immediately complained about
this change at preshift briefings and had continued their
complaints, with no response from management, in the
months that followed.5 Gropp testified that Hornbuckle
told the employees at the focus meeting that “it was a
failed strategy to bring in a large number of part-time
officers and it was being addressed and looked at.” At a
later focus meeting, Chuck Bowling, the Employer’s
executive vice president, repeated this comment. The
Employer subsequently reinstated overtime opportunities
for the full-time officers, though it is unclear whether this
occurred prior to the election.
The judge recommended overruling the objection,
finding that Hornbuckle’s and Bowling’s statements did
not amount to an implied promise to restore overtime in
order to influence the election outcome. We disagree.
The Board has long held that, in the absence of a pre-
vious practice of doing so, an employer’s solicitation of
grievances during an organizational campaign is objec-
tionable when the employer expressly or impliedly prom-
ises to remedy those grievances. See, e.g., Majestic Star
Casino, LLC, 335 NLRB 407, 407 (2001), citing Maple
Grove Health Care Center, 330 NLRB 775 (2000). An
employer may rebut the inference of an implied promise
by, for example, establishing that it had a past practice of
soliciting grievances in a like manner prior to the critical
period, or by clearly establishing that the statements at

4 These meetings differed from the Employer’s preshift briefings,
where shift managers issued daily assignments and provided employees
with news and relevant information. The preshift meetings predated
the petition.
5 This was the only evidence of employee grievances presented to
the Employer at preshift briefings or any other forum prior to the filing
of the petition.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 530
issue were not promises. See Maple Grove Health Care
Center, supra at 775. While an employer that has had a
past practice and policy of soliciting grievances may con-
tinue to do so during an organizational campaign, an em-
ployer cannot rely on past practice if it “significantly
alters its past manner and methods of solicitation during
the union campaign.” House of Raeford Farms, enfd.
mem., cert. denied. Further, “the Board has found
unlawful interference with employee rights by an em-
ployer’s solicitation of grievances during an organiza-
tional campaign although the employer merely stated it
would look into or review the problem but did not com-
mit itself to specific corrective action; the Board rea-
soned that employees would tend to anticipate improved
conditions of employment which might make union rep-
resentation unnecessary.” Majestic Star Casino, supra at
407–408, citing Uarco, supra at 1–2.
Applying these principles, we find that Hornbuckle
and Bowling solicited grievances and implicitly prom-
ised to remedy them at the preelection focus meetings
that addressed the full-time security officers’ overtime
concerns. Contrary to the dissent, the burden was on the
Employer to rebut the inference of an implied promise by
establishing that, prior to the critical period, it had a past
practice of soliciting grievances and implicitly promising
to remedy them, or by clearly establishing that its “failed
strategy” statements were not promises. See Maple
Grove Health Care Center, supra at 775. Here, the Em-
ployer had been aware of the officers’ dissatisfaction
with the overtime policy for months, yet there is no evi-
dence that high-level managers met with them to discuss
their complaints about overtime or any other issue prior
to the critical period. Unlike the preshift briefings,
where shift managers communicated news and assign-
ments to employees, the Employer’s top officials con-
vened the focus meetings for the purpose of answering
employee concerns, soliciting complaints, and addressing
issues pertaining to the Union’s campaign.6 Horn-
buckle’s and Bowling’s statements referencing “a failed
strategy” that “was being addressed and looked at” con-
stituted a promise to look into a specific grievance that
the Employer knew was of great importance to a large

6 Moreover, contrary to the dissent, there is no evidence that shift
managers actually discussed the overtime policy or any other matter of
concern with employees during preshift briefings, much less promised
to remedy or reconsider those policies. Additionally, noting the un-
precedented participation by the Employer’s high-level managers at the
focus meetings, we find that the Employer has failed to establish a
consistent past practice of soliciting employee grievances. See, e.g.,
Evergreen America Corp., 348 NLRB 178, 215–216 (2006), enfd. 531
F.3d 321 (4th Cir. 2008).
number of employees.7 Contrary to the Employer’s ar-
gument, these statements were not generalized expres-
sions within the limits of permissible campaign speech
or, as argued by the dissent, noncoercive expressions of
opinion. See Majestic Star Casino, supra at 408 fn. 4.
We therefore find that the Employer’s conduct in this
regard was objectionable and a new election is war-
ranted.
[Direction of Second Election omitted from publica-
tion.]

MEMBER SCHAUMBER, dissenting.
Unlike my colleagues, I would not reach out to reverse
the judge’s determination that the Petitioner, which lost
the election by a vote of 123 to 110, failed to prove that
certain indefinite and ambiguous remarks about overtime
policy made to employees at two meetings on indetermi-
nate dates constituted objectionable solicitations and im-
plied promises to remedy grievances.
First, there is no dispute that the Employer had an es-
tablished past practice that predated the filing of the elec-
tion petition of conducting regular shift meetings with
employees. Moreover the record clearly shows that em-
ployees could, and in fact did, raise concerns relating to
their employment with management at those meetings.
Indeed, as the judge found, employees began complain-
ing to management during shift meetings about the
change in overtime policy “almost immediately” after
implementation of the policy in January 2008, long be-
fore the critical period. Moreover, employees reiterated
those complaints and concerns “at just about every shift
briefing thereafter.” So my colleagues plainly err in at-
tempting to characterize the preexisting shift meetings as
narrow, one-sided employer recitations of daily assign-
ments, and the “focus meetings” as unprecedented oppor-
tunities for the solicitation of employee grievances. In
such circumstances, the burden was on the Petitioner to
establish that the Employer instituted a new practice of
entertaining employee grievances at meetings with man-
agement or significantly altered that practice of solicita-
tion during the union organizing campaign. As the judge

7 The dissent notes that the judge, in discussing the allegation that
the Employer changed its grooming policy to improperly influence the
election, stated that Gropp was “far from an ideal witness in terms of
his recall of events.” Relying on this statement, the dissent suggests
that the judge found all of Gropp’s testimony to be unreliable, including
that related to the alleged solicitation of grievances. We disagree.
Gropp clearly testified that Hornbuckle and Bowling each told employ-
ees that “it was a failed strategy to bring in a large number of part-time
officers and it was being addressed and looked at.” Rather than dis-
crediting this uncontroverted testimony, the judge implicitly credited it
by overruling the objection on the basis that Hornbuckle’s and Bowl-
ing’s statements were not implied promises.
MANDALAY BAY RESORT & CASINO 531
properly found, the Petitioner failed to satisfy that burden
here.1
Second, the line between permissible campaign speech
and an implied promise to remedy a grievance is a very
fine one that turns upon the specific words used and the
surrounding context. In reversing the judge and finding
that the Employer’s statements constituted implied prom-
ises, my colleagues rely solely on the testimony of em-
ployee Gropp. However, the judge described Gropp as
“far from an ideal witness in terms of his recall of
events.” As to specific words, when asked what employ-
ees were told about the purpose of the “focus meetings,”
Gropp conceded that “I don’t remember specifically how
they communicated to us. I don’t remember the specific
words used.” Further, while Gropp allegedly recalled
Hornbuckle saying “it was a failed strategy to bring in a
large number of part-time officers and that it was being
addressed and looked at,” the judge noted that Gropp

1 The only apparent possible difference between the discussions that
occurred at the shift meetings and “focus meetings” is the presence of
senior executives at the latter. I say “apparent” because there was no
evidence that senior executives had never attended shift meetings, and
the burden of proof, of course, rests with the objecting party. Even
assuming the presence of executives was novel, the airing of grievances
with management at meetings clearly was not, and there is no evidence
to show that the presence of executives significantly altered that prac-
tice.
“could not remember anything else that Hornbuckle said
about the issue.” Under the circumstances, I agree with
the judge that it is difficult to characterize Hornbuckle’s
alleged statement and others to the effect that “they had
made mistakes” as implied promises to restore the old
overtime policy. On this spare record, and in light of the
judge’s characterization of Gropp’s testimony and faulty
recall, my colleagues err in supplanting their judgment
for that of the trier of fact.
Finally, even assuming Gropp accurately recalled
Hornbuckle’s words, I still would not find the existence
of objectionable conduct warranting a new election. As
noted above, listening to employee complaints at meet-
ings was an established management practice. And char-
acterizing a change in policy that drew vociferous and
continued opposition from numerous employees long
before the petition was filed as a “failed strategy” strikes
me as a permissible and noncoercive expression of opin-
ion protected by Section 8(c). To the extent Hornbuckle
suggested the problem was being “looked at,” there is no
evidence that the “looking” had not been initiated prior
to the union presence. In any event, the statement was at
best ambiguous and the judge was precisely right in con-
cluding that finding objectionable conduct based on
Gropp’s muddled testimony “would be a reach.” I there-
fore respectfully dissent.