Aliante Gaming, LLC d/b/a Aliante Casino and Hotel

National Labor Relations Board - Administrative Judge Opinions

Mar 17, 2015

28-CA-126480 (N.L.R.B. Mar. 17, 2015)

JD(NY)–12–15
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ALIANTE GAMING, LLC d/b/a
ALIANTE CASINO AND HOTEL
and Case No. 28-CA-126480
LOCAL JOINT EXECUTIVE BOARD OF
LAS VEGAS, CULINARY WORKERS UNION,
LOCAL 226 AND BARTENDERS UNION
LOCAL 165, AFFILIATED WITH UNITE HERE
Nathan A. Higley, Esq., Eilise Oviedo, Esq.,
Stephen Wamser, Esq. of Las Vegas, NV
for the General Counsel.
Mark J. Ricciardi, Esq., Anthony B. Golden, Esq.
(Fisher & Phillips, LLP) Las Vegas, NV
for the Respondent.
Eric Myers, Esq.
(McCracken Stemerman Bowen & Holsberry)
San Francisco, CA
for the Charging Party.
DECISION
Statement of the Case
KENNETH W. CHU, Administrative Law Judge. This case was tried in Las Vegas, NV on
October 14, 15, 16 and December 1, 2, 2014 pursuant to a complaint issued by Region 28 of
the National Labor Relations Board (NLRB). The Local Joint Executive Board of Las Vegas,
Culinary Workers Union, Local 226 and Bartenders Union Local 165, affiliated with UNITE
HERE filed the charge on April 11, 20141 and the General Counsel issued the complaint on May
30, 2014. The Aliante Gaming, LLC d/b/a Aliante Casino and Hotel (Respondent) timely filed
answers denying the material allegations in the complaint (GC Exh. 1).2
The discriminatee, Maria Lourdes Cruz Sanchez (Cruz), was a hostess/cashier at the
Respondent’s Aliante Medley Buffet. The complaint alleges that the Respondent suspended
Cruz on April 4 and subsequently discharged her on April 8 because Cruz formed, joined, and

1 All dates are in 2014 unless otherwise indicated.
2 The General Counsel exhibits are identified as “GC Exh.” and Charging Party and Respondent
exhibits are identified as “CP Exh.” and “R Exh.” The closing briefs for the General Counsel, Charging
Party and Respondent are identified as “GC Br.”, “CP Br.”, and “R Br.” The transcript is identified as “Tr.”
JD(NY)–12–15
2
assisted the union and engaged in concerted activities in violation of Section 8 (a) (3) and (1) of
the National Labor Relations Act (Act).3
The General Counsel moved to amend the consolidated complaint during the hearing on
October 3. The motion to amend was granted (Tr. 6, 7). The amended consolidated complaint 5
alleges that the Respondent also violated Section 8(a)(1) of the Act when on April 4, a
supervisor promulgated and has since maintained a directive or rule that its employees may not
speak to its other employees about the discipline they receive (GC Exh. 1N).4
On the entire record, including my observation of the demeanor of the witnesses, and 10
after considering the briefs filed by the parties, I make the following
Findings of Fact
I. Jurisdiction 15
and labor organization status
The Respondent, a corporation, operates the Aliante casino and hotel in North Las
Vegas, Nevada, where it annually purchased and received at its facility goods valued in excess
of $50,000 directly from points outside the State of Nevada. The Respondent admits, and I find, 20
that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
25
A. Background
The Respondent is engaged in the business of lodging, gaming, dining and
entertainment at its facility. The Respondent is a stand-alone hotel and casino located 12-20
miles north of Las Vegas. At the time of the complaint, the Respondent has approximately 800 30
employees. The Respondent is not associated with any other gaming or hotel facilities in Las
Vegas, but was previously one of ten casino and hotel operations, collectively known as the
Station Casinos (Station). The Respondent was purchased when Station was reorganized in a
bankruptcy proceeding. The Respondent is not affiliated with any of the facilities owned by
Station that continue to operate after bankruptcy. However, Station continued to manage the 35
Respondent’s operations until November 1, 2012 when the Respondent came under new
management. The Respondent hired the majority of the workforce employed by Station and
retained the employee handbook. The Respondent has hired additional employees and has
updated its handbook since 2012. While the handbook retained the same seniority, dates of
hire, vacation accruals, pay rates and benefits of employees previously with Station, the 40
Respondent made revisions in the handbook, including the develop and implementation of new
guest service standards (see below).

3 The complaint was consolidated with Case No. 28-CA-131592 on August 27, which involved a
charge filed by Fernanda Chavez, an individual employed by the Respondent. During the hearing, I
discussed the possibility of settlement and the parties entered into an agreement on December 1 with
respect to this complaint. The settlement agreement was entered into the record (Tr. 591).
4 The amendment also included a similar directive issued to Chavez on June 18, but, the parties did
not litigate this issue inasmuch as the Chavez complaint was settled.
JD(NY)–12–15
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B. The Aliante Management Team
On November 1, 2012, the Respondent assumed total control of Aliante operations with
a new management team. Terrance “Terry” Downey (Downey) became general manager of
Aliante. He previously served as the general manger in several Station properties until his 5
retirement in 2009. He served as a consultant to Aliante from July 2012 until he became the
general manager in November 2012. Rich Danzak (Danzak) is the vice president of the human
resource department at Aliante. He was hired as a consultant in June 2012 and became the
vice president on October 1, 2012. Danzak was not previously employed by Station. Danzak
is ultimately responsible for the discharge of Aliante employees. 10
Barbara Kelly (Kelly) is the human resource manager and works under Danzak. Kelly is
responsible for labor relations issues and the discipline of employees. She is involved in
making the recommendation to terminate an employee after consulting with the relevant
department vice president(s) and Danzak (Tr. 98-100). Heidi Heath (Heath) is the risk manager 15
and a co-equal to Kelly in labor relations functions. Heath was hired as a team member
relations manager in 2011 and was recently promoted to her risk manager position. Heath
currently holds both positions and handles investigations, employee concerns, training, and
policy implementation. She also handles workers compensation, safety, general liability, and
anything related to risk management. Heath has the authority to recommend discipline and 20
other personnel actions. Heath was previously employed by Station from 2000 to 2012 as a
team member relations manager (Tr. 288).
Robert Bethune (Bethune) is the vice president for food and beverage at Aliante. Bonnie
Schafer-Rabonza (Rabonza) was and is the buffet manager at the Aliante Medley Buffet 25
restaurant since April 2013. Rabonza is responsible for the daily buffet operations and works
closely with Bethune. Rabonza has the authority to recommend discipline, including discharge.
Rabonza was previously employed by Station as an assistant beverage manager and buffet
manager from 2009 until April 2012, when she left to work for the Red Rock casino. Rabonza
was hired by Aliante in April 2013 under Aliante’s new owners. Rabonza has two assistant 30
buffet supervisors: Maya Culverson (Culverson) and Raschelle Williams (Williams). Rabonza
testified that Cruz is a hostess and cashier at the buffet and has known her since February 2011
at the time Aliante was owned by Station (Tr. 452-454; 490).
C. Aliante’s Disciplinary Policy35
The Respondent maintains an employee handbook titled “Team Member Handbook” that
contains personnel and employee policies (R Exh. 11 at Tab R-S.2; GC Exh. 37). Danzak
testified that most of the personnel and employee policies were carried over from the Station
handbook. Danzak indicated that there were some personnel changes, but could not 40
specifically recall the revisions made by Aliante. Danzak said the effective date of the Aliante’s
handbook was April 1, 2013 (Tr. 744, 745). The handbook contains the company’s progressive
disciplinary policy relating to employee unsatisfactory work performance and conduct. The
steps range from a simple notation on an information log of the infraction, verbal counseling,
followed by a documented coaching, written warning, final written warning and separation. The 45
disciplinary procedure also provides the right of management to forego progressive discipline in
certain performance-related conduct, such as
“Insubordination, physical altercations, rude, discourteous, offensive, abusive,
threatening, intimidating, unprofessional conduct or behavior towards a guest, team 50
member or supervisor.”
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Under such circumstances, the employee is given a Suspension Pending Investigation
(SPI) and may be immediately terminated after the investigation (GC Exh. 6).
Danzak testified that there was no “look back period,” meaning that a supervisor could
consider all prior discipline when meting out new discipline, but subsequently testified to a 1-5
year look back period (Tr. 745, 747). Heath testified that any policy changes in the handbook
from Station to Aliante were documented and notice of the changes was provided in writing to
the employees. Heath believes that prior discipline is active for a 1-year look back and not 6
months.5 She indicated that the 6 month look back was the policy at Station. She said the 1-
year change was not placed in writing, but employees were informed of the 1-year period when 10
they are issued disciplined (Tr. 302-304).
D. The Aliante’s SOAR Standards
Aliante developed its own unique customer service philosophy called SOAR after taking 15
over management from Station. SOAR is an acronym that stands for Smile and welcome,
Opportunity, Anticipate, and Remember. Downey testified that the Aliante property is more than
20 miles from downtown Las Vegas and does not get the pedestrian traffic similar to other
casinos on the Strip. Downey said that Aliante must concentrate on customer service and
amenities to attract guests. Downey testified that “we kind of make (sic) our stand on the quality 20
of our product and the quality of our service is better than our competitors” (Tr. 193, 194).
Danzak testified that he developed the SOAR principles with the training manager. Danzak
insisted that SOAR did not exist under Station, but admitted that Station had some similar
customer service policy in effect (Tr. 745-747, 777, 779). Danzak said that all employees have
been trained on the SOAR philosophy (Tr. 748). 25
Under SOAR, there are specific standards for guest interactions for the staff working at
the Medley Buffet. It was expected for the employee working in the buffet cashier position to
know the 10/5 rule, which required the “staff to acknowledge (smile/make eye contact) guests
and fellow team members within 10 (feet) and initiate a friendly verbal greeting (smile, eye 30
contact, speak to the guest first) within 5 (feet)” (R. Exh. 2 at Tab R-B.1).
E. The Union Activity at Aliante
35
The union has been engaged in organizing employees at the Station casinos prior to
2010. The organizing campaign at the various Station facilities has included contentious
activities such as regular pickets, rallies, civil disobedience, and police arrests and media
publicity. The Board has also found multiple violations of the Act against Station Casino in
2012.6 40

5 Cruz testified that there was a 6 month look back period (Tr. 604).
6 Station Casinos, LLC, Aliante Gaming, LLC, d/b/a Aliante Station Casino & Hotel, Boulder Station,
Inc., d/b/a Boulder Station Hotel & Casino, NP Palace, LLC, d/b/a Palace Station Hotel & Casino,
Charleston Station, LLC, d/b/a Red Rock Casino Resort Spa, Santa Fe Station, Inc., d/b/a Santa Fe
Station Hotel & Casino, Sunset Station, Inc., d/b/a Sunset Station Hotel & Casino, Texas Station, LLC,
d/b/a Texas Station Gambling Hall & Hotel, Lake Mead Station, Inc., d/b/a Fiesta Henderson Casino
Hotel, Fiesta Station, Inc., d/b/a Fiesta Casino Hotel, and Green Valley Ranch Gaming, LLC, d/b/a Green
Valley Ranch Resort Spa Casino, 358 NLRB No. 153 (2012).
JD(NY)–12–15
5
The union has been organizing Aliante employees since it was sold to the new owners.
The parties agreed that the union’s organizing activity in Aliante operated by the Respondent
was generally limited. There were no pickets, rallies or other visible organizing activities at the
Aliante property. Some Aliante employees continued to wear union buttons left over from the
Station union campaign. Downey testified that he was aware of the union activity at Aliante 5
when he became general manager because the activity continued from the time Aliante was
owned by Station. Downey said that he was aware of employees wearing union buttons while
working and that union placards were displayed in the employee cafeteria. Downey denied that
the union activity was a campaign (Tr. 188-190). Downey described the union activity as “fairly
quiet” towards the end of 2013 (Tr. 222, 223). 10
However, there was an increase in union activity at Aliante in early 2014. On February
5, the union requested that Aliante enter into card check and neutrality agreements for
employees to decide on unionization (CP Exhs. 14, 15). A meeting was held between Danzak
and Downey to discuss the card check request and whether Aliante employees were interested 15
in unionizing (Tr. 814). Other forms of union activity were also discerned by Aliante
management during this time frame. On February 7, Danzak discussed the union’s handbilling
in the company’s lunchroom. Cara Welk, director of security, reported to Danzak that a
handmade table tent was set up in the employee cafeteria and handbills were being distributed
(CP Exh. 3). Danzak instructed her that the handbills should be discarded if found lying around 20
after the union had left the cafeteria. On February 8, Danzak and Downey also discussed a
flyer distributed by the union regarding health benefits provided to Aliante employees as
compared to the benefits received by union employees at other casinos. Danzak was
concerned that the flyer was misleading the employees because it had incorrect information
regarding the cost of Aliante’s health plan. Danzak and Downey met over the contents of this 25
flyer (CP Exhs. 2, 3. Tr. 234-236).
On or about February 9, there were discussions between Downey and Danzak regarding
Downey’s concerns that some Aliante employees were visited by union activists at their homes.
There was also a follow-up email to Heath and Kelly regarding the house visits by the union. 30
Downey was “very concerned” that the union was at employees’ residences (Tr. 188, GC Exh.
14). Heath replied back on February 10 that she had not heard of such recent house visits but
advised employees to contact the police and press harassment charges as necessary. Heath
denied that she documents union activities at Aliante. She indicated that Station had an
electronic system to document union activity, but that system is not in place with Aliante. Heath 35
did admit that employee complaints about union harassment are preserves in the employee’s
personnel folder (GC Exh. 14, 10; Tr. 291-296). Downey admitted there was an increase in
union activity during this time frame (Tr. 190). The vice-president of hotel operations, Michelle
Garcia, described the increase in union activity as a “spike” (GC Exh. 14). Danzak denied there
was an increase or spike in union activity, but did describe it as a “slow roll” (Tr. 757-759).40
F. The Discharge of Maria Lourdes Cruz Sanchez
Cruz was hired as a host/cashier at Aliante property on October 13, 2008 and continued
to work after ownership by the Respondent. Cruz worked at the Aliante Medley Buffet and her 45
work shift was Tuesday through Saturday from 1:30 to 9 p.m. Medley Buffet is open from 7 a.m.
to 10 p.m. and serves over 1500 guests on a daily basis. As a cashier, Cruz would greet the
guests; assign tables to the guests; acknowledge any complimentary vouchers; verify casino
membership status; accommodate any special needs required of the customer; and handle
monetary transactions behind the cashier counter. Cruz would also serve one day per week as 50
the host and would escort guests to their tables. Cruz was supervised by Rabonza, Maya
(Culverson) and Raschelle (Williams). Cruz worked as a host cashier until she was discharged
JD(NY)–12–15
6
on April 8. Since June 15, Cruz has been employed as an external union organizer with the
Culinary Union Local 226 (Tr. 600, 601).
Cruz has been disciplined on three occasions since the time the Respondent took
complete operations of Aliante in November 2012.7 On May 2, 2013, Cruz received a 5
performance document by Rabonza for being disrespectful to a buffet guest. The discipline was
a documented coaching to remind Cruz to perform as required under the SOAR standards.
Cruz replied that the guest complained to her about the price of the buffet. Cruz informed the
customer that she only works at the buffet and has no control over the prices. Cruz believed
that the complaint was lodged because the customer did not like the response given by her (Tr. 10
604, 605; GC Exh. 25).
According to Rabonza, the coaching document was justified because it was sufficient
that the customer perceived that Cruz was rude even if the employee was not (Tr. 685, 686).
Heath testified that Cruz came to see her in May 2013 regarding the customer complaint and 15
after receiving her verbal coaching. According to Heath, they discussed ways to change the
guest perception that Cruz was unsmiling, not speaking and was unfriendly (Tr. 300, 301).
1. The Discipline of Cruz for the April 1 Incident
20
On April 3, Cruz received her second discipline. Cruz received a written warning on
April 3 because she allegedly questioned a buffet customer about her disability on April 1. At
the entrance to the Medley Buffet, there are two lines that customers queue for seating. Facing
the entrance to the restaurant from the casino floor, the VIP line is closest to the cashier
counter. The VIP line is for customers with high-roller membership cards and people with 25
disabilities. The host cashiers are trained not to inquire about the non-observable disabilities
but to let those customers through the VIP line.
Culverson was working the buffet area on April 1 when another employee informed her
about a customer complaint regarding Cruz. In an email dated April 7, supervisor Culverson 30
informed Heath, Rabonza and Williams that she gave verbal corrective counseling to Cruz on
April1 because Cruz was questioning the buffet customer about her disability. According to
Culverson, Cruz admitted to asking the customer about her disability. Culverson stated to Cruz
that the customer filed a complaint and that it was the casino policy not to question the
membership status or disability of a customer waiting on the VIP line (GC Exhs. 22 at 8).8 The 35
time and attendance card for Cruz confirmed a verbal counseling given by Culverson on April
1(GC Exh. 32; Tr. 465).
According to Heath, employees are not to question customers if they do not have proper
credentials to be on the VIP line or if the customer is disabled. Heath testified there is no policy 40
to turn customers away from the VIP line (Tr. 308, 309). The performance document stated that
on April 1, Cruz had questioned a customer about her disability which was rude and
discourteous to the customer. In addition to the verbal counseling, supervisor Williams issued
Cruz a written warning on April 3 towards the end of Cruz’s work shift (GC Exh. 23).
45

7 Cruz’s prior discipline was allowed into the record as background information and to show the
progressive nature of the Respondent’s discipline policy.
8 There was a subsequent email from Culverson to Heath on May 6 that further elaborated the April 1
incident (GC Exh. 35).
JD(NY)–12–15
7
Cruz said she was well aware of the company policy not to inquire about the disability of
a customer waiting on the VIP line. She denies asking the customer about her disability. Cruz
did not sign the copy of the performance document but instead kept her copy and informed
Williams that she wanted to speak to Rabonza the following day (April 4) before signing the
document. Cruz met with Rabonza on April 4, but lamented that she was not given the 5
opportunity to explain what happened. Instead, Rabonza told Cruz that she was suspended
and was sent home. Cruz did not go home, but went to see Heath. Heath confirmed that Cruz
was suspended. Cruz said that Rabonza never gave her a reason for the suspension. Heath
replied that she could not divulge the reason at this time but told Cruz to return to her office on
April 7 (TR 610-614). 10
2. The Interaction Between Cruz
and Terrance Downey
Cruz has been a union member since 2006 and served as a committee leader while 15
employed at Aliante. As a committee leader, Cruz would attend meetings, discussed
employment issues, union rallies and marches with coworkers. Cruz would also discuss union
leaflets and fliers with coworkers (Tr. 599-601; see fliers at C Exhs. 2 at 3 and 6 at 2). Cruz’s
support for the union is known by the union button she wears on a daily basis while on the job.
The union button is 1 ¾-inch diameter and horizontally divided exactly in half by a line with the 20
top portion in bright white and the bottom half in bold red. The white portion of the button states:
Culinary/Bartenders Local 226/165 in capital letters and in the red portion: Committee Leader,
also in bold capital letters (C Exhs. 7 and 11).
On April 3, Cruz was working at the Medley Buffet cashier counter at the non-VIP line. 25
Cruz testified that her uniform consists of black slacks and a black vest over a dark green
blouse. Cruz wears the union button on the right side and the Aliante name tag on the left side
of her black vest at chest level. The name tag and union button are at the same level and
neither one is obstructed by other garments. Cruz is relatively short (under 5 feet 5 inches), but
testified that her name tag and union button is readily visible when she is working behind the 30
cashier counter (Tr. 639-643). According to Cruz, at approximately 2 p.m., she observed a
gentleman with a party of five people coming from the casino area to the counter. Cruz testified
that she was not looking down when the party arrived but greeted the man with “Hi, how are
you?” Cruz maintained that the man was sharply focused on her union button. Cruz said that
the man did not return the greeting but proceeded to drop a complimentary voucher on the 35
counter in front of her. Consistent with company policy, Cruz asked the man for his ID. The
man retrieved his driver’s license from his wallet and it is alleged that the man turned to the
group of people9 and remarked “She wants to see my ID.” Everyone had a good laugh. Cruz
said that she compared the ID with the name and signature on the voucher (GC Exh. 17). Cruz
testified that the name on the voucher did not match the ID and informed the man, “Sir, your 40
name doesn’t match with the comp” (TR. 617, 618). The man allegedly informed Cruz that he
was the person that had authorized the voucher and his name and signature was on the bottom
of the voucher. Realizing this, Cruz returned the ID, and said “Thank you, sir.” At this point,
another buffet employee approached the counter and recognized the man as Terrance Downey,
said “hello” to him and escorted the party to a buffet table. Downey did not join the party, but 45
left the buffet area. Cruz maintains that she did not recognize Downey’s name and signature on
the voucher and did not know who he was until informed by the other employee (Tr. 619).

9 Cruz believed that the group was approximately 12 feet from the counter.
JD(NY)–12–15
8
In contrast, Downey testified that he arrived at the buffet counter between 2-2:30 p.m.
with a party of five people. Downey testified that Cruz was busy looking down at the counter
when he approached her and she never looked up to greet him. Downey testified that Cruz did
not look at him and did not smile (Tr. 260). Downey testified that he did not know Cruz (Tr.
258), but remembered that Cruz was wearing a union button. Downey did not recall what was 5
on the button and did not remember reading Cruz’s name tag (Tr. 211, 260, 284). Downey
testified that he remembered seeing the union button when he placed the voucher down on the
counter (Tr. 258). At this point, Cruz asked Downey for his ID. Downey retrieved his driver’s
license and while doing so, he made humorous comment that Cruz was asking for his ID.
Downey said that the group was approximately 20 feet from the counter. Downey agrees that 10
by asking for his ID, Cruz was consistent with proper company policy. However, he maintains
that Cruz mistakenly believe that he was the guest on the voucher when she told him that his ID
did not match the guest name on the voucher. (Tr. 214, 260-262).
Downey said he had to correct Cruz by pointing to his name and signature at the bottom 15
of the voucher. Downey believed that Cruz should have paid more attention to the guest name
on the voucher and to his printed name and signature on the bottom of the voucher. Downey
maintains that Cruz never looked up during this entire transaction even when she asked him for
ID until another employee approached the counter, recognized Downey, greeted him and
escorted the party to the table (Tr. 263, 264). 20
Downey testified that he did not stay with the party but walked towards his office,
approximately 5 minutes away from the buffet area. He or his secretary called Bethune, the
vice-president of food and beverage. Downey said that Bethune came to see him within 5
minutes (Tr. 205-208). Downey said they began discussing the incident at the Buffet by saying 25
that he “…just had a very bad experience with the cashier at the Medley Buffet.” Downey said
that he did not know the name of the cashier but believed that Rabonza would know who was
stationed at the buffet counter at that time (Tr. 209, 210, 267).
Downey testified that Rabonza walked by within a “few minutes” of his conversation with 30
Bethune. Downey did not recall exactly what he said to Bethune, but recalled that Bethune
shook his head and said “…that’s not the kind of service we’re trying to provide” (Tr. 266, 267).
Downey described the cashier to Rabonza as a “shorter Hispanic lady.” Downey denied that
Rabonza identified the cashier as Cruz at that time. Downey said that Bethune and Rabonza
then left the office and assumed that they were going to investigate what had happened (Tr. 35
266-268).
Directly over the cashier counter at the Medley Buffet are cameras used as surveillance
and there is a record of any occurrences. The cameras are mainly focused on the cashier
transactions to guard against theft and other inappropriate activities. Downey testified that he 40
went to the surveillance room with Lou Dorn, the general counsel of Aliante at that time, shortly
after Bethune and Rabonza left his office. Downey said that the camera was directly overhead
the cashier and he viewed the top of Cruz’s head on the video tape. The video tape has no
audio. Downey testified that the video only showed his arms and hands and not his face. He
also did not know who the cashier was in the video. Downey asserted that the cashier was 45
identified to him as Cruz only after her discharge (Tr. 268, 268).10

10 The video tape of the buffet incident was subpoenaed but Downey testified that the events
recorded on the video are routinely written over after 7 days. Downey admitted that the video could have
been saved if requested. He is not aware if any supervisors had requested to security office to save the
video tape (Tr. 270-272).
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Rabonza testified that she received a call from Bethune between 3-4 p.m. on April 3 (Tr.
469, 510). Rabonza said that Bethune asked her to go with him to review the surveillance video
regarding an incident with Downey at the Medley Buffet because Downey did not know who the
cashier was. In contrast to Downey’s recollection, Rabonza testified that she never went to 5
Downey’s office; never spoke to Downey about the incident; and never participated in the
Downey/Bethune meeting (511-512).
Rabonza said that she went to the surveillance room with Bethune. She insisted that
she spoke to no one in management except Bethune. Rabonza said that she viewed the video 10
tape from a camera directly overhead the cashier area and observed Cruz looking down just
prior to Downey walking into the camera view. Rabonza said that the camera view was at a
wide angle even though it was above Cruz’s head and she was able to view Downey walking
towards the counter. Rabonza said she recognized him because she saw her face as he
entered the camera angle from the top of the screen. Rabonza maintained that she also saw 15
the group of people with Downey. Rabonza said that Cruz was working on a cross-word puzzle
at the counter and moved towards the cash register when Downey appeared. Rabonza also
recalled Cruz looking at Downey’s ID, but insisted that Cruz never looked up during the entire
interaction (Tr. 512-530).
20
Rabonza said that her role in viewing the video was to identify who was the cashier at
the buffet interacting with Downey (Tr. 532). Rabonza said that she reached no conclusions as
to whether Cruz had violated any SOAR principles. According to Rabonza, it was Bethune who
related to her the following
25
He just said your hostess cashier failed, all the SOAR things, she didn’t smile, she didn’t
this, she didn’t that. I didn’t see her not smiling.11
Rabonza said that she discussed with Bethune on the way out of the surveillance room,
that Cruz violated the 10/5 rule for not looking up and greeting Downey as he approached within 30
10 feet and not speaking to him within 5 feet of where Cruz was standing. She said they went
to see Danzak and informed him as to their observations on the video tape. Rabonza said she
could not recall telling Danzak anything except identifying the cashier as Cruz. Rabonza then
went home and spoke to no one else after meeting with Danzak (Tr. 535-541).
35
Rabonza testified that she was deciding on the type of discipline to Cruz for the incident
on April 1 regarding the disabled guest. Rabonza said that she emailed Heath on April 3 at
approximately 3 p.m. for information on Cruz’s discipline in May 2013 (GC Exh. 31). Rabonza
said that at this point in time, she was not yet aware of the Downey incident when she decided
to issue Cruz a written warning for the April 1 incident (Tr. 467-470; 490). 40
Danzak testified that Rabonza and Bethune came to see him around 3 p.m. after
reviewing the video tape. Danzak said that Rabonza identified Cruz as the cashier in the video
and Bethune described how Cruz violated the SOAR principles. Danzak said he never viewed
the video, but did review Cruz’s personnel folder on the computer. Danzak said he assigned 45
Heath to conduct an investigation over the incident (Tr. 760-762).

11 Tr. 531.
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3. The Discipline of Cruz for the April 3 Incident
Heath testified that she conducted the investigation while Cruz was on suspension.
Heath said that it was late in the afternoon on April 3 that Rabonza and Bethune caught her as
she was leaving for a meeting. According to Heath, Rabonza and Bethune had not yet 5
reviewed the video but had identified to Heath that the cashier was Cruz. Heath replied that she
was on her way to a meeting and depending on what the video shows; it could be a final
warning or a suspension. Heath said that she had not viewed the video at this point in time (Tr.
310, 311). On April 4, Heath discussed with Danzak regarding the April 3 incident and it was
decided that Cruz would be suspended pending an investigation. This information was related 10
to Rabonza before meeting with Cruz (Tr. 312).
On April 4, Rabonza met with Cruz at the beginning of her shift at 1:30 p.m. As noted
above, Cruz wanted to speak to Rabonza regarding the incident on April 1 with the disabled
guest before she acknowledged the written warning on her performance document (GC Exh. 15
23). Cruz said that she went to see Rabonza at the beginning of her work shift at 1:30 p.m.
Cruz waited a few minutes and went in to Rabonza’s office. Rabonza was sitting by her
computer and Williams was also present. Rabonza was aware of Cruz’s written warning that
Cruz received from Williams. She turned to Cruz and stated that “You’re (Cruz) in trouble” and
“you are being suspended.” Cruz was given a performance documentation dated April 412 with 20
a checked-off box: Suspension Pending Investigation (SPI). The document was signed by
Williams and Rabonza (GC Exh. 24).
According to Cruz, upon leaving the meeting, Rabonza allegedly said to Cruz, “do me a
favor, go home and don’t tell anybody, because nobody knows anything about it” (Tr. 614). 25
Cruz testified that since Rabonza refused to tell her the reason for the suspension, she went to
see Heath. Cruz said that Heath could not discuss the reason for her suspension, but told Cruz
to return on April 7 at 1:30 p.m. (Tr. 615, 616). In contrast, Rabonza denied making the
statement that Cruz could not speak to anyone regarding her discipline. Rabonza testified that
she informed Cruz that management would not discuss her discipline at that time (Tr. 690, 691). 30
During the investigation, Heath collected statements from Culverson and Rabonza
regarding the Downey/Cruz interaction (GC Exh. 22). Heath reviewed Cruz’s May 2013 incident
regarding a guest complaint over the pricing of the buffet; the written warning received by Cruz
for the April 1 incident regarding the disabled guest; and Cruz’s failure to follow the SOAR 35
standards with Downey on April 3 as the three reasons for discharging Cruz. Based upon this
review and her discussions with Danzak, Kelly, Rabonza and Bethune, it was decided on April 8
to discharge Cruz (Tr. 312-315).
Cruz returned to meet with Heath on April 7. This was considered a due process 40
meeting and only attended by Cruz and Heath. During the meeting, Heath took some notes
(GC Exh. 19) as to Cruz’s position over the April 1 and 3 incidents

She feels that she followed SOAR Above the Rest behaviors
– has been working hard since the discussion we had in May about the guest complaint. 45
She has been trained to make sure both the ID’s and comp slip names match.
-the names (first) were different.
-didn’t recognize the GM as an employee because he didn’t have a name tag on.

12 Williams mistakenly dated her signature as April 14, 2014.
JD(NY)–12–15
11
-was embarrassed when he joked with the other guests in the party about not
knowing him and needing his ID
-realized he worked here when Emily came over.
She smiled and greeted him, is sure she looked up and did what she was supposed to
do. Written Warning-5
She denies questioning the guest who complained about her disability.
-she knows it is illegal to ask about disabilities.
-when the woman presented her player’s card, she told
her next time she needed to pay in the regular line – not the VIP and handicapped
line. 10
-she told her because that is what they have always done.
Declined writing a statement.
Heath testified that Cruz accepted the fact that her guest service could be better and that
Cruz was willing to take ownership of her discipline (Tr. 450). On April 8, Cruz received a phone 15
call from Rabonza and was instructed to return to the HR office the following day. Cruz was
discharged on April 8 for “rude, discourteous behavior towards a guest” (GC Exh. 26). On April
9, Cruz arrived at the HR office at 9 a.m. and received a copy of her discharge notice from
Rabonza and she then completed her paperwork for the discharge (Tr. 624, 625; GC Exh. 27).
20
DISCUSSION AND ANALYSIS
a. Credibility
The credibility resolutions herein have been derived from a review of the entire 25
testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the
witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). A
credibility determination may rely on a variety of factors, including the context of the witness’
testimony, the witness’ demeanor, and the weight of the respective evidence, established or
admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the 30
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001). Credibility findings need not be all-or-nothing propositions—indeed,
nothing is more common in all kinds of judicial decisions than to believe some, but not all, of a
witness’ testimony. Daikichi Sushi, above.
35
b. Application of the Wright Line Standard
Section 8(3) of the Act prohibits employer interference, restraint, or coercion of
employees for their exercise of the rights guaranteed in Section 7 of the Act. Those rights
include “the right to self-organization, to form, join, or assist labor organizations, to bargain 40
collectively through representatives of their own choosing, and to engage in other concerted
activities of the purpose of collective bargaining or other mutual aid or protection.
The General Counsel asserts that the Respondent violated Section 8(a)(3) and (1) by
discharging Cruz in retaliation for her union activity. An employer violates Section 8(a)(3) by 45
disciplining employees for anti-union motives. Equitable Resources, 307 NLRB 730, 731
(1992). The Respondent asserts that Cruz was discharged for repeatedly failing to follow the
SOAR standards and was progressively disciplined.
Analysis of Cruz’s discharge is governed by the burden-shifting framework set forth in 50
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983); also,
JD(NY)–12–15
12
Nationsway Transport Services, 327 NLRB 1033, 1034 (1999). Under Wright Line, the General
Counsel must prove that an employee's union or other protected activity was a motivating factor
in the employer's action against the employee. The elements required to support such a
showing are union or protected concerted activity, employer knowledge of that activity, and
union animus on the part of the employer. Hawaiian Dredging Construction Company, Inc., 362 5
NLRB No. 10 (2015).13
If the General Counsel carries that initial burden, the burden then shifts to the employer
to prove, as an affirmative defense, that it would have taken the same action even in the
absence of the protected activity. See Manno Electric, Inc., 321 NLRB 278, 280 fn.12 (1996); 10
Farmer Bros., Co., 303 NLRB 638, 649 (1991). To meet this burden “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 conduct.”
Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984); Durham School Services, L.P., 360 NLRB
No. 85 (April 25, 2014). If, however, the evidence establishes that the reasons given for the 15
respondent's action are pretextual, the respondent fails by definition to show that it would have
taken the same action for those reasons, and its Wright Line defense necessarily fails. See
Golden State Foods Corp., 340 NLRB 382, 385 (2003), citing Limestone Apparel Corp., 255
NLRB 722 (1981).
20
Under Wright Line, I find that the General Counsel has established the initial burden to
show that protected conduct was a motivating factor in the employer’s decision. The elements
commonly required to support a finding of unlawful motivation are union activity, the employer’s
knowledge of that activity, and evidence of animus. Knowledge of an employee’s union
activities may be proven through direct or circumstantial evidence, including “the employer's 25
demonstrated knowledge of general union activity, the employer's demonstrated union animus,
the timing of the discharge in relation to the employee's protected activities, and the pretextual
reasons for the discharge asserted by the employer.” Kajima Eng’g & Construction Inc., 331
NLRB 1604 (2000).
30
The first two elements are not disputed. There was increase union activity in February
known to the managers and supervisors at Aliante. Downey testified that he was aware of
union activity before and after February. Downey did not believe the union activity was at the
level of an organizing campaign, but he nevertheless knew about the handbills, placards, button
wearing, and flyers in the employee cafeteria. Other management officials, such as Heath, 35
Welk and Kelly were also aware of the flyers in the cafeteria and raised concerns over visits by
union activists at employees’ residences. Garcia described the union activity as a “spike” in
February. Heath agreed that there was an “upsurge” of union activity in February (Tr. 379).
Danzak was also aware of union activity at Aliante. Although Danzak denied that there was an
increase, he described the activity as a “slow roll.” At the same time, the chief executive officer 40
and a board member of Aliante became aware of union activity when they were sent letters by
the union requesting check cards and neutrality agreements. Downey and Danzak were also
aware and expressed concerns over the letters. Lou Dorn, the general counsel for Aliante at

13 In Hawaiian Dredging Construction Company, Inc., the Board did not specifically discuss a fourth
element of nexus under the Wright Line analysis as was applied in Tracker Marine, LLC, 337 NLRB 644
(2002). See, CP Br. at 22. In decisions subsequent to Tracker, the Board has stated that, “Board cases
typically do not include [the fourth element] [nexus] as an independent element.” Wal-Mart Stores, Inc.,
352 NLRB 815, fn. 5 (2008) (citing Gelita USA, Inc., 352 NLRB 406, 407 fn. 2 (2008)); SFO Good-Nite
Inn, LLC, 352 NLRB 268, 269 (2008); also see Praxair Distribution, Inc., 357 NLRB No. 91 fn. 2 (2011).
JD(NY)–12–15
13
the time, described the union’s letter for check card and neutrality agreements as a “very
unusual letter”(CP Exh. 2; Tr. 236). Danzak met with Dorn and Downey over the contents of
the letter.
I also find that management was aware of Cruz’s union activities. Cruz was the union 5
committee leader and often met with employees at the cafeteria to discuss labor and
management issues. Cruz credibly testified that she wears her union button on a daily basis at
work. Her union button states in bold letters her title of committee leader. Rabonza and
Downey testified that they were aware of employees wearing union buttons while at work.
Downey saw Cruz’s union button on April 3 during their buffet interaction, but denied reading the 10
button. I do not credit Downey’s testimony on this point that he saw the union button but did not
read the contents of the button. It would be difficult for me to accept how he would know it was
a union button without reading the words on the button.
Under Section 7 of the Act, employees have the right to wear and display union insignia 15
while at work. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801–803 (1945). In particular,
“the right of employees to wear union insignia at work has long been recognized as a
reasonable and legitimate form of union activity, and the respondent's curtailment of that right is
clearly violative of the Act.” Republic Aviation Corp., above, 802 at fn. 7. Aside from the fact
that Cruz was a committee leader and had engaged in Section 7 activities, Cruz was also 20
engaged in the protected activity of wearing her union button when approached by Downey.
The General Counsel has also met the third and final element of its initial burden by
showing that the Respondent harbored animosity towards the union and Cruz. The third
element, animus, was readily established when the Respondent swiftly reacted to the 25
heightened union activity in February and summarily discharged Cruz in an effort to forestall any
union foothold on the Aliante property.
Discriminatory motive may be established through statements of animus directed to the
employee or about the employee’s protected activities. Austal USA, LLC, 356 NLRB No. 65, 30
slip op. at p. 1 (2010). Downey was opposed to the union representing Aliante employees.
Downey specifically did not like the spike in union activity (Tr. 224). Garcia also believed there
was a spike in union activity in February and wrote on the management electronic bulletin
board that “I’m concerned about the recent (seemingly) spike in union activity…it bums me out.”
Downey replied, “I agree. I am very concerned” (GC Exh. 14). Heath also was upset over the 35
visits of union members at employees’ residences. Heath suggested that the employees call
the police and file criminal charges if they felt harassed. Danzak directed the director of
security to discard any union flyers or handbills in the employee cafeteria. Danzak and Downey
were also upset over the union flyer regarding the health benefits cost incurred by Aliante
employees as compared to employees in union casinos. Both were concerned and met over 40
the union’s request for card check and neutrality agreements.
I also find that Downey harbored animosity towards Cruz. Downey knew that Cruz was
a union committee leader because he saw her title on the union button. However, Downey
denied knowing Cruz, never saw Cruz’s name tag and never identified her to Bethune.14 I find 45

14 In contrast, I credit Cruz’s testimony that she did not know and did not recognize Downey as being
the general manager of Aliante. Cruz unequivocally denied knowing Downey (Tr. 620-622). I have no
plausible reason to question the sincerity of her testimony. No evidence has been proffered that Cruz
harbored animosity against Downey and would have purposely treated him in a discourteous manner.
Continued
JD(NY)–12–15
14
that Downey was not credible on this point. Cruz’s name tag was located at the same height
and level as her union button. Downey was directly across the counter standing in front of
Cruz. I do not credit Downey’s testimony that he never noticed Cruz’s name tag. Heath’s
statement of May 12 affirmatively had Downey identifying Cruz before the video was reviewed
by him. Heath stated that Bethune had received a call from Downey to “…inform him of the 5
poor service her (sic) had received from Maria (Cruz) while escorting a group of Guests to the
Buffet. Terry informed Robert (Bethune) that when he got to the cashier, Maria…” (GC Exh.
21). Further, Rabonza’s statement of May 9 also affirmed that Downey and Bethune knew the
cashier was Cruz before the video was viewed (GC Exh. 34). Rabonza stated
10
On Thursday April 3, 2014, I received a call from Robert Bethune, VP of F&B at
approximately 3pm. He had received a complaint over poor guest service by one of the
Hostess/Cashiers, Lulu. We went to the surveillance room to look at the video coverage.
I reviewed video of the Guest interaction that took place at the cashier stand. As I
watched the tape, it was definitely Lourdes (Lulu) Cruz.15 15
As such, I can only conclude that Downey knew the cashier was Cruz because he
viewed the union button and the name tag on Cruz at the buffet counter and was informed by
Bethune of the cashier’s identity before the video was viewed by Rabonza.
20
Rabonza also testified that in viewing the video, the camera angle was directly
focused on the top of Cruz’s head. Rabonza admitted that even if Cruz was smiling, the
camera would not show that. Rabonza testified that it appeared that Cruz was not smiling,
but then she indicated “…maybe she had a smile on her face” (Tr. 534). Also, it is
reasonable to assume that Cruz had to look up to see if a guest was coming to the cashier 25
counter (Tr. 529-531), which would be consistent with the SOAR principles. Rabonza
stated that Cruz did look up; or “appeared to look up” towards the end of the voucher
transaction (GC Exh. 22 at 2, 34). Rabonza stated she could not verify it was
discourteous conduct (Tr. 535).
30
The inconsistent statements to the occurrence on April 3 are substantial. Downey
testified that from the camera view directly above Cruz’s head, the video only showed his
arms and hands. Rabonza testified that her view of the video showed Downey and his
group approaching Cruz. Rabonza testified that the guests were close enough to Downey
to be observed in the video. Downey testified that his guests were a good 20 feet away. 35
Rabonza said that the video showed Cruz was not smiling nor looking up, but she then
stated that perhaps Cruz was smiling. Downey said that Cruz never smiled and never
looked up. Rabonza testified that Cruz appeared to have looked up and she could not
affirmatively state that Cruz did not smile. The inconsistency of statements as to what
exactly occurred on April 3 between Downey and Cruz could have been resolved by40
preserving the video tape of the interaction, but no management official thought best to
save the video. In my opinion, the failure of the Respondent to preserve the video tape of
the April 3 event is a factor to consider in establishing discriminatory motivation against
Cruz. Based upon the inconsistent statements by management officials, it is a reasonable
inference to conclude that the tape was not preserved because it would have shown to be 45
consistent with Cruz’s testimony.
_________________________
Throughout my observations of Cruz as a witness, I find her soft spoken with her demeanor as being
quiet and demurred.
15 From this statement, it is clear that Rabonza’s role was not to identify the cashier in the video but
rather, to confirm that the cashier was in fact Cruz.
JD(NY)–12–15
15
The timing of the discipline is also extremely suspect and more so when viewed against the
backdrop of the Respondent’s efforts to stave off the union organizing efforts. Upon seeing the
union button worn by Cruz in the afternoon of April 3, the Respondent swiftly suspended her the
following day. Additionally, various high-ranking Aliante officials, including Downey, Danzak, Kelly, 5
Bethune, and Heath, involved themselves in disciplining a low-wage cashier. Although denied in
testimony by Danzak that Downey’s position played no factor in Cruz’s discharge (Tr. 772), I find
that Cruz was clearly made an example because she allegedly offended the general manager of
Aliante. Cruz’s discharge for offending Downey is viewed in contrast to Cruz receiving only a
verbal counseling for also offending a customer on April 1. Cruz was subsequently issued a written 10
warning for the April 1 incident only after Rabonza discovered that Downey was involved in the
April 3 incident. Indeed, Heath testified that she was considering either a written warning or
suspension for Cruz when informed by Rabonza and Bethune about the April 3 incident (but before
she knew the guest involved was Downey). LB&B Associates, Inc. 346 NLRB 1025, 1026 (2005)
(the employer’s adverse action against the employee immediately followed the employer’s 15
knowledge of that employee’s protected activity supports an inference of animus); see also,
Traction Wholesale Center Co. v. NLRB, 216 F.3d 92, 99 (D.Cf. Cir. 2000); Bethlehem Temple
Learning Center, 330 NLRB 1177, 1178 (2000); State Plaza Hotel, 347 NLRB 755, 755-756
(2006); Toll Mfg. Co., 341 NLRB 832, 833 (2004).
20
I also find that the Respondent’s failure to follow its own disciplinary policy and disparate
treatment of Cruz demonstrates animus. Aliante’s disciplinary procedure provides for the right
of management to forego progressive discipline in certain performance-related conduct, such as
“insubordination, physical altercations, rude, discourteous, offensive, abusive, threatening,
intimidating, unprofessional conduct or behavior towards a guest, team member or supervisor.” 25
Heath testified that Cruz was discharged for being discourteous on 3 separate occasions.
Cruz’s first offense occurred in May 2013. Rabonza maintains that there were numerous other
incidents between May 2013 and April 2014 regarding Cruz’s discourteous behavior towards
customers. Rabonza testified that Cruz “did not get along with a lot of the team member” (Tr.
491). However, Rabonza could not credibly state the number of complaints and no one in30
management documented such complaints against Cruz (Tr. 728). The record reflects merely 4
occasions that criticized Cruz’s conduct with customers and other employees that were reflected
in the employee log but not reduced to performance documents (GC Exh. 32B, 33B). Heath
testified that Cruz did not receive a performance evaluation during the May 2013-April 2014 time
frame (Tr. 302). Interesting, Rabonza inconsistently testified that Cruz’s job performance had 35
consistently improved, including for this same time period (Tr. 707).
According to the Respondent’s discipline policy, Cruz could have been immediately
discharged following her discourteous conduct in May 2013, but Cruz was given only a verbal
warning. The next infraction occurred on April 2014, almost a full year subsequent to the first 40
incident.16 On April 1, Cruz was allegedly discourteous to a disabled guest. While the

16 There was contradictory testimony as to how far back discipline would be considered in issuing
new discipline. Cruz believed that it was for only 6 months, consistent with the Station handbook policy.
Heath testified that prior discipline would be considered up to 1-year. Danzak indicated that prior
discipline can always be considered but subsequently stated that the look-back was for 1-year (Tr. 745,
747). Heath testified that revisions to the Aliante handbook taken from the Station handbook (such as
time and attendance) would be noticed and provided in writing to the employees (Tr. 304). The change
from a 6 month “look-back” to a 1-year “look back” was never reduced to writing and provided to the
Aliante employees. As such, I credit Cruz’s testimony that the look-back period is for 6 months rather
than 1-year.
JD(NY)–12–15
16
circumstances surrounding the April 1 incident were not relevant to this proceeding, the manner
in which Cruz was treated becomes amply clear. Consistent with the May 2013 incident, Cruz
was issued a verbal warning by Culverson for discourteous conduct towards a customer.
Culverson, as Cruz’ supervisor, determined the verbal counseling as sufficient for the infraction.
The discipline of Cruz with a verbal counseling for the April 1 infraction should have ended the 5
matter. However, her discipline was changed by Rabonza to a written warning upon learning of
Cruz’s interaction with Downey on April 3. It is my reasonable belief that the change to a written
warning was done in order to booster the suspension pending investigation and Cruz’s eventual
discharge.
10
Turning to the third and final discipline for the incident on April 3, the record is replete
with statements from managers to justify their action to discharge Cruz. Numerous statements
were made by Rabonza, Culverson and Heath that were changed and revised during and after
the disciplinary investigation. Heath testified that the changes were merely language revisions
(Tr. 323-325), but a close review of the statements show a deliberate effort to shore up the 15
justification for discharging Cruz. Rabonza went through four iterations of her actions taken on
April 3. From April 10 through May 9, Rabonza’s statement changed from a simple paragraph
to a more comprehensive narrative of the April 3 event17 (GC Exh. 22; 34). Similarly, Heath
requested that Culverson rewrite her statement at least twice because Heath was not satisfied
with Culverson’s narrative18 (GC Exh. 22). The rewriting of the statements was not an effort to 20
revise mere language as testified by Heath. In actuality, the statements serve to show that the
same responsible officials were motivated to ensure and to justify the discharge of Cruz.
I find that discriminatory motive attributed to the Respondent was shown by the
totality of the evidence that the employer’s asserted reason for the employee’s discipline25
was pretextual, such as disparate treatment of the employee, shifting explanations
provided for the adverse action, failure to investigate whether the employee engaged in
the alleged misconduct, or providing a nondiscriminatory explanation that defies logic or is
clearly baseless. Lucky Cab Co., 360 NLRB No. 43 (2014); ManorCare Health Services –
Easton, 356 NLRB No. 39, slip op. at 3 (2010); Greco & Haines, Inc., 306 NLRB 634, 634 30
(1992); Wright Line, 251 NLRB at 1088 fn.12, citing Shattuck Denn Mining Co. v. NLRB,
362 F.2d 466, 470 (9th Cir. 1966); Cincinnati Truck Center, 315 NLRB 554, 556–557
(1994), enfd. sub nom. NLRB v. Transmart, Inc., 117 F.3d 1421 (6th Cir. 1997)).
Considered together, the foregoing circumstances strongly support an inference of 35
unlawful motive. See, e.g., Wright Line, above at 1090–1091, 1097; and Carolina Steel Corp.,
296 NLRB 1279, 1283–1284 (1989). Also, see Healthcare Employees Local 399 v. NLRB, 463
F.3d 909, 919 (9th Cir. 2006) (“circumstantial evidence is sufficient to establish anti-union
motive.”); and Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929, 935–939 (D.C. Cir. 2011) (“most
evidence of motive is circumstantial”).40

17 A significant aspect of Rabonza’s statement was the incorrect date of when the interaction
between Cruz and Downey occurred. It was not until her May 9 statement, that Rabonza correctly stated
that the incident occurred on April 3 (and not April 4).
18 For example, Heath instructed Culverson to state “you stopped her (Cruz) after getting the main
part of the story instead of stating that Culverson “interrupted” Cruz from explaining her side of the story
on the April 1 incident. This is more than merely language change on the part of Heath and Culverson. It
is my belief that it boosters the perception that management was tolerant with Cruz to allow her the
opportunity to explain instead of being impatient and interrupting her side of the story.
JD(NY)–12–15
17
c. The Respondent failed to meet its Rebuttal Burden
The burden now shifts to the employer to demonstrate that it would have taken the same
action even in the absence of the employee’s union activity. Wright Line, above at 1089; ADB
Utility Contractors, 353 NLRB 166 (2008). Given the strong evidence of discriminatory motive, 5
the Respondent’s rebuttal is substantial. Bally’s Park Place, above; Corliss Resources, Inc.,
362 NLRB No. 21, JD slip op. at 14 (2015).
I find that the Respondent has not met its rebuttal burden of demonstrating that it would
have discharged the alleged discriminatee even in the absence of her protected union activities. 10
The Respondent argues that the SOAR principles were violated by Cruz when she failed to
greet Downey within 10 feet and did not smile when he was within 5 feet of Cruz. As explained
above, it is not clear whether Cruz had violated the SOAR principles. Cruz testified that she
looked up, greeted Downey (and his guests) and said words to the effect, “Hello, how are you?”
Rabonza testified that she could not discern whether or not Cruz was smiling. Rabonza stated 15
that perhaps Cruz was smiling. Rabonza also admitted that it appeared that Cruz looked up
when approached by Downey.
The Respondent further argues that the progressive discipline procedures were followed
and would have taken the same action regardless of Cruz’s union activities. Upon examination 20
of the full record, I am also not persuaded that the Respondent so strictly adheres to the
progressive discipline procedure to justify the discharge of Cruz. I find that Cruz was treated
harsher than other employees and the same discipline would not have occurred absent her
union activity. First, as noted above, the progressive discipline policy was not followed by the
Respondent. I find it suspicious that the April 1discourteous infraction was elevated from verbal 25
counseling to a written warning. No plausible explanation was provided for the change.
Second, under the Respondent’s progressive discipline policy, Cruz should have either received
a final warning or suspension. It is noteworthy that Heath testified that she was contemplating
either a final written warning or suspension when informed of the April 3 incident with Cruz but
before realizing that Downey was the offended guest. Third, Respondent was not necessarily 30
required to discharge an employee found to be discourteous to a guest or another employee.
This was made clear when Cruz was not discharged for the May 2013 or April 1 incidents. The
Respondent discharged Cruz only after Downey was subjected to Cruz’s alleged discourtesy.
Moreover, the evidence of record shows that other employees were more leniently 35
treated under similar circumstances. The Respondent did not terminate other employees who
had similar or more severe incidents relating to guest service. For example, Chavona Bass, a
host/cashier at the buffet insisted that a guest needed his pin number to get a buffet discount
ticket and was told to go to customer service after the guest had waited on the buffet line for 20
minutes. Bass was documented with a written warning for making an offensive gesture by 40
throwing her hands in the air and stating “there is nothing I can do with it.” Bass was not
discharge for her discourteous behavior towards a guest (GC Exh. 36C). Another example
showed employee Jose Tirado working as a cook at the buffet, failed to comply with a guest
request for an egg omelet and in a loud voice rudely stated “I’m not going to do it because I’m
busy.” Tirado was disciplined with a written warning and was not discharged (GC Exh. 36D). 45
Some employees were disciplined with final warnings for yelling at employees and for other
violations in lieu of termination (GC Exhs. 36K, 36L, and 36N). Cruz never received a final
warning before her discharge. The record also shows that some employees were terminated
only after receiving a final warning. For example, Jeffrey Alexander was not discharged until
after receiving three final written warnings (GC Exh. 36H). An employer’s failure to follow its 50
own practice of progressive discipline demonstrates animus. Santa Fe Tortilla Co., 360 NLRB
No. 130 at slip op. 3 (2014) (citing 2 Sisters Food Group, Inc., 357 NLRB No. 168 (2011)).
JD(NY)–12–15
18
In sum, the record indicates that the Respondent makes disciplinary and discharge
decisions on a highly subjective basis and inconsistent with its own progressive discipline policy.
The Respondent failed to satisfy its burden that it would have discharged the employee even
absent her union activities. Desert Toyota, 346 NLRB 118, 119 (2005).5
d. The General Counsel failed to establish
a violation of Section 8(a)(1) of the Act
The complaint states that during the April 4 meeting between Cruz and Rabonza, it is 10
alleged that Rabonza told Cruz “do me a favor, go home and don’t tell anybody, because
nobody knows anything about it” after Cruz was informed of her suspension. The counsel for
the General Counsel alleges that Respondent violated Section 8(a)(1) of the Act by
promulgating a rule that employee cannot discuss their discipline, citing Caesar’s Palace, 336
NLRB 271 (2001).19 See, GC Br. at 22. 15
I find that the Respondent did not violation Section 8(a)(1) of the Act. The
record shows, and I find, that Cruz was never instructed or given a directive not to discuss her
discipline. Cruz testified that Rabonza told her “do me a favor…” In my opinion, an employee
would reasonably believe this to be a suggestion by a supervisor and not a directive. In 20
addition, the statement by Rabonza did not specify a consequence if Cruz decided to discuss
her discipline with others. The General Counsel concedes this point.
I do not find that the statement made by Rabonza would chill Cruz’s Section 7
rights to discuss her discipline or reasonably construed by an employee to be coercive. I find it 25
significant that Cruz never testified that she thought the suggestion given by Rabonza was
offensive, unreasonable, and coercive or tended to chill her right to discuss the discipline with
others (Tr. 614). Further, as pointed out by the Respondent’s closing brief, the suggestion from
Rabonza to Cruz to “do me a favor…” is not a promulgation of a rule. The suggestion only
applied to Cruz and no other employees (R Br. at 33, citing St. Mary’s Hospital of Blue Springs, 30
346 NLRB 776, 777(2006). There is no evidence that at any time before or after the suggestion
either Cruz or any other employee has been prohibited from engaging in permissible union
activity.
Accordingly, I find that the Respondent did not violate Section 8(a)(1) of the Act by 35
promulgating a rule prohibiting employees from discussing their discipline with other employees.
This allegation in the complaint is dismissed in it’s entirely.
CONCLUSIONS OF LAW
40
1. At all material times, the Respondent, Aliante Gaming, LLC d/b/a Aliante Casino and
Hotel, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.

19 The situation here is clearly distinguishable from Caesar’s Palace, above. In Caesar’s, the
employees were given strict instructions not to discuss ongoing investigations on employee misconduct
with the threat of discipline, including termination. Here, Cruz was never given instructions not to discuss
her discipline nor was there a threat of discipline of any kind.
JD(NY)–12–15
19
2. The Union, Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local
226 and Bartenders union Local 165 Affiliated with UNITE HERE, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the Act on April 4, 2014 by 5
discriminatorily issuing a suspension to Maria Lourdes Cruz Sanchez and subsequently
discriminatorily discharge Cruz on April 8 because she was a union officer and engaged in
union activity.
4. The Respondent did not otherwise violate Section 8(a)(1) of the Act promulgating a 10
prohibitive rule.
5. The unfair labor practices described above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
15
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, the Respondent having discriminatorily issued a 20
suspension and termination to Cruz, must make her whole for any loss of earnings and other
benefits suffered as a result of the Respondent’s unlawful actions against her. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). 25
In accordance with the decision in Don Chavas, LLC, d/b/a Tortillas Don Chavas, 361
NLRB No. 10 (2014), my recommended order requires Respondent to compensate Cruz for the
adverse tax consequences, if any, of receiving a lump-sum backpay award and to file a report
with the Social Security Administration allocating the backpay award to the appropriate calendar 30
quarter(s) for Cruz.
My recommended order requires the Respondent to expunge from its files any and all
references to the unlawful discipline of the aforementioned employee and to notify her in writing
that this has been done and that the unlawful discharge will not be used against her in any way.35
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended20
ORDER40
The Respondent, Aliante Gaming, LLC d/b/a Aliante Casino and Hotel, its officers,
agents, successors, and assigns, shall
1. Cease and desist from 45

20 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(NY)–12–15
20
(a) Discriminatorily disciplining employees because of their union activities or to
discourage employees from engaging in union or other protected concerted activities.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.5
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Maria Lourdes Cruz Sanchez whole for any loss of earnings and other benefits
suffered as a result of the unlawful suspension and discharge, as set forth in the remedy section 10
of this decision.
(b) Compensate Cruz for the adverse tax consequences, if any, of receiving a lump-sum
backpay award, and file a report with the Social Security Administration allocating the backpay
award to the appropriate calendar quarter(s).15
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discipline of Cruz relating to the April 3 interaction with Terrance
Downey, and within 3 days thereafter notify her in writing that this has been done and that the
discipline will not be used against her in any way.20
(d) Immediately offer Cruz full reinstatement to her former position or if that position no
longer exists, to a substantially equivalent position, without prejudice to her seniority or any
other rights and/or privileges she previously enjoyed.
25
(e) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
(f) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the 30
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay. Absent exceptions as provided
by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board 35
and due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its existing properties in Nevada
area copies of the attached notice marked “Appendix.”21 Copies of the notice, on forms provided
by the Regional Director for Region 28, after being signed by the Respondent’s authorized 40
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the 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 45
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered

21 If this Order is enforced by a judgment of the 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.”
JD(NY)–12–15
21
by any other material. In the event that, during the pendency of these proceedings, 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 employees employed by the Respondent at any time since April 3, 2014.
5
(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. March 17, 201510
_______________________________________
Kenneth W. Chu15
Administrative Law Judge
JD(NY)–12–15
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 the National Labor Relations Act
and has ordered us to post and abide by 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 benefits and protection
Choose not to engage in any of these protected activities
WE WILL NOT discriminatorily discipline you because of your union activities or to discourage
you from engaging in union or other protected concerted activities.
WE WILL NOT discipline you because of your activities with or support for Local Joint Executive
Board of Las Vegas, Culinary Workers Union, Local 226 and Bartenders Union Local 165
affiliated with UNITE HERE.
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 of the Board’s Order, remove any reference to the unlawful April 4,
2014 suspension and the unlawful April 8, 2014 discharge issued to Maria Lourdes Cruz
Sanchez and we will notify Cruz within 3 days thereafter that this was done and that the
discipline will not be used against her in any way.
WE WILL offer Cruz immediate and full reinstatement to her former position, or if that position
no longer exists, to a substantially equivalent position, without prejudice to her seniority or any
other rights and/or privileges she previously enjoyed.
WE WILL make CRUZ whole for any lost earnings and benefits resulting from the unlawful
suspension and discharge, less any net interim earnings, plus interest.
WE WILL compensate Cruz for the adverse tax consequences, if any, of receiving a lump-sum
backpay award, and file a report with the Social Security Administration allocating the backpay
award to the appropriate calendar quarter(s).
Aliante Gaming LLC d/b/a Aliante Casino and
Hotel
(Employer)
Dated By
(Representative) (Title)
JD(NY)–12–15
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1400
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-126480 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 602-640-2146.