Ark Las Vegas Resaurant Corp.

National Labor Relations Board - Board Decisions

Sep 25, 2001

335 N.L.R.B. 1284 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
Ark Las Vegas Restaurant Corporation and Local
Joint Executive Board of Las Vegas, Culinary
Workers Union, Local 226 and Bartenders Un-
ion, Local 165, affiliated with Hotel Employees
and Restaurant Workers International Union,
AFL–CIO. Cases 28–CA–14228, 28–CA–14288–
2, 28–CA–14288–4, 28–CA–14288–6, 28–CA–
14288–7, 28–CA–14376, 28–CA–14463, and 28–
CA–14543
September 25, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On September 21, 1998, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel and the Charging Party each filed
cross-exceptions and supporting briefs. The General
Counsel filed an answering brief to the Respondent’s
exceptions. The Respondent filed an answering brief to
the cross-exceptions and a reply brief to the General
Counsel’s answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order3 as modified be-
low.

1 There were no exceptions to the judge’s recommendation to dis-
miss the complaint allegations that the Respondent unlawfully threat-
ened, disciplined and/or discharged employees Michael Thomasson,
Sandra Lopez, Jesus Araiza, Roger Trude, Maria Guadalupe Carillo,
Bernardino Hernandez Cruz, and David Hernandez. There were also
no exceptions to the judge’s recommendation to dismiss the complaint
allegation that the Respondent maintained a rule unlawfully prohibiting
nonemployees from distributing or soliciting employees on Ark prem-
ises. Accordingly, we find it unnecessary to pass on the judge’s appli-
cation of Nicks’, 326 NLRB 997 (1998), remanded in pertinent part sub
nom. Food & Commercial Workers Local 400 v. NLRB, 222 F.3d 1030
(D.C. Cir. 2000), supplemental decision on remand 332 NLRB 1424
(2000).
In adopting the judge’s finding that the Respondent’s prohibition on
wearing union buttons or pins on uniforms and work clothes violated
Sec. 8(a)(1), we agree with the judge that the Respondent’s status as a
retail employer does not, standing alone, constitute a special circum-
stance justifying the proscription of union insignia. See United Parcel
Service, 312 NLRB 596 (1993), enfd. denied 41 F.3d 1068 (6th Cir.
1994); Nordstrom, Inc., 264 NLRB 698 (1982). As the judge found,
the Respondent never told employees that the size or color of the but-
tons were the problem and at least half of the employees who wear
buttons do so outside the direct presence of the public.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) by discharging employee Jesus Serna, we do not rely on the
judge’s finding that Serna’s supervisor, Valerio Rodriguez, did not
speak to Serna about his poor job performance. The evidence estab-
lishes that on two occasions Rodriguez spoke with him concerning his
poor work. In adopting the judge’s finding that the Respondent vio-
lated Sec. 8(a)(3) by discharging employee Sandra Jordan, we do not
rely on the judge’s finding that Jordan had not been counseled. The
record shows that Jordan was in fact counseled about her work per-
formance.
1. The judge found that the Respondent violated Sec-
tion 8(a)(3) of the Act by issuing employee Ron Isomura
a written warning for leaving breaded chicken tenders
unrefrigerated overnight. Characterizing the incident as
relatively harmless, the judge found that the Respondent
did not attempt to verify Isomura’s explanation that lead
prep Ricky Takaya gave him approval to leave the raw
chicken out at the end of his shift. Hence, the judge con-
cluded that the warning was motivated by Isomura’s pro-
tected activities.4 The Respondent excepts, arguing that
Isomura’s explanation was investigated and that his mis-
handling of food products was a health code violation,
which fully justified the warning.
We find merit in the Respondent’s exceptions. It is
undisputed that Isomura left raw chicken unrefrigerated
and that the mishandling of the chicken violated the local
health code. We further find, contrary to the judge, that
Isomura’s explanation was investigated prior to the issu-
ance of the discipline. Head Chef Robert DeFazio testi-
fied that he spoke with Takaya, and that Takaya denied
giving Isomura permission.5 Accordingly, we find that
the Respondent has established that it would have issued
the warning even in the absence of Isomura’s protected
activity and therefore we dismiss this complaint allega-
tion.

Finally, in adopting the judge’s finding that the Respondent violated
Sec. 8(a)(3) by laying off employee David Schafer in April 1997, we
find it unnecessary to rely on subsequent events when he sought reem-
ployment with the Respondent in August 1997.
2 In adopting the judge’s recommendation to dismiss the complaint
allegations that the Respondent’s confidentiality rules and rules regulat-
ing employee conduct contained in its employee handbook violated
Sec. 8(a)(1) of the Act, we agree with the judge that the rules at issue
here are largely identical to standards of conduct found lawful in La-
fayette Park Hotel, 326 NLRB 824 (1998).
Member Liebman dissented in Lafayette Park, and Member Walsh,
who was not a Member of the Board when Lafayette Park was decided,
agrees with her dissent. In the absence of a current Board majority to
overrule Lafayette Park, Members Liebman and Walsh agree with
Member Truesdale that the judge correctly applied that precedent here
in recommending that these complaint allegations be dismissed.
3 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co, 335 NLRB 142
(2001).
4 On March 12, 1997, Isomura was observed distributing union lit-
erature in the employee locker room. Supervisor Bill Conn interceded,
removed Isomura, and discharged him. Although the discharge was
later rescinded, the judge found, and we agree, that the Respondent’s
treatment of Isomura violated Sec. 8(a)(3) and (1).
5 Takaya did not testify at the hearing.
335 NLRB No. 97
ARK LAS VEGAS RESTAURANT CORP. 1285
2. The judge found that the Respondent violated Sec-
tion 8(a)(1) when its manager, Christine Flores, told em-
ployee Yvonne Spears that the Respondent could not
afford to pay the wage rates set forth in some union fly-
ers. Citing NLRB v. Gissel Packing Co.,6 the judge con-
cluded that Flores’ statement was not a permissible “fact-
based” prediction because she did not state her reasoning
to Spears and that, without such an objective explanation,
the statement became an unlawful threat.
Contrary to the judge, we find that Flores’ comment
was simply an observation that the Respondent could not
afford to pay the Union’s wage rate and was not a threat
of reprisal against employees for their union activities.
Hampton Inn, 309 NLRB 942 (1992). Accordingly, we
shall dismiss this allegation of the complaint.
3. The Charging Party and the General Counsel except
to the judge’s failure to order the Respondent to rescind
certain handbook rules that he found unlawful: i.e., rules
prohibiting employees from wearing union buttons on
their uniforms or other work clothing, barring employees
from the premises more than 30 minutes before their
shift and requiring them to leave 30 minutes after their
shift, and barring employees from distributing union lit-
erature and soliciting union membership in the nonwork
area of the employee dining room. The General Counsel
and Charging Party also except to the judge’s failure to
order that the Respondent publicize the recission in the
same fashion that the unlawful rules were publicized.
We find merit in these exceptions7 and shall modify the
recommended Order accordingly.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ark Las
Vegas Restaurant Corporation, Las Vegas, Nevada, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Delete paragraph 1(h) and reletter the subsequent
paragraphs.
2. Insert the following as paragraph 2(a) and reletter
the subsequent paragraphs.
“(a) Rescind its rules contained in its employee hand-
book prohibiting employees from wearing union buttons
or pins on their uniforms or other work clothing, barring
employees from the premises more than 30 minutes be-
fore their shift and requiring them to leave within 30
minutes of the time their shifts end, and barring employ-
ees from distributing union literature and soliciting union
membership in the nonwork area of the employee dining

6 395 U.S. 575, 617–619 (1969).
7 Marriott Corp., 313 NLRB 897 (1994).
room; and notify employees that the rules have been re-
scinded to the same extent that the unlawful rules were
publicized.”
3. Substitute the following for paragraph 2 (d).
“(d) 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, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
4. Substitute the attached notice for that of the admin-
istrative law judge.
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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT maintain or enforce written or unwrit-
ten rules prohibiting employees from wearing union but-
tons or pins on their uniforms or other work clothing.
WE WILL NOT direct employees to remove union
buttons from their uniforms.
WE WILL NOT threaten to discharge or discipline
employees for insisting upon their right to wear union
buttons or pins on their uniforms.
WE WILL NOT physically remove union buttons from
the uniforms of employees.
WE WILL NOT tell employees that they must comply
with an illegal rule barring them from distributing union
literature or soliciting union membership in the employee
dining room.
WE WILL NOT tell employees that they must comply
with an illegal rule barring them from arriving on the
premises more than 30 minutes before their shift begins
and requiring them to leave within 30 minutes of the time
their shift ends.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1286
WE WILL NOT intimidate employees from engaging
in union activity by putting them on the spot with ques-
tions about the Union we know they cannot answer.
WE WILL NOT tell employees they cannot speak to
their coworkers, whether in person, by telephone, or
whether on or off duty.
WE WILL NOT maintain any rule which bars em-
ployees from our premises 30 minutes before their shift
or requires them to leave within 30 minutes after their
shift.
WE WILL NOT apply our no-solicitation, no-
distribution rule to employee union organizers by defin-
ing nonworking areas such as the employee dining room
as a working area, thereby preventing employees from
exercising their right to lawfully distribute union litera-
ture and solicit union membership in nonwork areas.
WE WILL NOT discharge or discipline employees be-
cause of their sympathies, desires, or activities on behalf
of Local Joint Executive Board of Las Vegas, Culinary
Workers Union, Local 226 and Bartenders Union, Local
165, affiliated with Hotel Employees and Restaurant
Workers International Union, AFL–CIO.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind our unlawful rules contained in the
employee handbook prohibiting employees from wearing
union buttons or pins on their uniforms or other work
clothing, barring employees from the premises more than
30 minutes before their shift and requiring them to leave
within 30 minutes of the time their shifts end, and bar-
ring employees from distributing union literature and
soliciting union membership in the nonwork area of the
employee dining room; and WE WILL notify employees
that the rules have been rescinded to the same extent that
the unlawful rules were publicized.
WE WILL, within 14 days of the Board’s Order, offer
Ron Isomura, Vertis Manuel, Jorge Aguilar, David
Schafer, Sandra Jordan, and Jesus Serna full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to a substantially equivalent position, without prejudice
to their seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Ron Isomura, Vertis Manuel, Jorge
Aguillar, David Schafer, Sandra Jordan, Jesus Serna,
Saam Naaghdi, and Clara Montano whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, plus interest.
WE WILL, within14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges or discipline, whichever is applicable, lev-
ied upon the employees named above and, WE WILL,
within 3 days thereafter, notify them in writing that we
have done so and that the discharge or discipline will not
be used against them in any way.

ARK LAS VEGAS RESTAURANT
CORPORATION

Scott B. Feldman and Nathan Albright, for the General
Counsel.
Michael A. Taylor and Celeste M. Wasielewski (Pantaleo,
Lipkin and Moss), of Washington, D.C., for the
Respondent.
Kevin Kline, Organizer, Culinary and Bartenders Union, Las
Vegas, Nevada, for the Charging Party; Brief by Michael T.
Anderson (Davis, Cowell and Bowe), of San Francisco,
California.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried in Las Vegas, Nevada, on 7 hearing days be-
tween October 6 and October 15, 1997.1 The original charges
were filed on March 12 by Local Joint Executive Board of Las
Vegas, Culinary Workers Union, Local 226 and Bartenders
Union, Local 165, affiliated with Hotel Workers and Restaurant
Employees International Union, AFL–CIO (the Union); those
charges were later amended and additional charges were filed.
The fourth consolidated complaint was issued by the Regional
Director for Region 28 on September 17, and asserts that Re-
spondent, Ark Las Vegas Restaurant Corporation, has violated
Section 8(a)(1) and (3) of the National Labor Relations Act (the
Act) in a variety of ways. Respondent denies the commission
of any unfair labor practices.
Issues
The issues raised by the complaint fall within three catego-
ries: company rules alleged to interfere with Section 7 rights;
the application, rescission, and sub rosa return of an antibutton
rule; and a variety of discharges, suspensions, and warnings
levied upon union activists.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Nevada corporation, operates the restaurants
located in the New York-New York Hotel and Casino in Las
Vegas, Nevada.2 Although it did not open for business until
January 3, its business volume is so large that it readily admits
that its annual gross volume exceeds $500,000 and it annually
purchases goods and materials directly from sources outside the
State of Nevada in excess of $50,000. It therefore admits, and I

1 All dates are 1997 unless otherwise noted.
2 Ark Las Vegas is a subsidiary of a similarly named parent corpora-
tion which, through subsidiaries, operates restaurants on the East Coast,
including New York City and the Washington, D.C. area.
ARK LAS VEGAS RESTAURANT CORP. 1287
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. It also admits
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The New York-New York Hotel and Casino (NY-NY) is a
large theme hotel and gaming facility located on South Las
Vegas Boulevard. It opened for business on January 3. Unlike
the vast majority of such businesses it does not operate the
restaurants and food service outlets in the building. Instead, it
has contracted with Respondent to run the them. Respondent
asserts that it is a tenant of certain areas of the property, based
upon the written agreements which it has with NY-NY. What-
ever the “lease” may say, it is better described as the food ser-
vice concessionaire for NY-NY.
In the performance of that role Respondent runs the follow-
ing restaurants within the hotel: America (which seats about
500 customers); Gallagher’s (a steakhouse); Gonzalez y Gon-
zalez (GYG) a Mexican restaurant; The Village Streets, a food
court consisting of ten fast food outlets; and the Employee Din-
ing Room (EDR) (350 seats; open only to employees of NY-
NY, Respondent and the Feld Entertainment theater company
employees). In addition, it provides room service to hotel
guests and banquet catering within the hotel. In support of this
operation it has kitchens for each restaurant and the EDR, plus
a separate production kitchen which prepares certain food items
common to the restaurants, and a stewards department which
performs the necessary dishwashing, cleanup, and general jani-
torial functions. It is a very big food service operation, employ-
ing about 900 persons on a 7-day-per week, 24-hour–per-day
basis.
Respondent’s president is an individual named Michael
Weinstein. He resides in New York City. The daily manage-
ment of Ark Las Vegas is the responsibility of Paul Gordon, a
senior corporate vice president. Each restaurant has a general
manager who, with his/her assistant general manager, has over-
all responsibility for each restaurant. On the kitchen side, Ark
has an executive chef, Damien McEvoy. He has an assistant,
Paul Savoy. Working for them are the chefs and sous (assis-
tant) chefs at each restaurant and for each shift. In addition,
there is a chief steward, Valerio Rodriguez, who heads the
cleanup crews and dishwashers. All of the persons holding
these jobs are supervisors within the meaning of Section 2(11)
of the Act.
Respondent began hiring rank-and-file employees in the late
Fall of 1996, having established a hiring office on Harmon
Avenue somewhat off Las Vegas Boulevard. As early as No-
vember it had created an employee handbook containing,
among other things, certain rules of behavior for employees.
Many of the rules contained therein are under scrutiny here.
In December 1996, the Union actually began its organizing
drive, attempting to sign up employees who had been hired at
the Harmon Avenue office. It is not clear to what duties these
persons were assigned prior to the hotel opening on January 3,
but obviously large numbers were hired and a significant
amount of orientation and training was underway in the weeks
before the opening. Gordon and other management officials
were aware of the Union’s effort. Indeed, it would have been
difficult to ignore the Union’s presence as its effort utilized
bullhorns and video cameras. At one point in December union
organizers entered the Harmon office demanding to see
Gordon, who wasn’t there. When that failed they called
Weinstein at his home in New York City by cellular telephone,
insisting that he “recognize the card count,” a demand for rec-
ognition. Weinstein was occupied with a holiday family matter
at the time and declined to deal with the Union in such a fash-
ion.
This early effort to obtain recognition did not succeed and
for a time the Union allowed the noise to subside. However, it
was busy and about March 11 a union organizing committee
consisting of about 30 employees sent Gordon a letter announc-
ing their intention to organize Respondent’s employees. The
signatures on the letter clearly advised Respondent of the iden-
tities of the committee members. At the same time, committee
members, as well as other employees, began wearing union
buttons on their working clothes. There were at least two types
of buttons. One said “Local 226 Culinary Workers
COMMITTEE LEADER” and the other said “UNION
SOLIDARITY Culinary Local 226 Las Vegas.” They incorpo-
rated small figures of persons wearing uniforms typical of food
service employees. Each button is about 1-3/4 inches in diame-
ter. Union literature also made an appearance.
It is the arrival of the letter, the advent of the buttons, and the
appearance of union literature which triggered many of the
events which followed. The buttons immediately came into
conflict with the rule prohibiting them. For that reason it is
appropriate to begin with the button rule and to concern our-
selves with the other rules as well.
B. The Button Rule: The Buttons and Employees Naghdi,
Montaño, Kiddy, and Jordan
The button rule, found on page 15 of the handbook, reads as
follows:

Buttons, badges, or emblems may not be worn in public
areas, except for name badges or buttons issued by the
Company. No unauthorized stickers, pictures, buttons or
other graphic forms may be placed on your name tag or
badge.

Saam Naghdi is a waiter at GYG. On March 11 or 12 he ap-
peared for work wearing the committee leader button. He was
also a signer of the March 11 letter. The general manager of
GYG at the time was Christina Flores. Thinking it might be a
button from a concert, she looked at it to determine what it said.
When Naghdi told her, she replied, “I don't think you can wear
that here.” He explained that he had the legal right to do so, but
she said, “I don't think they would like it.” She walked away,
consulted with the human resources department, and returned 5
minutes later saying it was not part of the uniform. He gave her
some union literature which he believed allowed him to wear it.
She took it and again consulted with the HR department.
When she came back she said that the paper did not refer to
buttons and if he did not remove the button he would have to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1288
clock out. Naghdi refused to remove it and she told him to
transfer his tables to another server and to clock out.
Shortly thereafter, she issued him a “counseling review”
form asserting he was in violation of the uniform policy and
sent him home. He asked her to write that it was a union pin
which he had been wearing, but she declined to include a de-
scription of the pin, saying only that he was “wearing a pin.”
He refused to sign the form.
The next day, Flores told Naghdi that the counseling had
been voided. It appears that the issue had been bucked to Sen-
ior Vice President Gordon who discussed the matter with Re-
spondent’s attorneys. After hearing their advice, he had de-
cided to void the discipline. Naghdi says that no one ever told
him the discipline was “wrong,” but Flores did tell him (though
it was not shown to him) that the counseling form had been
voided. In addition Flores told him he would be paid for the
lost shift. It appears that he was.
Shortly thereafter, Respondent revoked the rule from its
manual by placing a notice in each pay envelope advising of the
revocation and including a substitute page for the handbook.
The notice concluded with a sentence assuring employees that
it “will not in any other manner interfere with the rights you
and other employees have which are protected by the National
Labor Relations Act.” As the handbook itself is available only
in English, the notice likewise was only in English. Thus, those
employees who are literate only in Spanish were not notified of
the change.
Executive Chef McEvoy says after the Naghdi incident he
told the supervisory staff that it was permissible for employees
to wear the buttons, but that he did not instruct the chefs to
affirmatively tell the employees that they could do so. Yet
whatever message he supposedly tried to express did not get
very far.
There is employee testimony, denied in some respects, that
the EDR chefs and sous chefs gave button wearers a tough time
in March. Clara Montaño, a food prep employee who worked
the buffet table, says that EDR head chef Juan Gallegos told
her: “Since I was wearing that button he recommended me to
take it off. He told me that—that if the owners ever saw me
wearing one of these buttons I would be terminated. That was
throughout several conversations we held throughout the day.”
Gallegos did not testify.
She also says that EDR sous chef Don Meza, on March 16 in
the presence of chef John Miller, “told me to take off the but-
ton, because it was banned . . . at work, we couldn’t wear them,
it was banned. By wear—he said, also, that by wearing that
button I could probably cause some discomfort among co-
workers.”
Similarly, EDR line cook Randy Kiddy testified that Meza
yanked his committee button off:

Q. Was anyone else present, in this conversation?
A. Not that I’m aware of.
Q. And what did Mr. Meza say to you?
A. I came in. I said, you know, “Good morning.” And
he looked down, and he saw the button, he said “That’s
not good.” And I said, “[ ] how[?]”. . . [H]e said “That’s
gonna cause you problems.” And I said, “How is that
gonna cause me problems?” He said “Because we don’t—
or they don’t like that kind of thing around here.”
Q. Okay. Anything else happen?
A. And I told him, I said, “Well, I have the right to
wear it. I know I can wear it every day, you know.” And
he reached out and grabbed it, and pulled it off my chest
and threw it on the floor, and walked away laughing.
. . . .
Q. Well, what did you do after Mr. Meza took off
your union button?
A. I picked it up and just went back to work, put it
back on.

Meza did not testify and Montaño’s and Kiddy’s testimony is
unrebutted.
As late as May 27, according to Sandra Jordan, a bus person
in America, assistant general manager Bobbie Rihel, demanded
that she remove her “solidarity” button and when she refused,
was taken to the office and discharged. Rihel admits discharg-
ing Jordan that day, but asserts it was simply due to cumulative
shortcomings resulting in Jordan failing to pass her 90-day
introductory period. She specifically denies telling Jordan to
remove the button.
I resolve the credibility conflict in detail, infra, but do credit
Jordan on this point.
The principal concern here is how Respondent operated after
rescinding the rule against employees wearing buttons. Rather
clearly, the Section 7 right to wear buttons, supposedly recog-
nized in the rescission announcement, was not honored.
Analytically, the rule itself is unlawful on its face. In Malta
Construction Co., 276 NLRB 1494 (1985), enfd. 806 F.2d 1009
(11th Cir. 1986), the Board observed that the Supreme Court in
Republic Aviation Corp., 324 U.S. 793 (1945), approved the
Board’s holding that employees had the right to wear union
insignia and stated “The right of employees to wear union in-
signia at work has long been recognized as reasonable and le-
gitimate form of union activity.” 324 U.S. at 802 fn. 7. Malta
then observed that in Kendall Co., 267 NLRB 963 at 965
(1983), the Board had said “a rule that curtails that employee
right [to wear union insignia] is presumably invalid unless spe-
cial circumstances exist which make the rule necessary to main-
tain production or discipline, or to ensure safety.” Respondent
does not contend that there is any special circumstance here,
except for a general claim that the rule was consistent with
Board holdings that the rule is subject to some limitation in
retail industries. Indeed, it revoked the rule, although there is
testimony that it would reinstate it if the old rule is found to be
lawful. Based upon the cited case law I find it not to have been
lawful.
It is true that the buttons in question are colorful and visible
due to their size. Yet Respondent has never claimed that the
buttons were too large or deprecated the uniforms in some way.
In fact, there is no evidence that it ever complained to the Un-
ion about the size or nature of the buttons or told employees
that the button’s size or color was the problem. Nor is there
any evidence that any customer ever complained to manage-
ment about them. Nevertheless, Respondent sought to ban
them altogether. To the extent that Respondent claims a special
ARK LAS VEGAS RESTAURANT CORP. 1289
circumstance due to its status as a retail employer, the argument
fails. Beyond that, at least half of the employees who wear
buttons do so outside the direct presence of the public, perform-
ing their work in kitchens and utility rooms.
Furthermore, I find Respondent’s attempt to self-remedy the
violation to fail. For a respondent to successfully claim that it
has self-remedied a violation of the Act it must meet the test set
forth in Passavant Memorial Area Hospital, 237 NLRB 138
(1978). There the Board said that for a repudiation of an unfair
labor practice to be effective, it must be timely, unambiguous
and to specifically refer to the unlawful conduct. Moreover, the
repudiation must be broadly published and no further violations
must have occurred. In Holly Farms, 311 NLRB 273, 274
(1993), enfd. 48 F.3d 1360 (4th Cir. 1994),3 the Board said the
employer must admit wrongdoing. Here, at the very least, simi-
lar conduct continued to occur. The rule was never effectively
repudiated by the publication/rescission of the rule and there
was no admission of wrongdoing, a failure which may have
contributed to the continued ad hoc enforcement described
above.
And, of course, aside from whether the rule is lawful or not,
the conduct directed at these employees violated Section
8(a)(1) on essentially the same analysis. Clearly, telling em-
ployees they may not wear protected insignia or publicity de-
vices under pain of discipline or discharge, or physical removal,
is a self-evident interference and restraint and coercion of those
employees seeking to exercise their Section 7 right to wear
such items. Moreover, insofar as the attempt to revoke the
discipline levied upon Naghdi is concerned, voiding the coun-
seling documentation, like revocation of the rule, did not meet
the requirements of Passavant, if for no other reason than that
the same type of conduct continued to occur and other employ-
ees also found themselves unable to exercise that right free of
restraint.
C. The No-Distribution, No-Solicitation Rule
Respondent’s rule regulating the distribution of literature and
the solicitation of employees is found on page 45 of the em-
ployee handbook. It states in its entirety:

In the interest of maintaining a professional business envi-
ronment and preventing interference with work and incon-
venience to others, employees may not distribute literature
of any kind, sell merchandise, solicit financial contribu-
tions, or solicit for any other cause during work time.
Employees who are not on working time may not solicit
employees who are on working time for any cause or dis-
tribute literature of any kind to them. Furthermore, em-
ployees may not distribute literature or printed material of
any kind in working areas at any time. For this purpose,
the Employee Cafeteria is considered a working area in
addition to all the departments managed by Ark Las Ve-
gas.

“Working time” includes all time during which an em-
ployee is assigned or engaged in the performance of his

3 Case heard by the Supreme Court on other issues. 517 U.S. 392
(1996).
duties, but does not included [sic] breaks, meal periods or
other designated relief periods.

“Solicitation” includes, but is not limited to, activities such
as requesting charitable contributions, invitations to social
events, advertisements for home sales parties or communi-
cations with an employee seeking to obtain support for, or
participation in an outside group, organization, cause or
activity.
Non-employees are prohibited from distributing material
or soliciting employees on Ark Las Vegas’ premises at any
time.

The General Counsel objects to the rule on three grounds.
First, it asserts that the employee cafeteria (EDR) is not a work-
ing area and Respondent cannot define it as such; second, the
use of the term “premises” is overbroad, encompassing non-
work areas and creating an ambiguity to the detriment of
Section 7 rights of employees, off-duty employees and non-
employees; third, the reference to work areas is latently am-
biguous and may reasonably be interpreted to include tradi-
tional nonwork areas such as locker rooms or the EDR.
Although it is true that some of Respondent’s employees
(approximately 15 per shift) work in the EDR performing their
regular tasks and are “on-duty” when doing so, that restaurant
seats some 350 “customers” (NY-NY employees, Feld employ-
ees, or Respondent’s employees) all of whom are “off-duty”
when entering, picking up food, eating or leaving. In fact, Re-
spondent provides one meal per shift to its own employees.
The only place to obtain that meal is in the EDR. (See hand-
book, p. 27.) Thus Respondent induces those employees once
per shift to spend off-duty time in that room. Traditionally the
Board has held that such an area is a nonwork area in which
off-duty employees may distribute union literature or solicit
union membership of other off-duty employees. Harrah’s Lake
Tahoe Resort, 307 NLRB 182, 187 fn. 11 (1992). Respondent,
in its brief asserts that the prohibition only applies to the “on-
duty” employees.4 That may well be Respondent’s interpreta-
tion, but the General Counsel is attacking the language of the
rule because it does not clearly delimit its currently stated in-
terpretation, thereby allowing for a great deal of misunderstand-
ing.
On March 12, prep cook Ron Isomura began distributing un-
ion literature in the locker room. He was observed by a super-
visor, Bill Conn, giving such literature to Jesus Araiza who was
on his way to work. Conn interceded, removed Isomura, and
took him to the office where he was discharged. Gordon later
rescinded the discharge. Even so, Respondent’s treatment of
Isomura clearly violated Section 8(a)(1) for interdicting a pro-
tected act and Section 8(a)(3) for the discharge, rescinded or
not. I find merit in the General Counsel’s analysis. The rule
unlawfully bars employees from organizing in a nonwork area.
4 The only on-duty employees likely to speak directly to the off-duty
customers on any basis in this cafeteria are two food island attendants,
the short order cooks, and the stewards performing cleanup work, per-
haps less than half of the shift’s employees. (There may also be a
“cashier” of some sort who directs the “swiping” of magnetic-stripe
employee ID cards to obtain the meal, but that is not clear on this re-
cord.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1290
With respect to the contention made by the General Counsel,
but not by the Charging Party, that the rule unlawfully prohibits
nonemployee organizers from distributing literature or solicit-
ing employees in the EDR, I find myself bound by the Supreme
Court’s decision in NLRB v. Babcock & Wilcox Co., 351 U.S.
105 (1956), and Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992);
see also Nicks’, 326 NLRB 997 (1998). Those cases hold that
an employer is not obligated to allow nonemployee organizers
on the premises if there are reasonable alternatives available
which the union may utilize to communicate their message to
the employees. Here the EDR is not open to the general public,
but only to the employees of the three entities who do business
at the site, NY-NY, Feld, and Respondent. Since no one has
contended that reasonable alternate means of communication
are not available, I conclude that the rule insofar as it bars
nonemployee organizers from the EDR is valid.
With respect to nonemployee organizers visiting with off-
duty employees in the other restaurants, which are open to the
public, the holding must be the same. Until very recently the
Board’s decision in Montgomery Ward & Co., 288 NLRB 126
(1988), remanded on other grounds 904 F.2d 1156 (7th Cir.
1990), would have required me to permit nonemployee organ-
izers to solicit membership and distribute literature so long as
their conduct was not inconsistent with conduct expected of a
customer.
However, the Board recently overruled Montgomery Ward in
Nicks’, supra. The Board revisited Montgomery Ward in light
of Lechmere. It concluded that Lechmere had implicitly over-
ruled the logic of Montgomery Ward and determined that it
should be overruled explicitly, as it was bound to follow Su-
preme Court law. Thus, under Nicks’, an employer may estab-
lish a nondiscriminatory rule prohibiting a nonemployee union
organizer from distributing material or soliciting membership
on its premises at any time, if a reasonable alternative is avail-
able. Clearly, the last sentence of Respondent’s rule does ex-
actly that. Accordingly, the portion of the complaint which
seeks to attack this rule as it prohibits nonemployee union or-
ganizers from soliciting membership and distributing literature
in Ark’s restaurants will be dismissed.
D. The Rule Prohibiting Early Arrival or Late Departure
The handbook’s misconduct rules, on pages 42–43, prohibit
employees from arriving “on the property” more than 30 min-
utes prior to the start of a shift or staying “on the property”
more than 30 minutes after a shift ends unless authorized by a
supervisor. They also prohibit an employee from “returning to
the Company premises, other than as a guest, during unsched-
uled hours” unless previously approved.
As in the discussion supra regarding the no-solicitation, no-
distribution rules, the use of the word “premises” creates an
ambiguity which is unacceptable. Similarly, the use of the
word “property” creates the same problem. Indeed, the word
“property” in context appears to refer to the entire hotel, casino,
outside grounds, and parking lot complex. That word in hotel-
industry parlance generally means just that, and employees will
understand it that way. It would appear that the language of the
rule has been adapted from that industry. While such broad
language might be applicable to NY-NY hotel or casino em-
ployees in an appropriate rule, it is clearly too broad for the
employees of a concessionaire whose employees work in a
more limited but less defined area within “the property.”
Aside, however, from the obvious ambiguity of the “prop-
erty” or “premises” matter, the rule itself seems to have little
purpose in the context of Respondent’s business other than to
prevent employees from communicating to each other as they
change shifts. Respondent does not really present a valid busi-
ness justification for the rule. It cites potential workmens’
compensation concerns and a fear that an off-duty employee
might interfere with one who is on duty. Both fears are over-
stated. If the off-duty employee is in a nonwork area such as a
locker room or restaurant with other off-duty employees, the
likelihood of communicating with an on-duty employee is low.
If that occurs it can be dealt with on an ad hoc basis. And, its
concern with an on-the-job injury workmens’ compensation
claim is of some concern, but not enough to warrant interfer-
ence with the Section 7 rights of employees to communicate
with one another. Lawyers can always visualize some incident
in which an off-duty employee suffers an injury giving rise to a
workmens’ compensation claim, yet in reality the risk of such
an injury is quite low in nonwork spaces such as dressing
rooms and the seating area of restaurants. Certainly it is much
lower than in the working areas.
I find that this rule is an unwarranted intrusion into the abil-
ity of employees to discuss working conditions and to engage
in organizing activities with their fellow employees. It must be
found to violate Section 8(a)(1) and declared invalid. Tri-
County Medical Center, 222 NLRB 1089 (1976).
E. The Confidentiality Rule
Respondent’s handbook, page 45, requires employees to
keep certain information confidential. The General Counsel
contends that the rule is overbroad and inhibits employees from
discussing company matters even when away from work. The
Charging Party asserts that anti-confidentiality rules are unlaw-
ful per se. Respondent counters saying that this rule is aimed at
legitimate business concerns of the Company.
The rule reads as follows:

It is our policy to ensure that the operations, activities, and
affairs of Ark Las Vegas and our clients are kept confiden-
tial to the greatest possible extent. If, during their em-
ployment, employees acquire confidential or proprietary
information about Ark Las Vegas or its clients, such in-
formation is to be handled in strict confidence and not to
be discussed. Employees are also responsible for the in-
ternal security of such information.

Clearly an employer has a substantial and legitimate interest
in maintaining the confidentiality of private information—guest
information, recipes, contracts with vendors, and the like. The
Board very recently reconsidered this issue in response to a
decision of the court of appeals for the District of Columbia,
Aroostook County Regional Ophthalmology Center v. NLRB,
81 F.3d 209 (1996). Specifically, see Lafayette Park Hotel,
326 NLRB 824 (1998). There, the Board said that such a rule
would not be construed by employees to prohibit the discussion
of wages and working conditions among themselves or with a
ARK LAS VEGAS RESTAURANT CORP. 1291
union. Although the language here is a little different, the
analysis must be the same. This aspect of the complaint will be
dismissed.
F. The Rules Regulating Employee Conduct
On pages 41 and 44 of the Handbook, Respondent has set
forth certain rules regarding employee behavior which the Gen-
eral Counsel asserts are unlawful. Respondent asserts that the
rules are entirely proper and designed to protect its reputation.
Violation of the rules “will not be tolerated under any circum-
stances and will result in immediate suspension pending inves-
tigation (leading to termination)for any employee.” They are:

11. Conducting oneself unprofessionally or unethically,
with the potential of damaging the reputation or a depart-
ment of the Company.

68. Participating in any conduct, on or off duty, that tends
to bring discredit to, or reflects adversely on, yourself, fel-
low associates, the Company, or its guests, or that ad-
versely affects job performance or your ability to report to
work as scheduled.

The General Counsel relies on Senior Corporate Vice Presi-
dent Gordon’s testimony to demonstrate the unlawful nature of
the rules. First, Gordon testified Rule 11 “[W]ouldn't be ap-
plied to union activity on its face, unless someone in union
activity was doing something that was unprofessional or un-
ethical.” He went on to explain that wearing buttons would not
be regarded as a violation of the rule and neither would attend-
ing a union rally. Even so, his testimony is that although the
rule would not be applied to union activity “on its face,” it
might be applied if in the midst of that union activity they did
something which was unprofessional or unethical. Further-
more, Gordon agreed that the Company has never seen fit to
explain to employees that the rule would not be interpreted as
prohibiting union activity.
Similarly, in explaining the reason for rule 68, Gordon testi-
fied: “Well, [ . . . ] it’s sometimes hard to come up with exact
reasons why—what particular behavior. Like I said before,
there’s—there’s all sorts of different things that can happen that
might be—bring discredit to our company, bring discredit to a
person who's working for our company that’s inimical to the
interest of our company and our—and the people who would—
who would use our businesses, as well as their inability to per-
form their duties because of it, so that's why we put the rule in
there.”
Gordon didn’t say it very well, but I perceive that Respon-
dent is concerned with the fact, like every rule maker is, that it
cannot visualize every circumstance which might come up
which would injure the Company’s reputation. For that reason,
he says, the rule(s) must necessarily be somewhat vague.
The General Counsel asserts that the rules are overbroad and
do not define what it means by “unprofessional” or “unethical”
in terms of damaging the company’s reputation or somehow
discrediting it. He points to such possible conduct as informa-
tional picketing (meaning, I suppose, some sort of prod-
uct/service boycott) which might permissibly disparage Re-
spondent in some fashion. It clearly is true that public criticism
of an employer’s treatment of employees (“pays substandard
wages,” “abusive work practices,” “unfair”) are protected by §
7 and an employer who disciplines an employee for participat-
ing in such criticism will run afoul of Section 8(a)(3) and (1).
Indeed, most employers are sensitive to public airing of dirty
laundry. Yet that airing is protected by Section 7 so long as the
employees do not cross the bounds of “disloyalty” such as
product disparagement. Cincinnati Suburban Press, 289 NLRB
966 (1988); cf., Community Hospital of Roanoke Valley, 220
NLRB 217 (1975), enfd. 538 F.2d 607 (4th Cir. 1976).
In Electrical Workers (Jefferson Standard Broadcasting Co.)
v. NLRB, 346 U.S. 464 (1953), the Supreme Court upheld the
Board’s determination that product disparagement which
amounted to disloyalty was good cause for discharge even
where the employees were also engaged in a labor dispute and
were using product disparagement as a tactic in that dispute.
In that context, Gordon’s explanation of the rule and the
manner in which he intends to use it, does not seem out of line.
He appears to recognize that the rule is not to be applied in
labor disputes, even if that is not an expressly stated exception.
What the rule does do, however, is incorporate the Supreme
Court’s Jefferson Standard interpretation of just cause. In other
words, if as Gordon says, an employee involved in otherwise
protected Section 7 conduct is also perceived to be engaged in
conduct which is not protected (product disparagement relating
to the work of the departments or fellow employees) then it
intends to discharge such an employee as would be its right
under Section 10(c). The pertinent portion of Section 10(c) is
set forth in the footnote.5
The General Counsel’s difficulty with both rules, however, is
that neither they, nor the introductory portion of the rules, ex-
pressly exclude protected conduct from its reach, thereby in his
opinion, allowing for an ambiguity permitting an interpretation
so broad as to prohibit the type of conduct which would nor-
mally be protected in a labor relations context.
While I can see some validity in the argument, indeed I have
found ambiguity unlawful, in discussing another rule, supra, I
am not as impressed here. First the rule appears to be aimed at
conduct not related to Section 7 activity. Instead it seems to be
related to crimes or other misconduct, such as giving proprie-
tary information to competitors. That is a legitimate purpose of
the rule. Second, the statute specifically permits discharge for
certain conduct committed by employees in the context of labor
disputes, if that discharge is for cause. And, the Supreme Court
has defined the limits of such conduct and the rule may be
properly invoked in such an instance. The real question is
whether any employee, guided by knowledgeable union offi-
cials, would harbor uncertainty over the scope of the rule. I
tend to doubt that there would be any uncertainty here. The
Union is undoubtedly well aware of the limits of protected
conduct and well aware that the Act permits conduct which
could damage an employer’s reputation insofar as employee
treatment is concerned. It won’t interpret the rule as having
any application to a labor dispute.

5 Sec. 10(c) (in pertinent part): “No order of the Board shall require
the reinstatement of any individual as an employee who has been sus-
pended or discharged, or the payment to him of any backpay, if such
individual was suspended or discharged for cause.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1292
Moreover, Lafayette Park Hotel, supra, addresses an almost
identical rule, finding it to be lawful. It said such a rule cannot
reasonably be construed as encompassing Section 7 activity. I
therefore find the maintenance of this rule to be lawful.
G. Conduct Alleged to Violate 8(a)(1) or
8(a)(3) of the Act
Although this section is devoted to allegations that Respon-
dent has violated Section 8(a)(1) or 8(a)(3) in stand-alone inci-
dents, several such allegations have already been discussed.
Specifically, the button-related events described in section II.B
involving employees Saam Naghdi, Ron Isomura, Randy
Kiddy, Sandra Jordan, and Clara Montaño. That discussion
will not be repeated here. There are, however, numerous other
matters alleged in the complaint. For the most part the inci-
dents are discrete, having little direct relationship to one an-
other, although button wearing is a common thread. Accord-
ingly, each incident will be dealt with separately by employee.
1. Ron Isomura
Ron Isomura has been discussed to some extent above when
he was discharged for distributing union material in the locker
room on March 13. In levying that discipline I found Respon-
dent to have violated Section 8(a)(1) and (3). It will be recalled
that Isomura had signed the letter of March 11 and daily wore
the union committee leader button. He was a prep cook in
America, supervised by DeFazio and two sous chefs.
He was reinstated by Gordon when he realized that the rule
had been misapplied by Conn and the other managers (DeFazio
and Savoy) who had become involved. Before the incident
occurred, according to DeFazio, Isomura was already at risk.
He was still in his 90-day introductory period and, according to
DeFazio, would have been discharged that day anyway for
failing to meet the requirements imposed upon him. He says he
had decided to discharge Isomura for that reason as early as
March 9.
When Isomura returned to work a week later, Savoy gave
him a “mini-orientation” as he had not gone through the proce-
dure during his initial hire. He says Savoy told him the “tim-
ing” of the discharge had been wrong and asked why the Union
was spreading “propaganda” about Ark. He also asked how
Ark could afford to pay the union-negotiated wages which ap-
peared in a flyer. Then he went on to point out that the hand-
book still prohibited Isomura from coming in more than 30
minutes early and that he could not stay for more than 30 min-
utes after his shift. In addition, Savoy told him that he could
not organize in the EDR at all.
The two argued about whether those restrictions were lawful.
Isomura told him the NLRB had said he could and he said the
company attorneys disagreed. He asked Isomura to wait until
Wednesday while he checked further.
On Wednesday, McEvoy and Savoy called him to DeFazio’s
office where Savoy, alluding to what might be a “gray matter”
[area], told Isomura that the company’s attorney had contacted
the “Labor Board.” Isomura’s testimony: “He [Savoy] told me
he contacted [an] ARK attorney. An ARK attorney told him
that he contacted [the] Labor Board, and the Labor Board said
that the—the handbook is legal about coming in only 30 min-
utes. I can’t come in one hour. And I cannot do no organizing
in EDR.”
Savoy testified only that he had asked Gordon to check on
the matter, was informed that he had, and then told Isomura
only that it was still company policy to bar organizing in the
EDR. He did not testify that he said anything to Isomura about
the 30-minute rule.
About 3 weeks later, on April 16, DeFazio issued Isomura a
warning for leaving breaded chicken tenders out the night be-
fore. He agrees that he left them out, but says he had been
working past his shift and the graveyard prep cook (Marco) had
said he would finish them. Isomura also says he had been un-
able to find chef Perez to tell him, so he had told the lead prep,
Rickey Takaya, about it and he had told Isomura to leave it.
On the bottom of the warning form, Isomura asserted that
this warning was “conspicuous harassment” and Takaya had
been informed. Indeed, DeFazio admits he has never asked
“chef Rickey” if he knew about the tenders. The warning
stood. Takaya was not called to testify.
Respondent defends on the ground that this was not the first
time that Isomura had left food unrefrigerated, pointing to some
earlier incidents before his March discharge/reinstatement and
which had supposedly led DeFazio to make his March 9 deci-
sion to discharge him. I am unimpressed. The incident, while
annoying, was relatively harmless. Moreover, DeFazio would
not hear Isomura’s explanation, that Takaya knew of it and had
told him to go home because it was past his shift and that Ta-
kaya would handle it. Isomura was already in DeFazio’s dog-
house and DeFazio, overruled once on Isomura’s discharge,
was too eager to make a record for a subsequent discharge. He
was present when Isomura had returned to work and was in-
volved in Savoy’s charge that he refrain from organizing in the
EDR and to abide by the 30-minute rule. The managers well
knew of Isomura’s propensity toward organizing and were
looking for an excuse or creating a paper trail which would
justify getting rid of him. Respondent’s explanation is simply
too weak to be of concern.
Clearly Respondent has committed several independent vio-
lations with respect to Isomura. On March 22, Savoy’s so-
called miniorientation breached the Act in several ways. He
barred Isomura from lawful organizing both by prohibiting it in
the EDR and by requiring him to abide by the 30-minute rule.
Both directives violated Section 8(a)(1). In addition, his sup-
posed rhetorical questions about why the Union was spreading
propaganda about the Company and about Respondent’s ability
to match the union-negotiated wage scale set forth in a flyer
were, if not an actual interrogation, an “in your face” act of
intimidation. It was no rational discussion or debate, but an
unwarranted demand that Isomura answer a question which he
had no capability to intelligently answer and Savoy knew it.
Answering the question was not the issue. Putting Isomura on
an uncomfortable spot was. The conduct violated Section
8(a)(1) as a direct coercion of Isomura because of the views he
held.
Finally, Savoy is not credited with respect to his description
of what was said several days after Isomura returned to work
following his reinstatement when he told Isomura the rule
against distribution/solicitation in the EDR and the 30-minute
ARK LAS VEGAS RESTAURANT CORP. 1293
rule were proper and lawful. It is true that he punctuated that
directive by asserting that the “Labor Board” had confirmed to
Respondent that its rules were lawful. That statement was un-
true. The National Labor Relations Board had not yet been
asked to review the rules, much less determine their legality.
Moreover, there is no evidence that any of the Board’s Re-
gional Office people had said any such thing. In fact, Savoy (or
someone upon whom Savoy relied) was making it all up. Thus
the directive’s only purpose was to interfere with Isomura’s
Section 7 right to organize. It effectively prevented him from
organizing before or after his shift and in the EDR. The fact
that Respondent improperly invoked the Board’s name does not
add anything to the unlawful interference.
The General Counsel argues that Respondent’s use of the
Board’s name in asserting its misstated claim of legality re-
quires me to make an additional finding that Respondent vio-
lated Section 8(a)(1). The General Counsel cites no unfair
labor practice case on point and I am disinclined to make such a
finding.6 The remedy requiring Respondent to eliminate the
rules will be sufficient to correct the real problem, maintenance
of the rules.
2. Michael Thomasson
Michael Thomasson was hired in December 1996 as a waiter
for America. He worked the swing shift, which varied slightly,
either 4 or 5 p.m. to 11 p.m. or midnight. At the end of March
he began wearing the “union committee leader” button daily.
The first night he wore it, March 31, he says his manager
Margeaux Farris, gave him a “cut” signal at 8 p.m., 3 hours
before the scheduled end of his shift (11 p.m.), and sent him
home for the evening. Respondent uses a master clock-in,
clock-out system known as Kronos. It records each employee’s
entrance or exit from work when they swipe their magnetic ID
cards through a sensor. The Kronos system shows that on
March 31, Thomasson checked out at 11:30 p.m., 30 minutes
past his scheduled time if it was 11 p.m., or 30 minutes early if
his shift was to end at midnight. As the documentation shows
that he worked to about when he should have, I find that his
testimony about March 31 to have been in error. The allegation
that he had been sent home 3 hours early because he wore his
union pin for the first time that night will be dismissed for lack
of evidence.

6 The Board has held in two areas that it is a violation of Sec. 8(a)(1)
to deliberately misstate legal rights under Sec. 7. The most common is
a misstatement of economic strikers’ rights under Laidlaw Corp., 171
NLRB 1366, enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S.
920 (1970). If that misstatement amounts to a threat of job loss, an
8(a)(1) violation will be found. See Edward A. Utlaut Memorial
Hospital, 249 NLRB 1153, 1157–1158 (1980), enfd. in part, denied in
part w/o opinion, 657 F.2d 272 (7th Cir. 1981); Emerson Electric, 287
NLRB 1065, 1066 (1988); and Baddour, Inc., 303 NLRB 275 (1991).
The other is sometimes found in representation election campaigns
where an employer misstates employee rights as described in Sec. 9(a)
of the Act, by wrongfully telling employees that they will lose a benefit
of employment, the right to speak directly to the employer if a third
party is injected into the relationship. See Sacramento Clinical Labo-
ratory, 242 NLRB 944 (1979); C & J Mfg. Co., 238 NLRB 1388
(1978); and Handee-Pak, Inc., 232 NLRB 454 (1977).
The complaint also asserts that Bobbie Rihel and Farris is-
sued Thomasson a warning on April 5 which was unwarranted
and that it was because he was wearing a pin. The warning was
for failing to approach customers within 15 minutes of their
sitting down at two tables in his station. On the stand he at first
denied that the incident had occurred at all. When presented
with the warning, he admitted that he had written in the com-
ments section that he did not approach them for about 7 min-
utes.
It is clear from the evidence that the customers were both hot
under the collar and Rihel was responding to their anger.
Whether it was 7 or 15 minutes is of little significance. Even if
he was wearing his union button during the incident, no man-
ager mentioned it and the focus was entirely on the occurrence,
nothing else. In that circumstance I see little support for the
allegation. It, too, will be dismissed.
3. Yvonne Spears
Yvonne Spears is a server in GYG. She was hired in De-
cember about a month before NY-NY opened in January. She
testified that on April 3, at the end of her shift and while she
was getting ready to turn in her “bank,” Manager Christine
Flores and Assistant Manager Philip Mathews approached her.
Flores began by refuting some “rumors,” which she said
were being circulated, to the effect that because of the union
organizing effort, some 35 executives were to be fired. Flores
assured Spears that was not so. Spears replied that the rumor
she had heard was that it was to be 35 employees, and she paid
little attention to such rumors. Then, according to Spears, Flo-
res “told me that—‘they’ meaning ARK, had no intentions of
signing a union contract. And I told her I knew that too.”
Flores could recall only one conversation with Spears re-
garding the Union. She recalls Spears asking for her opinion
about the Union. Flores says she simply told Spears she didn’t
think Respondent could afford the union contract rate. She
explained to me that she had come to this belief because Re-
spondent wasn’t a casino and didn’t have casino dollars to sub-
sidize the pay scale. However, there is no evidence that she
actually explained her reasoning to Spears.
Even so, I am unconvinced that Flores actually said anything
about refusing to sign “a” union contract. I find that she actu-
ally said the company couldn’t afford to pay the rate set forth in
some union flyers. Thus, I do not think the evidence supports a
finding that Flores said anything to the effect that unionization
was futile as alleged in the complaint. Instead it supports a
slightly different violation, that Respondent could not afford to
pay the rates which the Union wanted. The Supreme Court in
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), dealt with
that issue. It said in a labor relations context that the analytical
question was whether the remark was a threat or a “fact-based”
prediction, which would be lawful as an expression of opinion.
At 617–619.
For this remark to have been a lawfully fact-based predic-
tion, Flores would have had to have stated her reasoning to
Spears. She did to me, but not to Spears. Thus Spears was left
wondering why Flores had put it the way she did. One reason-
able interpretation is that if Respondent was obligated to sign
that contract, and if it could not afford the pay rates, something
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1294
negative would occur—perhaps loss of jobs or losing the busi-
ness to economic circumstances. Without an objective explana-
tion, that becomes an unlawful though subtle, threat. Gissel
Packing Co., supra, at 618; Jimmy-Richard Co., 210 NLRB
802, 804–805 (1974), enfd. sub nom. Amalgamated Clothing
Workers v. NLRB, 527 F.2d 803 (D.C. Cir. 1975), cert. denied
426 U.S. 907 (1976). Also, Weather Tamer, 253 NLRB 293,
305 (1980), enfd. in pertinent part 676 F.2d 483 (11th Cir.
1982) and many others.
Therefore, I reach a conclusion different from the one of-
fered by the complaint, but based upon the same facts. An
appropriate remedial order will be issued.
4. Sandra Lopez
Sandra Lopez was hired in early December 1996 to be a
server in America. She began working when NY-NY opened.
She signed the March 11 letter demanding recognition and
asserting that she was a union leader. On March 14 she began
wearing the “union committee leader button.” She asserts that
on that day or shortly thereafter, Supervisor Farris “cut” her at
8 p.m., 3 hours before the end of her shift. The Kronos time-
keeping system does not support her. On March 13, the day
before she began wearing the button, she was sent home at 9:26
p.m., about 90 minutes early.7 On March 20 she was “cut” 40
minutes early; on March 28 “cut” at 9:15 p.m., an hour and 45
minutes early; and on March 30 and 31, “cut” 30 minutes early.
There is no evidence that she was ever “cut” by 3 hours.
Farris testified, and there is no reason to doubt her, that early
outs are relatively common and are based upon the amount of
business being done that evening. The restaurant is shut down
by stages, closing the outer wings first. When an area is shut
down, the server is usually cut, although since the manager
attempts to equalize the cuts, sometimes that server will be
moved to an interior station and the person at that station will
be cut. Lopez agreed that on the night she is concerned about,
several other servers were also sent home early. She also testi-
fied that a server named Sokolowski took over her station.
Moreover, a review of the Kronos records shows that early outs
were common.
I am of the view that this allegation is not supported by the
evidence. The theory of the General Counsel is that Lopez
suffered an early out as soon as she began wearing her union
committee leader pin and that she was somehow treated differ-
ently from other servers with respect to the “early outs.” First,
there is no evidence of any 3-hour “cut.” Second, the lengthy
cut in the mid-March period to which she refers is before she
began wearing the button (although after she had signed the
letter). And, third, the lengthy March 28 early out is not within
the timeframe she testified about. In short, the incident does
not appear to have occurred as she recalls. Finally, given the
everyday nature of the early out practice, and the fact that it
was applied to all the servers, I cannot find any evidence of a
violation here.

7 There is also a 4:15 p.m. departure on March 19, but that seems to
be something else, either a different shift or a special reason for leaving
early.
The complaint also asserts that Lopez received unwarranted
discipline relating to supposed inattentiveness to customers, an
April 5 counseling review and a 3-day suspension on April 12.
The first incident involved not refilling customers’ beverages
while the customers waited for their food, which had been de-
layed at the kitchen. The customers had apparently complained
to Farris and Farris had seen that their beverages were refilled.
Lopez says she explained to Farris later that the customers had
told her not to refill them until the food was served. Farris did
not accept that explanation and, frankly, neither do I. If they
had said any such thing, they would not have complained to a
manager to get the situation rectified. Assuming Lopez is tell-
ing the truth, it seems likely that she has mistaken one table for
another.
The second incident, about a week later, was for “poor cus-
tomer service.” The suspension notice asserts that after a cus-
tomer’s 25-minute wait she had failed to bring drinks and had
not provided bread for the table. Lopez says the customer was
a mother with small children who had asked for paper cups
with lids. She says she searched all over for them but was un-
able to find them quickly enough to satisfy the customer.
Eventually another server found them. Manager Bobbie Rihel
placed another server at that table and issued the 3-day suspen-
sion to Lopez.
I am unable to find any violation with respect to these inci-
dents. The entire matter seems to be a relatively even-handed
processing of progressive discipline. It began with a counsel-
ing review in the first matter and a short suspension for the
second. Now it may well be that Lopez’ view of the difficul-
ties she was encountering on those days is not unreasonable.
Other employers may well have responded with no or less dis-
cipline. Yet the General Counsel must connect the discipline to
Lopez’ union activities in order to make out a violation. That
has not been accomplished. Neither Lopez’ button nor her
having signed the letter was ever mentioned to her by any man-
ager. And the incidents did occur and did come to the restau-
rant managers’ attention. Customers were unhappy with the
service and something needed to be done to correct the short-
coming. Choosing a progressive discipline to accomplish that
is not evidence of discrimination. These two allegations will be
dismissed as well.
5. Saam Naghdi
Saam Naghdi’s March experience with button wearing has
been described above. He had been sent home by GYG man-
ager, Christina Flores, for wearing the button. On April 10 she
issued him another warning, this time for failing to refill
salt/pepper shakers. It was a slow afternoon and he had been
training a new hire. At the end of a shift each server is sup-
posed to perform this so-called “side work” before checking
out. The checkout process is performed by the manager, in this
case Flores. Flores did check Naghdi and his trainee out. Sev-
eral hours later she observed the server who was working the
next shift filling up the shakers and the sugar caddies. Flores
concluded that Naghdi hadn’t done the work, even though she
had approved his departure. The next day she issued him a
warning, but declined to deliver it herself. Instead she asked
her Assistant Manager Sullivan to deliver it.
ARK LAS VEGAS RESTAURANT CORP. 1295
The warning, over such a petty matter, triggered Naghdi’s
comments: “Good Joke. Ha Ha. I find it really funny that the
GM signs me out and okays my side job and then she writes me
up. Hmmn. Maybe the GM should be trained on the side jobs.
Sounds like a nice Ark conspiracy to me. Hmmn.”
His comments caused Vice President Gordon some concern.
He met with both and eventually determined that Flores was
not performing well as the GYG manager. She was transferred
to the beverage director position. Even so, the warning stood.
As I see it, Flores was still sensitive to the rebuff she had re-
ceived from the position Naghdi had taken regarding the button
in early March. Her decision to send him home had been re-
versed by upper management and she no doubt resented the
embarrassment Naghdi had caused her. The warning over the
salt and pepper shakers was simply her petty act of revenge. As
can be seen from Naghdi’s reaction, he perceived it as a poorly
conceived antiunion conspiracy. He was, and is, an expert
server who does a good job, and he knows it. He could see no
other motive than to sting him for his union views.
I think his perception was generally correct. Flores may not
have been involved in any “Ark conspiracy” but she was still
bruised over the earlier incident. The warning was an easy way
to get even. Since it all arose from the earlier incident, the
entire warning process was poisoned. Had Gordon stricken the
warning as unwarranted, perhaps Respondent’s defense that
this was simply a disagreement with Flores’ management style
might be persuasive. He did not and I am left with a petty re-
venge matter intertwined with an earlier protected act.
In that circumstance, I find that the warning issued to Naghdi
was in retaliation for his union activities. A remedial order
under Section 8(a)(1) will be entered.
6. Vertis Manuel
Vertis Manuel was hired January 3 as server for America.
He signed the March 11 letter and began wearing a union
committee leader pin shortly after they became available. Evi-
dence elsewhere shows they became available about March 13;
he thinks he began wearing his on March 8. I think he is mis-
taken here, but the mistake is insignificant.
The evening of April 8 was a nightmare at America. The
restaurant was unprepared for a large number of conventioneers
and the kitchen was running about 2 hours behind. Very little
was going right. Angry customers were everywhere; many
were leaving. To placate the customers, management had be-
gun “comping” drinks (giving free or “complimentary” alco-
holic beverages) to the customers who wanted them. The wait
staff had little to do because of the kitchen delays.
Manuel and management have two versions of what hap-
pened next.
Manuel testified that he had two booths near the back next to
the bar. Next to his tables were two others, being handled by
fellow server Beth Hammontree. They were the only two wait-
ers in the area. Both were wearing wait staff uniforms; it is
distinctive and one would not mistake it for supervisors’ attire.
At one point a lady approached Manuel near the bar and asked
to speak to a manager. Manuel asked where she was sitting and
went off to get a manager; he found Assistant Manager Joe
Albanese. Manuel let him take care of the problem and re-
sumed his duties.
For a period of time Hammontree was absent from her area
and while she was gone Manuel attempted to conciliate some
customers at her station who were complaining bitterly. He
apologized to them and noticed that one of the women was the
lady whom he had seen at the bar. He testified:

MANUEL: . . . [A]fter I apologized for the bad ser-
vice that we were giving, she said, ‘Well, what I’m going
to do is that when I leave, I’m not going to pay my check.’
Q. And what did you say?
A. I explained to her that that’s an issue she would
have to take up with management. And she explained to
me that, no, when I leave the hotel, I’ll refuse to pay. And
I asked her, I said, “Are you staying at New York, New
York?” And she said, “Yes.” And I explained to her that’s
who she should be complaining to.8

He says about 40 minutes later another lady came up behind
him and spun him around, saying he had told her to complain to
NY-NY. At that point manager Seth Lewis intervened and said
he would take it from there.
Executive Chef Damien McEvoy says he was in the kitchen
when he heard Lewis say there had been an “altercation” be-
tween Manuel and some guests in the dining room. He in-
structed Lewis to get written statements describing what had
happened. He also says the decision to discharge Manuel was
made by Lewis and Gordon and that he was not involved.
The customer’s identity is apparently not known. Respon-
dent has presented the testimony of several individuals. Ac-
cording to Respondent, Manuel was behaving in a manner con-
sistent with what it characterizes as the Union’s opposition to
strip hotels hiring outside restaurant operators instead of operat-
ing them themselves.9
Manuel, of course, admits that he told the customer to take
her complaint to NY-NY, as she was a NY-NY hotel guest in
the belief that the bill would not be presented for payment until
she checked out. Even so, his testimony falls far short of send-
ing the guest to NY-NY simply to cause trouble.
Derek Stoffel was another waiter (now bartender) in Amer-
ica. He says he had a station near Manuel’s that night. He
testified that he heard both Manuel and another server, Donna
Wilson, tell customers to go out to the NY-NY representatives
and report that they weren’t getting good service. He also as-
serts that he spoke to Manuel after the incident to ask what was
happening. He says Manuel told him he had been telling cus-
tomers to complain to NY-NY and urged Stoffel to do the
same. Stoffel says he advised both Lewis and Albanese what
they were doing. Stoffel is Albanese’s roommate.

8 Manuel asserts this is the only time he ever told a customer to
complain to NY-NY.
9 Manuel admits wearing a “no subcontracting” shirt at some union
rallies. He has been a union member since 1995. At the time of the
hearing Manuel had become employed by the Union in a capacity
which Respondent chose not to pursue when examining union organ-
izer Kline. Neither was Manuel’s length of employment explored.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1296
Wilson did admit that she was telling customers that night to
complain to NY-NY management about the service in order “to
help us” in their effort to organize.
Although from Respondent’s perspective, both Manuel and
Wilson had said roughly the same thing to customers, only
Manuel suffered any discipline. He was discharged, apparently
because whatever he said had actually been transmitted in some
form (perhaps garbled) to NY-NY.
In that regard, NY-NY front office Assistant Manager Carrie
Spiropoulos testified that a woman had come to the NY-NY
front desk saying that a manager from America had told her to
complain to NY-NY about the poor service. Following up,
though somewhat perplexed by the claim, she accompanied the
lady to the America floor where she pointed to two persons
(neither of whom were managers), one Caucasian and one Afri-
can-American. The lady went to her booth which had about 15
others sitting there. At that point the African-American10 ap-
peared at the table and the woman said to him, “Aren’t you the
manager who told me to go and get the hotel manager?” Spiro-
poulos said he smiled strangely, “[L]ike, I don't know, cat that
ate the canary kind of look, strange look. And he just shook his
head no.” She went on to say that at that point the lady “[L]ost
it. She like started jumping up and down. And she ran over to
her table. And she said, “Didn't he say he was the ho—didn't
he say he was the manager,” and she—and all the people in the
booth were like looking at her like she had lost her mind. But
she was so mad . . . .”
With respect to Spiropoulos’ testimony that the African-
American looked like the cat that ate the canary, I am of the
opinion that her characterization of such a look is too vague and
conclusionary to be relied upon. Respondent views it as an
admission of guilt with respect to motive, but I do not think it
convincing. People smile for all sorts of reasons, including
amused bewilderment. In this case the lady was making a
rather wild accusation, that Manuel, wearing a waiter’s uniform
and performing waiter’s duties, had passed himself off as some
sort of manager. A waiter hearing the accusation, coming from
an exasperated customer, could easily smile in that situation,
particularly if her companions were treating her as if she didn’t
know what she was talking about.
This last issue, supposedly passing himself off as a manager,
appears in the record of exit interview as the first and second
items (they are intertwined) which Lewis told Manuel when
explaining the discharge. (GC Exh. 43.) The document asserts
that Manuel had visited a table not his own not for the purpose
of serving it and appeared to the guest to be a manager.
Objectively, no such thing ever happened. Spiropoulos’ tes-
timony made that clear. She said the lady’s companions were
looking at her as if she had lost her mind, and while her behav-
ior may have had something to do with it, all could see Manuel
wearing his waiter’s uniform knowing he had said no such
thing. Beyond that, as he was wearing the uniform, the prob-
ability that he had he would have attempted to have imperson-
ated a manager is so unlikely as to be disbelieved on its face.
Yet the one thing which Lewis never did in the course of his
“investigation” was to ask Manuel what had happened. He did

10 Manuel is African-American.
not do so that night and he did not do so during the exit inter-
view 2 days later.
Instead, Lewis characterized the incident as a “confrontation
with a customer” according to McEvoy and suspended Manuel
for 3 days “pending investigation.” While the investigation
appears to have focused on Manuel’s having directed the cus-
tomer to complain to NY-NY, when Lewis heard that evidence,
he stopped. At that point the decision had been made. His
testimony in answer to my questions was entirely unsatisfac-
tory. His testimony about the exit interview on April 10:

JUDGE KENNEDY: Mr. Lewis, I'm interested in
your conversation during the discharge of Mr. Manuel.
You had, at that time, received information from several
other individuals, I think, who had given a version of what
happened out there. What—and then Mr. Manuel, you
said, told you that that wasn’t the way it happened. What
did you do at that point?
THE WITNESS: Uh—he—I asked him if he had any
further comments about it. He said “No.”
JUDGE KENNEDY: Well, if it wasn’t the way it
happened, and you had different versions in writing, why
didn’t you ask Mr. Manuel to explain his version, and per-
haps put it in writing—
THE WITNESS: Asking him to explain his version,
I—
JUDGE KENNEDY: —or describe it?
THE WITNESS: He didn’t volunteer any more infor-
mation.
JUDGE KENNEDY: Well sir, I—
THE WITNESS: I—I sat there, ready to listen.
JUDGE KENNEDY: But you had asked, apparently,
other people to volun—to give statements, why didn't you
ask him?
THE WITNESS: I sat there ready to listen to any
other version he was ready to—he chose not to.
JUDGE KENNEDY: But you didn’t—
THE WITNESS: He chose not to.
JUDGE KENNEDY: But you—well did you encour-
age him to give a statement?
THE WITNESS: Uh—I didn’t discourage him.

As a result of that approach, Respondent deliberately blinded
itself to a more probable version, one which would have been
presented by the person actually involved in the incident, carry-
ing firsthand information, as opposed to the secondhand mate-
rial supplied by the others. Even if, as asserted by Stoffel,
Manuel had been telling customers to complain to NY-NY, it
does not follow that he did so in this incident. He says he only
told the customer to take up the billing question with NY-NY,
based upon what the customer had told him. Thus, Stoffel’s
version really adds nothing; in fact it may have distorted the
situation.11
11 Hammontree’s testimony about what a customer later told her
about what Manuel had done is clearly secondhand. She never saw or
heard Manuel speaking to customers that night. Furthermore, her ob-
servation of a lady customer with an American Express credit card is of
little assistance to counter Manuel’s testimony regarding the woman’s
intentions regarding paying her bill. She never used it as the meal was
ARK LAS VEGAS RESTAURANT CORP. 1297
On the personnel action form (GC Exh. 18) Respondent as-
serts that the reason for the discharge was “conduct unprofes-
sional—damaging to business—willful misconduct.” Vice
President Gordon concurs, even citing rule 68, discussed supra
in section II.F. That rule bars behavior which supposedly
“tends to bring discredit to, or reflects adversely on, yourself,
fellow associates, [or] the Company.”
There is no evidence that NY-NY ever complained about
Manuel’s conduct that night and it seems likely that upper NY-
NY management, if they even heard of the incident, regarded
the matter as a minor misunderstanding. Moreover, if it hap-
pened as Manuel testified, and I believe it did, it didn’t even
tend to bring discredit on himself or any fellow associates. It
was only a well intentioned effort which went badly due to
some sort of misperception on the part of a disgruntled, perhaps
mildly inebriated, customer. In short, the rule was not broken.
There is also evidence that the day before he was discharged
a local newspaper, the Las Vegas Review Journal published an
article headlined “Foodworkers Hope To Organize Casino Sub-
contractor.” The article stated: “Vertis Manuel wants afford-
able health insurance.” It went on to describe the organizing
efforts.
Thus, the evidence shows that Respondent harbors union
animus, was aware that Manuel had signed the March 11 letter,
wore a pin declaring him to be a union committee leader, was
mentioned in a newspaper article as a union activist, and fired
him for reasons which it cannot demonstrate are true, for Lewis
deliberately chose to ignore Manuel’s versions of the facts
when investigating. In this regard Respondent failed to do what
it promised on page 46 of its handbook, “fully investigate the
facts surrounding the incident(s) for which discipline is being
considered.” That suggests strongly that Respondent was using
the incident as an excuse to rid itself of Manuel who was oth-
erwise a satisfactory employee. Clearly such an effort fails to
rebut the prima facie case that Manuel was discharged in viola-
tion of Section 8(a)(3). Therefore I find that Respondent
unlawfully discharged Manuel on April 10.
7. Jesús Araiza
Jesús Araiza was a dishwasher at America who normally
worked a 2–10 p.m. shift. He had been hired on February 20.
On March 13 he witnessed the confrontation between Isomura
and the managers who were attempting to prevent Isomura
from distributing union material in the locker room. Araiza
was the one to whom Isomura was seeking to distribute.
Unfortunately, Ariaza was running about 20 minutes late; one
of the supervisors knew it and told him to get to work and it is
unclear whether the distribution was ever completed. Araiza’s
attendance and tardy record between his hire and his discharge
on June 10 was somewhat spotty. He did sign the March 11
letter and wore the “committee leader” union button to work.

“comped” and it is not even clear that it was the same person. Fur-
thermore, presentation of a credit card would not have occurred before
the meal was served. Manuel had gone to Hammontree’s table to as-
suage the concerns of customers who were waiting for their meal. The
timing is wrong to support a finding that Manuel was not telling the
truth.
The General Counsel alleges that Respondent’s discharge of
Araiza violated Section 8(a)(3). Respondent replies that he was
discharged for failing to satisfactorily complete the 90-day
introductory period.
On Tuesday, June 9, Araiza was scheduled to work at 2 p.m.
as usual. However, he had been in California for a day or two.
At approximately 9 a.m. while he was driving back to Las Ve-
gas, his car broke down 20 miles outside Victorville, Califor-
nia, which is about 190 miles from Las Vegas. He was able to
get a ride to Victorville where he attempted to telephone his
cousin in San Bernardino (about 43 miles southwest). He was
unable to reach his cousin until 2 p.m. Eventually, Araiza ar-
rived at work in Las Vegas about 6 p.m.
He testified that while in Victorville, he called his cousin’s
home frequently, but could not reach him because the cousin
was at work. At the same time he admits that he never at-
tempted to telephone Respondent to advise them of his pre-
dicament. He claims, lamely in my opinion, that he didn’t have
the telephone number for absences so he didn’t call. He admits
he did not seek to find any other number to call either. There
were several obvious ones. He could have tried directory assis-
tance for Respondent or for NY-NY. Had he called the NY-
NY main number the call could have been transferred to his
department head, Valerio Rodriguez, or to the Ark administra-
tive office. He had several numbers to call, but made no effort.
When he arrived at the facility he was prevented from work-
ing by two supervisors whose names he doesn’t know. (They
were McEvoy and Savoy.) He had attempted to log in at a NY-
NY terminal instead of Respondent’s terminal which is conven-
iently located outside the locker room. That behavior had
drawn the attention of the two executive chefs. After speaking
to another chef outside his presence, he says they took him to
the office to get him a payroll check. Unable to find it, they
told him to come back the next day, April 10. When he did so,
Rodriguez told him he had been fired and gave him his final
paycheck. McEvoy says they simply sent him home as they
would not permit anyone to begin work 4 hours late.
The personnel action notice placed in his file shows that the
effective date of his discharge was the day before, April 9, the
day he had been about 4 hours late. The reason given was that
he had failed to meet the 90-day introductory period.12 The
form was signed by McEvoy. McEvoy asserts that the reason
he was fired was because of the lateness on April 9.
Respondent does have a very tough absence policy when it
comes to no-call, no-shows. Clearly Araiza breached that pol-
icy and was seemingly attempting to provide an excuse for
himself when he tried signing in at the NY-NY clock.
If the evidence stopped there, his case would be less trou-
bling. But Respondent has made other assertions as well. It
contends, in a letter from its counsel that Araiza was “habitu-
ally” late as a probationary employee (GC Exh. 10, p. 5), and
that he was one of five employees laid off in a near simultane-
ous cancellation of the swing-shift room service operation.
12 Respondent’s policy with respect to discharging 90-day introduc-
tory employees is to decline to provide such individuals with the real
reason for their failure. Those persons are told only that they have
failed the 90-day introductory or “probationary” period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1298
Respondent no longer makes the latter argument as the evi-
dence dealing with it would not support it. Frankly, I am of the
belief that counsel simply made an unfortunate error with re-
gard to that contention and that it is not evidence of shifting
reasons. Still, the evidence regarding his “habitual” tardiness is
not as strong as one would expect. Certainly Araiza’s limited
admission that he was only absent once is not worthy of much
consideration. There are two entries in the logbooks showing
tardies on March 14 and 15. We also know of the March 13
tardy when he encountered Isomura, for he acknowledged that
he was then 20 minutes late. Moreover, executive steward
Kenneth Clark said he counseled Araiza verbally three times
regarding lateness. Assuming two of those counselings were
the logged versions, there clearly are others. Even so, given the
passage of time between the March tardies and the April 10
discharge, the attorney’s use of the phrase “habitual” is an
overstatement.
The General Counsel in this situation makes a timing argu-
ment. He points to McEvoy’s signature dated April 9 and con-
cludes that the decision to discharge Araiza was made before
the 4-hour tardy was known and that the only tardies were an-
cient history and thus the reason is false (particularly when tied
to the room service division’s swing-shift shutdown). The only
evidence that a decision to discharge him before the 4-hour
tardy is the odd treatment which Araiza describes after being
caught by McEvoy and Savoy. He says they took him to get
what might be construed as an already prepared paycheck, sug-
gesting the decision to discharge had previously been made.
Yet McEvoy says he simply told Araiza he could not go to
work if he was 4 hours late and sent him home. McEvoy’s
version makes more sense to me. Accordingly, it is credited.
Based on the credible evidence, I conclude that the General
Counsel’s prima facie case with respect to Araiza, weak as it is,
has been rebutted. McEvoy’s statement that he discharged
Araiza after finding out that he was 4 hours late, and for which
Araiza had only a lame excuse,13 while observing Araiza at-
tempt to avoid responsibility by deliberately (if futilely) punch-
ing the wrong clock, is entirely credible. Araiza had been
caught by the supervisors least likely to have cut him any slack.
Accordingly, I find that the General Counsel has failed to prove
that Respondent discharged Araiza because of his union activi-
ties. This portion of the complaint will be dismissed.
8. Jorge Aguilar and David Schafer
The complaint asserts that both fry cook Jorge Aguilar and
line cook David Schafer were discharged in violation of Section
8(a)(3) because of their union activities. Respondent asserts
that both were laid off for lack of work when it eliminated the
swing shift in its room service division, effective April 10. It
also says it tried to place these individuals in other restaurants
and the banquet operation, but when it was unable to do so, it
let them go. Schafer later answered an ad for a cook, but was
given a runaround.

13 Araiza had said only that he “had been in L.A.” and never de-
scribed the vehicle breakdown. If he had, his failure to call would have
made his excuse even more inadequate.
Jorge Aguilar worked the day shift at America, 7 a.m. to 3
p.m. He had been hired on January 22. Aguilar is a long time
Ark employee having worked for other divisions on the East
coast, including New York City, Washington, D.C., and Ty-
son’s Corner, Virginia. The manager at Tyson’s Corner had
given him a very strong general recommendation dated August
7, 1996.
In March, Aguilar began wearing a union committee member
button. On April 10, his immediate supervisor, sous chef
Robert DeFazio, called him to the office and discharged him for
“not having passed his 90 day introductory period.” He offered
no other explanation. The only feedback Aguilar had gotten
thus far was a compliment from another chef, named Jeff, to the
effect that he was doing good work. The parties are agreed that
he had never been assigned to perform work for the room ser-
vice division.
David Schafer, on the other hand, did work for the room ser-
vice division. He had been hired in early December as a line
cook for the 2–10 p.m. (swing) shift. His supervisor was chef
John Hausdorf. He was one of the two original line cooks hired
for the swing shift. (The other was Skyler Barnhill.) Then in
January, two more line cooks were brought in, Manoune “Cala”
Dengvongsa and Vincent Shelby. There were also pantry em-
ployees and persons who primarily did banquet work (usually
cold hors d‘ouevres and aspics) but who were considered part
of room service.
In mid-March Schafer began wearing a union button daily.
Before he put it on he spoke to chef Hausdorf about it and ex-
plained he had the right to wear it. Hausdorf apparently was
not unreceptive and told Schafer to “go for it.”
On April 12, Hausdorf came to Schafer while he was work-
ing and said, “Dave, you know what's going on here. I’m
sorry[.] I have to let you go. I've tried to place you into an-
other restaurant, but nobody will have you.” He said he was
sorry to let Schafer go, that he was a good worker, but there
was nothing he could do about it. Schafer was laid off while
the other three line cooks were kept on, transferred to other
restaurants.
Schafer is an experienced cook with 13 years’ experience at
another Las Vegas Hotel, the Imperial Palace. While with Re-
spondent he was used to training new employees. In addition
he has owned a restaurant back East and he has managed res-
taurants in Las Vegas prior to his stint at the Imperial Palace.
Of the 10 swing-shift room service employees, 4 were laid
off. Barnhill went to Gallagher’s, while Dengvongsa and
Shelby went to America. According to McEvoy, the chefs in
those locations requested them. He says there were no requests
for Schafer, sauté cook Derrick Thompson, and another em-
ployee, Deborah Jackson. Those were the four who were laid
off. Those who had banquet skills were kept in that capacity.
In August, Schafer answered a newspaper ad which Respon-
dent had run seeking cooks. He describes what happened when
he went to the Harmon Avenue hiring office:

I walked into the office, straight ahead to the receptionist,
and told her that I was formerly employed by ARK. If—I
got laid off for reduction of staff, if I needed to fill out an-
other application. She says, “Let me check.” Another
ARK LAS VEGAS RESTAURANT CORP. 1299
lady, Lady Number 2 came out, asked me my name, and
said she would call the chef. And several minutes went
by, a third person came out and says they weren’t hiring
cooks. So I looked to the side of me, there was a sign on a
board stating the different positions that were available,
and the last job was [sic] cooks. And I asked her what that
meant. She says it meant pastry cooks.

I find it curious that if Respondent was hiring only pastry
cooks, that the advertisement and the wall notice in the office
did not refine the request to say so. The skills are quite differ-
ent and Respondent’s hiring office would not want to waste its
time dealing with cooks who were not qualified to perform
pastry work.
Why has Respondent chosen these two individuals for layoff
when it closed down the swing shift? Was it because they wore
union committee leader buttons or were they just caught up in
nondiscriminatory circumstances as the shift was dispersed?
Respondent’s explanation is that Aguilar, although a day-shift
employee who worked for America, rather than room service,
was nonetheless a victim of the reduction-in-force. It contends
that as a new hire he was not as familiar with the menu as the
others who were kept on, but transferred.
The problem with Respondent’s defense with respect to
Aguilar is that it laid him off for a reason which can only be
described as “for cause,” failure to pass the 90-day introductory
period. If that is the reason given on his personnel action form,
why then aren’t there incidents to support it? His work record
appears exemplary and no one contends otherwise. If he was
laid off for business reasons and without any fault on his part,
why does Respondent suggest it was for cause, when the others
who were laid off during the closure of the swing shift were
told the true reason, reduction-in-force. Thus Respondent has
presented inconsistent reasons for letting Aguilar go. Clearly
the reason which it placed in his file was false. That being the
case, it seems to me that the General Counsel’s prima facie case
stands unrebutted. Having given a false reason, it now seeks to
add a second reason, which is more difficult to prove. At least
as likely a motive for the decision was the fact that Aguilar, a
relatively new employee, had the temerity to begin wearing a
union committee leader button and an easy opportunity had
arisen allowing him to be folded into an otherwise lawful busi-
ness decision. Having given a false reason, I see no reason to
credit the other. I find Aguilar was unlawfully included in a
layoff having no relationship to the job which he worked.
Similarly, I am unimpressed with Respondent’s defense re-
garding Schafer. He was facially laid off for a nondiscrimina-
tory reason, the swing-shift shutdown. He is clearly a valuable
employee in all respects except for his having decided to wear
the union button. Why then, when he answered the ad for
cooks was he treated so shabbily? The hiring office never did
answer his question. He asked if he needed to file a new appli-
cation. The lady then said she needed to call the chef, whom I
presume was Executive Chef McEvoy or possibly his assistant,
Savoy. After getting an answer, she told Schafer that Respon-
dent wasn’t hiring cooks, despite the clear statement in both the
advertisements and on the hiring office wall that they were.
When that discrepancy was shown, the lame response was that
the advertisements were for “pastry cooks.” Yet no one ever
asked Schafer if he could do that, an easy accommodation
which could be and normally would be made to a former em-
ployee who had left in good standing.
I find the claim that Respondent was seeking only pastry
cooks is a false reason. If they were hiring only pastry cooks,
they would not be luring line cooks with such an advertisement.
They would have said “pastry cooks” in the ad.
What the treatment shows is that Schafer had not been laid
off in good standing—the executive chefs did not want him
back. Why not? The only reason it seems to me is because he
had been laid off for his union activities and they did not want
him to return. They lied to him in order to get him out of a
hiring track. There would be no need to do that if they had
been treating with him honestly. The manipulation he received
when he tried to get rehired, therefore, seems to me to be an
admission that he had been originally laid off for an illegal
reason. I so find. Respondent violated Section 8(a)(3) when it
laid off Schafer.
9. Clara Montaño
I have previously discussed the fact that in March EDR Head
Chef Gallegos had unlawfully attempted to make Clara Mon-
taño remove the union button which she had chosen to wear
and that Sous Chef Don Meza had banned her from wearing the
button. In this section I will deal with the General Counsel’s
contention that she was unlawfully disciplined on June 5 for an
incident occurring June 3. After the rule against wearing but-
tons was officially abandoned, she had continued to wear it.
She had also signed the March 11 letter.
The discipline seems to have begun on June 2 when EDR
chef Salvador Ortiz spoke to her. She testified, through an
interpreter, as follows:

[MONTAÑO:] He [Ortiz] said that I was banned from
talking to my co-workers, that I wasn’t supposed to talk to
anybody, not even to get their phone number or to ask
them out or go to any parties with them.
. . . .
Q. (By MR. FELDMAN): Ms. Montaño, what did
you say to Chef Ortiz, when he told you that?
A. I—I want to know why, why he was telling me
that.
Q. And what did he say?
A. He said that I couldn’t speak to anybody.
Q. Did he ever tell you why?
A. Honestly I don’t remember any more.

On June 5, EDR Sous Chef John Miller issued Montaño a
warning notice for having run out of soup on June 3. The cir-
cumstances are in dispute, but Montaño is certain that she was
not the cause of the problem. She remembers that when she
arrived at work at 10 a.m., her scheduled start time, she was
told by coworker Diana Chavez, who had begun work at 6 a.m.,
that they were almost out of soup, only three bags were left.
Chavez said Ortiz already knew about it and shortly thereafter
three more bags of soup were delivered. At some point Miller
arrived to begin his shift. At noon they were running out again
and she reported it to Miller. She says he had gotten two more
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1300
bags and was in the process of heating them up when Ortiz
noticed the problem. Irritated, he asked Montaño why there
wasn’t any soup and she told him that Miller was heating some.
Miller, overhearing, then handed her a heated soup bag to be
placed in the bin.
From her perspective, she had done what she was supposed
to do.
Ortiz denies ever telling her that she could not speak to other
employees as she described. Of the soup incident, he says he
had received a number of complaints that the EDR food bins
were too often empty and the “customers” had been complain-
ing. He and Savoy had met with EDR employees in May to
correct the problem, and this incident seemed to be a recur-
rence. He says he noticed the empty soup bin and spoke to
Montaño about it. She told him she would refill it. He asked
her a second time, and she said she’d do it as soon as possible.
At that point Miller, overhearing, handed her a full bag of soup
from the hot box, meaning that it had already been heated and
was simply awaiting delivery to the food line. From his point
of view, she should have gone to the hot box herself as soon as
the previous supply on the line had been exhausted.
Because she had failed to perform her task he issued her the
warning, directing Miller to handle the paperwork.
Inconsistently, Assistant Executive Chef Savoy testified that
the decision to warn to Montaño was the result of observations
he had made. In fact Ortiz never said Savoy had anything to do
with it. Savoy claims that the warning was for failing to keep
her station stocked. One day in early June he came to the EDR
for lunch. He says he saw five of eight food pans empty. As a
result he spoke to Montaño, saying they had just had a meeting
about empty trays. She gave the excuse that she was covering
for another employee who was on a break; to Savoy the excuse
was unacceptable. He spoke to Savoy and Miller about Mon-
taño. He also says that in the next 10 days he saw the same
thing two or three times.
Curiously, Respondent chose not to examine Montaño on the
point. It seems to me that Montaño would well remember a
mild scolding by the assistant executive chef in the circum-
stances he described. Yet Respondent made no attempt either
to attack her version or to bolster its own version through her.
It asked her no questions about the incident.
Moreover, Respondent did not to call Miller to testify about
his recollection. That failure, it seems to me, lends credence to
Montaño’s description of what happened. First, there seems to
be no reason to doubt her testimony that insufficient soup had
been prepared on the morning in question and that Ortiz was
aware of it even before she arrived. Furthermore, there is no
doubt that Miller was aware of the problem and was in the
process of solving it when Ortiz came upon it. Miller knew of
it because Montaño had told him. The delays in getting the
soup to the serving line were the principal issue, not the server
failing to place it in the bin. It was a production problem, not a
server problem.
Why then blame Montaño? Was it because she was wearing
the union pin and had signed the March 11 letter? Under her
version, Ortiz had, only a day or two before, given her some
strict instructions not to talk to employees outside work. She
was at a loss to deal with that instruction and didn’t know what
to make of it. It seems an unlikely thing for Ortiz to have said.
Yet, Ortiz’ denial did not appear credible to me either. Why
would Montaño make such a story up? The more probable
analysis is that Ortiz and Savoy had seen her consistently wear-
ing the pin and wanted to see if they could stop her from further
efforts to persuade fellow employees to join with her and the
others. An interdiction such as the one she described would
accomplish just that. Furthermore, if a paper trail could be
created to justify firing her, that would eventually work, too.
The decision to discipline her really seems to have come
from Savoy, though Miller signed the form and it is conceded
that it was issued per Ortiz’s instructions. Yet somehow, Savoy
and Ortiz could not get their story straight regarding the reason
for the warning. Ortiz said the soup was the reason and Savoy
asserted it was because of a failure to keep five food pans filled,
even adding that the problem persisted for days afterwards.
Moreover, had Miller been called as a witness, it seems likely
that he would have supported Montaño’s version and therefore
demonstrated that she had done what she was supposed to do,
reported the matter to him.
On balance, the evidence favors the General Counsel. Mon-
taño was the victim of three Section 8(a)(1) violations, two of
which clearly were aimed at her button wearing and the third
having the same purpose, to stop her from speaking to fellow
employees. When an incident occurred in her work area, Re-
spondent decided to blame her falsely for it.
As a result, I am compelled to find that Respondent violated
Section 8(a)(3) when it issued her the warning on June 5. It
had a clear tendency to weaken her hire and tenure of employ-
ment because of her union activity, button wearing, letter sign-
ing, and a perceived willingness to speak to others off the job.
10. Jennifer Durham
Jennifer Durham was hired on March 11 as a cashier. About
2 weeks after her hire she began wearing a “union yes” button.
The manager of the Village Streets at the time was Millie Stew-
art; her assistant was Philip Mathews.
On June 26 Respondent discharged Durham for mishandling
funds. The incident occurred shortly after Respondent had dis-
covered several employees had figured out a way to embezzle
money from their cash drawers. At least two employees had
been fired.
Respondent operates a computerized cash register system,
which involves centrally logging on and off the system. Even
so, the register can still be operated when logged off. Respon-
dent requires that each transaction generate a customer receipt,
which even if issued when the register is logged off, will even-
tually be transmitted to a central computer known as the Info
Genesis Bank, which tracks all transactions.
The theft ring had figured out that if one rang up a sale,
made the change and then voided the transaction that they
could pocket the difference at the end of the shift. Durham’s
transgression closely paralleled that tactic.
On the day she was discharged, Durham was at a cash regis-
ter in one of the fast food outlets. One of the managers, Stew-
art, thinks the incident occurred at the Brew Pub, and it is un-
clear from the record if the Brew Pub is on the Village Streets.
In any event, a customer had purchased some chili valued at
ARK LAS VEGAS RESTAURANT CORP. 1301
$2.75. Mathews, making his rounds, observed some napkins
fly off the customer’s tray and, while helping the customer,
noticed the absence of a receipt. He went to Durham and
punched the “last receipt” command on her register and saw
“two sodas.” He asked her why there was no receipt and she
explained she had accidentally logged off and when she made
the sale, the register had not generated one. Suspecting a theft
attempt, he telephoned Stewart and then pulled Durham’s cash
drawer for the purpose of making a count.
Their review of the situation determined that the drawer held
a $2.75 overage and no evidence that a chili sale had been
made. Double checking with the Info Genesis Bank led them
to the same conclusion. No sale had been entered into the cash
register, but the drawer contained an overage in the exact
amount of the chili.
Durham’s explanation:

Q. [By MR. FELDMAN]: Okay. What happened—
what happened after the gentleman ordered the chili bowl?
A. Uh—I tried to ring it up, and then I press wrong
button, and then it went to logged on or logged off, since I
was logged on, I pressed logged off, and it said “Confirm,
yes or no” and I press “Yes,” that’s when the cash register
opened.
Q. And these are—these are buttons on the cash regis-
ter?
A. Yes.
Q. Could you take us through that procedure a little
slower? When the man ordered the chili bowl, do you re-
call what—which button you pushed?
A. I don’t remember what button, because I press—I
accidentally press a button which I don’t know which one.
Q. And what—what displayed, on the cash register,
after you pushed that button?
A. It went to “Logged on or logged off.”
Q. Okay. And what did you do then?
A. Since I was logged on, I pressed ‘logged off.”
Q. And then what happened?
A. And then it went to “Confirm, yes or no.”
Q. And what did you push?
A. “Yes.”
Q. Okay. What happened then?
A. That’s when the cash register slid open, and—
Q. What happened after the cash register—is that the
cash register drawer?
A. Yeah.
Q. What happened then?
A. I put the $3 in there, and gave the man 25 cents, his
change.
Q. Okay. So the gentleman gave you three dollars?
A. Yes. [Transcript corrections shown]

She doesn’t really dispute the fact that the register held the
$2.75 and Respondent doesn’t really claim that she had yet
stolen any money. Even so, her handling of the matter requires
some explaining. Assuming that she had pressed some button
accidentally, she says the register asked her if she wanted to log
on or off. She chose to “log off” because she knew the drawer
would open and she could make change.14
Yet both Mathews and Stewart point out that whether one is
logged on or off the register will operate so long as the drawer
is open and will still generate a receipt. That receipt is in both
paper and electronic form. The electronic version can be called
up and reviewed on the register screen. None was found to
have been generated. Thus, whatever Durham’s explanation
may be, her logging on and off the system, doesn’t answer.
Accordingly, I find that Respondent’s version here is the
more credible of the two and therefore reject Durham’s version
as nonresponsive to the cash handling procedural error.
The next question is whether or not Respondent treated Dur-
ham more harshly than it has treated others. It is difficult to
find disparate treatment here even where there is at least one
person who was not discharged on the spot for what might be
characterized as a similar cash handling error. That is because
Respondent was still smarting from the discovery, only a week
or so before, of the embezzling which had been occurring. In
this circumstance, I am unable to conclude, under the Wright
Line doctrine,15 that Respondent would not have taken the ac-
tion it did had Durham not worn a union button. Clearly it
would have taken the same action, union button or no. The
General Counsel’s observation that the amount of money in-
volved is too small to be of any concern is misplaced. If the
procedure worked once to create an overage which could be
pocketed, it would work numerous times and the small
amounts, undetected, could add up over time.
This allegation will be dismissed.
11. Roger Trude
Roger Trude was hired January 21 as a porter in the Village
Streets, generally working as a cleanup person during the day.
He began wearing a union “solidarity” pin daily at some point.
The complaint alleges that on July 3, production chef Arvy
Dumbrys violated Section 8(a)(1) in two ways: first, by attack-
ing Trude’s attitude for wearing the union button and second,
by inviting Trude to quit in hostile terms related to the pin-
wearing. Dumbrys agrees they had a conversation on that day
but denies both charges and offers a contrary version. The fact
pattern here presents a wide credibility divergence. I credit
Dumbrys in the circumstances.
Trude’s testimony is short and almost too succinct:

[TRUDE]: About five o’clock, while I was doing my
run upstairs, near the deli—uh, a steward named Junior
came up and said that he wanted to talk about schedules
to—so I should go down to Chef Arvy’s office.
So I went to Chef Arvy's office. And I was asking
about the schedules. Then when I came in—uh, he said
“Uh, why are you coming in here with this attitude?” I

14 All agree that it is normal for the drawer to open when one logs
off. The purpose is to allow the cashier to remove the tray at the end of
a shift. When the drawer is shut thereafter, it cannot be opened again
until someone logs on.
15 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); also NLRB v. Transportation
Mgt. Corp., 462 U.S. 393 (1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1302
didn’t say anything. Then he said, “Come in and sit
down.”
Uh—then he—he then continued—uh, “why are you
gonna—basically, with this attitude,” then he—uh, told
Charles to shut the door, then—uh, Wendy Washington
was outside the door, so—
Q. [By MR. FELDMAN]: Okay. So she was not pre-
sent in the conversation?
A. No. She was outside the door—
Q. Okay.
A. —when he shut the door.
Q. Okay. What was said then?
A. Uh—he said, “I heard you’ve been talking bad
about the Company.”
Q. That’s what Chef Arvy said to you?
A. Yes.
Q. Okay. Did you reply?
A. Uh—no, I did not reply.
Q. Okay. What did he say then?
A. Uh—“With that attitude, why don’t—why don’t
you go home”—uh, then he pointed to my union pin,
okay?
Q. What did he say when he pointed to your union
pin?
A. “Why don’t your union get you another job? Why
don’t your union get you another job if you don’t like it
here?”
Q. Anything else said?
A. Uh—I said ‘I was looking for work.” Uh—he said,
“Are you looking for work?” I said “Yes.” Then—uh, he
said—uh, “You know why you can’t find work? Because
you have no skills and you can’t find work anywhere
else,” that’s why I’m working at ARK.
Q. Did you respond?
A. Uh—no.

On cross-examination Trude contradicted himself in at least
one significant manner. He conceded that Dumbrys told him he
was doing a good job:

[By MR. TAYLOR]: Did Chef Arvy to speak to you
about your work performance, during this meeting?
A. Work performance?
Q. Yeah? I know you talked about your scheduling—
A. Oh, yes, yes. He—uh—
Q. Yeah, he did, didn’t he?
A. Yeah, he said I—I was doing a good job, I came on
time and that I did my work.

Dumbrys has an entirely different take on the interview,
which he, too, says was short. According to him, a sous chef
had told him that several employees had told him that Trude
was saying bad things about the Company. Dumbrys says he
always addresses such matters and decided to call Trude to the
office to find out what was happening. Dumbrys denies that
the Union was discussed or was ever a consideration in any
way (he couldn’t remember whether Trude was even wearing a
union pin) and says the entire focus was on determining
Trude’s attitude toward his work. Dumbrys’s testimony:

[DUMBRYS]: . . . And I said, well, right now we’re
getting some unofficial reports that he’s been basically
talking about the management in a very negative fashion,
and also of ARK, in general. And I asked him if he has
done so, and he said no.
And I told him, “Well, we’re not going to sit here and
decide whether or not you did or you did not, but let me
just tell you that if you, in the future, ever do decide to do
this, or if you ever know of anybody else, please bring it to
my attention, because it’s something that we do not con-
done within the ARK properties.”
I also asked him if he was unhappy with the position
that he’s at, if he would ever be interested in being pro-
moted to a food handler, and—
Q. [MR. TAYLOR]: What position does he hold—
did he hold then?
A. Dish utility right now. And the next step up, in or-
der for a promotion, would be to a—something equivalent
to a food handler.
Q. All right. What’d he say to that?
A. He said, at this point in time, he's happy where he
is . . . .

The main point on which they agree is Trude’s admission on
cross-examination that Dumbrys told him he was doing good
work. Dumbrys’s direct testimony that if Trude was unhappy
with his current position, he would consider promoting him if
he wanted is consistent with a positive attitude towards Trude.
On the other hand, Trude’s testimony is internally irreconcil-
able. He said on direct that Dumbrys was so upset with him
that he told him to find another job if he was so unhappy, punc-
tuating that with a challenge to the effect that the Union should
get him another job, but since he was so unskilled he wouldn’t
be able to find one.
Frankly, Trude’s direct testimony is not believable. Dum-
brys would not insult and antagonize him so strongly and then
immediately tell him he’d been doing a good job. I think the
latter is true, that Dumbrys did tell him he was doing a good job
and if he was unhappy with the one he was doing, please let
him know because he could arrange a promotion to food han-
dler. Having made that finding, it would be illogical to credit
the remainder of Trude’s direct testimony.
Accordingly, I find that Dumbrys did not say what Trude at-
tributed to him. Specifically, I do not credit Trude’s testimony
that Dumbrys attacked his attitude for wearing the union pin
nor do I credit his testimony that Dumbrys invited him to find
another job. This allegation will be dismissed.
12. Jesús Serna
Jesús Serna was hired on May 1 as a lead dishwasher cover-
ing graveyard shift dishwashers. He worked from 11 p.m. to 7
a.m., 4 days a week. His immediate supervisor was Valerio
Rodriguez, the head steward. Because Rodriguez worked days,
they did not see each other except at the shift change in the
mornings, about 6 or 7 a.m. Within days after he was hired
Serna began wearing 16 or 17 union pins on his uniform jacket
every day he worked, except Tuesdays when he didn’t wear the
jacket because he was cleaning the hoods, very dirty work.
ARK LAS VEGAS RESTAURANT CORP. 1303
The complaint alleges that Rodriguez created the impression
of surveillance and unlawfully interrogated Serna in the eve-
ning of July 29 and then the following morning, July 30, dis-
charged him because of his union sentiments. Respondent
argues that Serna was insubordinate in several regards, includ-
ing belittling Rodriguez and refusing to carry out some direct
orders. Serna denies doing both. As a result of his supposed
lack of respect for the supervisory hierarchy, McEvoy made the
decision to let him go for failing to pass his 90-day introductory
period.
In the early evening of July 29, the Union held a mass rally
in front of NY-NY. According to Serna, and not really dis-
puted, “thousands” of union members gathered in front of the
hotel to ask Respondent to recognize it. About 15 of Respon-
dent’s employees attended, including Serna. Afterwards, he
reported to work in the America dishroom. A short while later,
he had occasion to go to the Gallagher’s dishroom. When he
arrived, he saw Rodriguez speaking to a female dishwasher
assigned to that room. Serna does not know her name.
According to Serna, Rodriguez asked her something to the
effect, “‘[W]hy she not go to the rally to see me screaming’
and—uh, my answer was—uh, ‘Well I’d do it again for better
life and better supervisors, you know.’”
At the end of his shift, about 6:30 the next morning, Rodri-
guez called him to the office and discharged him for failing to
pass the 90-day introductory period. When Serna asked him to
be more specific, Rodriguez told him he didn’t have to give
him a reason.
Rodriguez did recite some instances of poor performance
and a failure to follow a direct order resulting in assigning a
clean-up job to the following shift. Yet, I am more troubled by
the timing of it all. In viewing Serna as he testified, it is clear
that he has a prickly personality. Moreover, he admitted think-
ing little of Rodriguez, believing at one point that he did not
have to take directions from anyone but the graveyard chef. He
thought Rodriguez operated the graveyard shift understaffed
and told the graveyard chef his view.
Still, the timing of his discharge is nearly overwhelming, fol-
lowing his attendance at the rally by only 12-½ hours. Fur-
thermore, there is the matter of the statements made to the fe-
male dishwasher.
The General Counsel argues that the remark created the im-
pression of surveillance and constitutes some sort of coercive
interrogation. I am not persuaded. Serna had gone to the rally
in full view of anyone who wanted to look. Indeed, it was such
a public matter that “surveillance” seems to be an antilogy in
the circumstances. The Union was pleading for the world to
look and listen. That Rodriguez observed what was happening
can be no surprise.
Later, when he made his remarks to the other dishwasher, it
seems to have been made in a manner designed as banter or
man-to-man repartee rather than anything meant seriously.
Serna had been out in front of the NY-NY making a lot of
noise. Moreover, as usual, he was wearing his jacket covered
with union buttons. He was a natural target for such banter.
Certainly no threat was uttered and no coercion of any other
nature offered. Indeed, Serna responded in kind. He said he
was demonstrating for a better life and better supervisors. Even
if Rodriguez knew Serna actually meant the latter, he took no
offense. He knew if you give banter, you get it back. This
entire incident is not probative of any unfair labor practice.
This leaves the timing and the after-the-fact-memo written
by Rodriguez on July 31 at McEvoy’s instruction. In fact there
is no documentation supporting any of the perceived shortcom-
ings which Rodriguez cited in the memo. Indeed, Rodriguez
testified it was not his intention to discharge Serna, even though
he regarded him as an annoyance. It was not until he spoke to
McEvoy that the decision was made. Curiously, Rodriguez
says his conversation with McEvoy when the discharge instruc-
tions were given was about 10 days earlier, somewhere be-
tween July 20 and 23. If that is so, why didn’t the process take
place around that time instead of on July 30, 12-1/2 hours after
Serna attended the rally? In that situation, I am obligated to
find that no decision to discharge him was made until he was
seen at the rally, probably by both Rodriguez and McEvoy,
who all agree really made the decision.
I think it is fair to say that Serna did display some shortcom-
ings. He is opinionated and thinks he can do the job better than
Rodriguez. Yet Rodriguez didn’t mind Serna’s personality.
Insofar as Serna’s multiple failures to perform his duties are
concerned, if they happened, they were not regarded as signifi-
cant. If they had been, Rodriguez or someone else in the
managerial hierarchy would have counseled Serna. Nothing
like that occurred and it is doubtful that such items, even if they
happened, had any bearing on the decision to discharge him.
They are simply an after-the-fact-justification, a means to con-
ceal the real reason. Serna was a vociferous pin-wearer. I find
his discharge to have violated Section 8(a)(3) of the Act.
13. Maria Guadalupe “Lupe” Carillo
Lupe Carillo is a fry cook at GYG on the day shift, having
been hired in December 1996. She signed the March 11 letter
and began wearing the “union committee leader” button daily
shortly thereafter.
The complaint raises three issues regarding Respondent’s al-
leged treatment of her. The first is a warning on June 5 for
failing to call in 4 hours prior to an absence from work. The
second is whether in August or September Chef Sergio Salazar
threatened to prevent her from getting a job with another em-
ployer, the Motown Café. The third is whether Salazar on Oc-
tober 2, shortly before the hearing in this matter began, made an
unspecified threat to influence her testimony before the Board.
Even before the first incident alleged by the General Counsel
to be unlawful occurred, Carillo was in some trouble. On Au-
gust 3 she had volunteered to cover a shift for an employee
named Salcedo, but failed to come to work as promised. On
August 4 she didn’t come to work either. On August 5 Sous
Chef Roberto Arriola gave her warnings about both matters.
(R.Exh. 9 and G.C.Exh. 25.)
The warning which the General Counsel asserts is violative
is for the August 4 absence, which recites that she didn’t call
about a needed absence until 8:30 a.m., when her scheduled
start time was 8 a.m.
On that morning, she says, she had to obtain an identification
card for her daughter so she could go to work. Then, her hus-
band’s car broke down so she called Salazar at home between
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1304
6:10 and 6:15 a.m. She explained the situation to him and says
Salazar gave her the day off. But since it was his day off, he
told her to call chef Roberto [Arriola] to advise that she
wouldn’t be in. She agreed. She says she did so a few mo-
ments later, learned Arriola wasn’t there and left a message
with someone.
Salazar testified: “She called me in the morning, about six
forty-five, six forty, and she woke me up, and she asked me if
she can take the day off. And I told her that that was my day
off, and I won't be at work, so she’s got to check with my assis-
tant. That (sic) [If?]he gave her the day off, it will be fine for
him, but she’s still got to call my assistant and ask him for the
day off.”
Arriola denies that she called him at that time. His warning
notice shows that she called half an hour after her shift started,
although when he testified, he thought it was as late as 10 a.m.
He observed that he has a pager which he carries all the time
and that all of the employees in his department, including
Carillo, have been given the number. He says she did not call
the pager that morning.
Frankly, I must disbelieve Carillo here. She asserts that Sa-
lazar gave her the day off. That seems most unlikely since he
was not scheduled to work that day, was unaware of the man-
power needs that morning, and had left those decisions to Ar-
riola. His version, therefore, seems much more likely. Thus, I
find that he told her to call Arriola and for some reason she did
not do so until sometime after her start time.
Her explanation, that she needed to assist her child with an
ID card matter hardly qualifies as an emergency and thus Re-
spondent’s rule about calling in 4 hours in advance seems to
apply.16 Even if the car broke down within the 4-hour period,
the obvious question is why she called Salazar at home. Re-
spondent has a procedure by which absences and latenesses are
to be handled. She should have been calling the office where a
substitute could have been timely arranged. She clearly used
poor judgment here and, combined with the unexcused absence
the day before, it was improbable that her conduct would es-
cape notice. Counseling or discipline was in the offing.
I conclude, therefore, that the discipline would have occurred
whether or not she wore a union pin on a daily basis or had
signed the March 11 letter. It is only a counseling, not a warn-
ing, and is a tempered response to her conduct. This portion of
the complaint will be dismissed.
Carrillo says sometime in September she spoke to Salazar
about getting another shift. When he told her he could not, she
said, conspicuously snippily, “Fine, because I had gone and
looked for work—uh, at the—uh, over at the Motown Café.”
She went on:

Q. [By MR. FELDMAN] And what did he say?
A. Uh—jokingly, he said that, by only looking at the
button I was wearing, they would shut the door, you know,
in front of me.

16 The General Counsel cites an incident involving Robert Jackson
who called in less than 4 hours before his shift and who did not suffer
discipline. In Jackson’s case his wife had become ill and had to be
taken to the hospital. There is no comparison to the two cases. Jack-
son’s was a true emergency; Carillo’s was not.
Q. Did he say anything else?
A. Well, no. He was laughing.

Then, according to her, he said he would rather be dead than
join the Union.
Salazar denies making the “rather be dead than join the Un-
ion” remark, and puts a different cast on the Motown Café dis-
cussion. He thinks it was in August. He is a personal friend of
the chef at the Motown, and Carillo seemed to be aware of it.
According to him, she asked if he would help her get a job
there, and he simply told her he would see what he could do.
He denies saying anything about her button and denies saying
the Motown would shut the door in her face. He does agree
that he did not contact his chef friend about her, explaining that
after his conversation with her, he remembered that his friend
had told her that the Motown wasn’t hiring, so he thought it
would be a waste of time.
The hearing in this matter opened on Monday, October 6.
Carillo says that on the previous Thursday [October 2], she
went to him to ask for some time off for a hearing. She testi-
fied:

I told Sergio that I was—that I had a court date, and I was
going to tell what he had explained to me. And he an-
swered—uh, there we would be telling the truth, we
wouldn’t be adding nor leaving things out, that if I—that if
I made any mistakes I would be automatically—uh, termi-
nated from my place of employment.

Salazar’s recollection is different. He says it happened a
week or so earlier and that he had come into a work area during
the middle of a conversation between Carillo and another em-
ployee named Antonio. He remembers that she sounded wor-
ried in some way. She seemed to wonder out loud if “if she can
change something, but I didn't even know—I wasn’t really sure
what they were talking about, but she can change something
about a—something about a court, or a federal thing, or some-
thing, something like that.”
He said she went on: “[S]he mentioned something about—
about lying, or about changing a version, or something like that.
And she said—well, I told her—she asked me, I said, about the
version, or something. I said I didn’t even know what you guys
are talking about. I mean, if you guys—court, I mean, court is,
I mean, is serious, I mean, but even if I’ve never been in court,
this is the first time. I’m not saying it's some—I know that
stuff is serious. I mean, if you guys lie, or something, I mean, it
might affect you, or—I mean, it won't look good on you, no.
[you know.]” (Transcript correction shown.)
He continued: “She didn’t tell me that she testified, or some-
thing, but the only thing, it was something about—because she
wasn’t really talking to me, she was too—too—she was talking
to Antonio, but she was looking at me, and then she—I mean,
she looked at me like—like she was talking to me. And, all I
said was that their [they’re]—if she lies, or something, or if she
doesnt say the truth, that may affect her in some [manner]—I
mean, that that was it.” (Transcript corrections shown.)
From his perspective, he was unaware that she was speaking
of an NLRB hearing; he thought it was a court date, naturally
thinking of action in a local court. Moreover, he was entirely
unaware that she was talking about a transaction between them.
ARK LAS VEGAS RESTAURANT CORP. 1305
In analyzing the latter two incidents as well as being mindful
of the first, it is apparent to me that Carillo has a manipulative
feature to her character. She is willing to play with facts. She
distorted what Salazar had said with respect to whether he had
given her the day off in August and she admits that she told
him, after she had asked for another shift, that she had already
sought work at the Motown, even though that was not true.
Thus, I am not willing to credit her claim that Salazar told
her the Motown would shut the door in her face if she wore the
button or that he’d rather be dead than join the Union. Fur-
thermore, I don’t believe her testimony that he threatened her
with automatic discharge if she didn’t tell the truth before the
Board.
In reviewing the testimony of both witnesses, I find Salazar’s
to be the most probable and therefore the most credible. He
didn’t know what she was talking about and only gave a gen-
eral, common sense answer about telling the truth in court when
she seemed to draw him into a conversation she was having
with someone else (again, a sign of a willingness to manipu-
late). He certainly had no idea regarding what “court” action
was involved. Any reference he appears to have made about
lying in court was to the effect that if one lies in sworn testi-
mony, one can get into trouble—most probably with the out-
come of the case or with court itself. His version makes the
most sense, is noncoercive in the context and is credited.
Therefore, I conclude that the General Counsel has not pre-
sented a creditable version of the facts and this portion of the
case should be dismissed.
14. Bernardino Hernandez Cruz and David Hernandez
Bernardino Hernandez Cruz (Bernardino) and David Her-
nandez (David) are father and son, respectively. Bernardino
works as a dishwasher at America, while David is a bus person
at America. The operation is big and they do not work near
each other. Bernardino speaks very little English; David, on
the other hand, is fairly fluent. Both of them wore union com-
mittee leader pins on a daily basis.
The complaint alleges that Respondent unlawfully interro-
gated Bernardino in May and then “disciplined” him August 9
by suspending him for 3 days. It also asserts that it “disci-
plined” David on August 25 by suspending him for 4 days.
Both suspensions were allegedly because they wore union pins.
Respondent contends that it did not interrogate Bernardino in
any way and that the suspensions were for good cause: that
Bernardino was not following the direct instructions of his
manager, Valerio Rodriguez, and that David, upset with the
treatment of his father, made threats against Rodriguez which
warranted the discipline.
Bernardino testified that in early May he was called to the
office. He says David and three managers were present, includ-
ing his immediate supervisor, Valerio Rodriguez, Sous Chef
Mike Siwiec (sometimes called “Sedgewick,” due to
pronunciation), and Executive Chef Damien McEvoy. David
seems to have served as a translator.
Bernardino says that Siwiec and McEvoy asked him if he
really was a leader for the union. He says he did not respond.
He did not testify about anything else which may have occurred
in the meeting.
Siwiec testified that he attended the meeting at Rodriguez’
request. He also says that McEvoy was not present. He said:
“Valerio asked me in to witness and explain to Bernardino what
his job activities are and performances, his duties in the kitchen
are . . . .” He remembers telling Bernardino that “Valerio is his
supervisor” and that’s all he said. He specifically denies asking
if Bernardino was a union committee leader; in fact he denies
that the union was mentioned in the meeting at all.
Siwiec’s testimony makes sense only if understood in the
context that Valerio Rodriguez was having difficulty getting
Bernardino to do the work he was assigned and that Bernardino
did not want to take directions from him. Rodriguez does not
describe the May meeting specifically, but he does describe the
problem he faced in another incident, apparently in June or
July:

(By MS. WASIELEWSKI): . . . Now, tell us what you
asked Mr. Bernardino Hernandez to do?
A. To get a dry mop and clean the spill in the middle
of the—of the dining room.
Q. Okay. And what did he say?
A. He said he don't have time to do that.
Q. And what did you say when he said that?
A. I said that—that he—he—he’s doing the shift and
he can try to make it. He—he runs out of time it’s okay,
but before he does anything, he starts, you know, com-
plaining.
Q. He started what? I’m sorry.
A. Complaining.
Q. Complaining?
A. Yeah. There was not enough time and he was too
busy, stuff like that, and he didn't do it.

With respect to the May incident, I find it curious that Ber-
nardino’s son David did not testify about it. Presumably he
was there either as a translator or to assist his father. Yet he did
not testify about the “interrogation” at all. Had it occurred, it
seems highly probable that he would have corroborated Ber-
nardino. He did not. Furthermore, Siwiec’s testimony makes a
great deal of sense. It is clear that Bernardino has difficulty
accepting directions from managers. Bernardino even supports
that conclusion; he did not want to take orders from Valerio
Rodriguez:

(By MR. TAYLOR) Okay. And at that time you
asked Mike [Siwiec] whether who—who was in charge,
either he or Valerio? Just—was—you can just answer yes
or no on that.
[HERNANDEZ CRUZ]: Valerio.
Q. I’m sorry. Did you ask Mike—let’s get this
straight first. Did you ask Mike who was in charge of the
restaurant, either Valerio or Mike?
A. Yes—
Q. Yes. Okay. And what did Mike—
A. —I asked.
Q. I’m sorry. What did Mike reply to that question?
A. He said, “Go to Valerio, he’s the one ordering
around, he’s the supervisor.”
Q. Did you tell Mike, at that time, that “I do not want
Valerio to talk to me again”?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1306
A. Yes, I did.

On August 9, Bernardino was again called to the office.
David was there again, as was a chef named Jeff, Rodriguez
and dishwasher lead Darrell Jackson. He says he was issued a
3-day suspension for refusing to follow a direct order to clean
up a sink. Rodriguez’ suspension notice does not mention the
sink, but refers instead to Bernardino’s refusal to follow a direct
order to refill paper and soap dispensers, responding “if I got
time I will do it,” followed by a second reminder, but leaving
work without having done the task. An entry on the document
(made by someone else) references the conduct as “insubordi-
nation.” Rodriguez’ more detailed testimony which I shall not
recite fully supports the suspension notice.
Bernardino asserts that he did do the sink, but it was later
than asked, admitting that he never told anyone that he had
done so.
It is clear to me that this individual was not performing well
and was engaged in some sort of passive resistance to directives
issued by managers, particularly Rodriguez. It may be true, as
the General Counsel asserts, that he was given some conflicting
directions from time to time by different supervisors. If that
occurred, however, he did not inform those supervisors of the
conflict, but only chose to do what he thought was important.
He did not communicate well, perhaps because of the language
barrier, but more likely because he didn’t like being told what
to do, by Rodriguez or anyone else. Such behavior will not go
unnoticed for long. Clearly whatever discipline was levied upon
him had nothing whatsoever to do with his wearing a union
button.
David’s circumstances are a little different. He is a far more
responsible employee. He is generally respected by his manag-
ers and seems to do a good job. Even so, on August 25 he re-
ceived a suspension “pending investigation” which lasted 4
days. On that day McEvoy called him to Joe Albanese’s office
at America to give him the notice. McEvoy asked David if he
knew why, and David replied he did not. McEvoy said it was
because he had made a threat against Rodriguez 2 weeks previ-
ously. David denied making such a threat. It should be ob-
served that is the time frame in which Bernardino had received
the suspension.
David says that 2 weeks before his own suspension his father
had told him that “people” (meaning Rodriguez and his assis-
tants, probably leads such as Darrell Jackson and Martin Del-
Rio) had been harassing him. As a result David decided to take
some steps to protect his father.
This was not the first time. DelRio testified that earlier, on
May 20, David had come to him to tell him to stop moving his
dad around from place to place, because “there would be prob-
lems.” DelRio explained that he was sorry to have to do that,
but he was short of people and he had no choice. DelRio says,
in retrospect, that he regarded that as a threat, but I do not so
perceive it and I do not think he did at the time either. Still, a
reference to “problems” while vague, is open to such an inter-
pretation, given the right context. (It might have only referred
to the possibility that Bernardino might cause problems if so
treated, not that David would.) Even so, the incident shows
that David will step up to defend his father from perceived
mistreatment, whether true or not.
On August 11, David testified he went to Rodriguez and: “I
told him that—to stop harassing my Dad. And then after that, I
just paused for a second, and I told him, “You know what, I
don’t know what (sic) I’m gonna do anything, but I don’t know,
then I just walked away.”17 He then told America manager Joe
Albanese what he had just done, and Albanese told him not to
do anything dumb.
McEvoy asked him to provide a written statement of his own
describing what had happened. He provided R. Exh. 1 dated
August 25: “It was Tues. nite and my father told me the nite
before that Valerio & other ass’t. mgrs. of Valerio keep telling
him that they’re hassling him, so I went to Valerio told him that
if he keep messing with my dad that I was going to . . . . Then I
pause[d] and told him that I did not know what I was going to
do!” [Edited for spelling and clarity.]
The General Counsel asserts that the remarks, whichever
version is credited, do not constitute a threat and therefore do
not deserve any discipline. I do not agree. It clearly started out
as a threat, and just as clearly David recognized that he was
going too far and stopped. In my view the threat was uttered
and then dampened, probably by chagrin or a sense of wrong-
fulness.
In fact, I think it is fair to say that Rodriguez observed
David’s chagrin and realized that the threat was not as serious
as it could have been. Eventually, of course, it all got to
McEvoy, who did not view the matter charitably. I recognize
that McEvoy is willing to target union button wearers for dis-
charge, yet I do not think that was his concern here. He knew
that Bernardino and David were father and son and he knew
that David was for the most part a reliable employee. It even
appears that Albanese was willing to stand up for David. No
one wanted to discharge him. Even so, from a manager’s
viewpoint one cannot ignore threats, no matter how minor or
short-lived, made against a fellow manager or employee. Vio-
lence in the workplace needs to be nipped in the bud. Respon-
dent’s short suspension of David was a tempered response to a
potentially much larger problem. It cannot be seen as a dis-
criminatory act, but one aimed at correcting and ending a
potential trouble spot while at the same time keeping a valued
employee. These two allegations will be dismissed.
15. Sandra Jordan
Sandra Jordan was hired as a busser for America on April 2,
according to General Counsel Exhbit 24, although she testified
it was around March 1.18 She was discharged on May 27 and
the assigned reason was that she had failed to pass her 90-day
introductory period. The General Counsel asserts that she was
discharged that day because she had begun to wear a union
button. That has been discussed to some extent in section B
supra.

17 His version on cross-examination is actually a bit stronger: “I told
him, ‘Valerio, please stop hassling my Dad, I’m getting tired of it, and I
don’t know what I’m gonna do anymore.’”
18 The April time record shows she worked 8 hours on April 1. She
may have meant April 1 rather than March 1.
ARK LAS VEGAS RESTAURANT CORP. 1307
May 27 was the Tuesday following the May 26 Memorial
Day Monday. Although Jordan’s NLRB affidavit says she had
met with some fellow employees on May 26 and they had all
agreed to wear union buttons on May 27, she corrected herself
on the stand to say that the meeting had actually been the pre-
vious Thursday, May 22. She says she was not scheduled to
work on May 25–26 and was not at the hotel those days to have
made such an agreement.
She says that on May 27, while she was making coffee, Bob-
bie Rihel, her supervisor, came to her and demanded that she
remove the button. Jordan refused, saying it belonged to a
friend and she had to give it back to her. Shortly thereafter,
Rihel took her to the office and discharged her, saying work
was slow and they didn’t need her any more. She was being
chosen because she was the new hire.
Rihel denies having done or said anything about the button.
She observes that the Company had earlier revoked its ban
against the button. She asserts that Jordan was discharged after
a series of shortcomings had become known to America’s su-
pervision.
There are several items to which she and Respondent point
in support of the decision to let Jordan go. These range from a
misguided attempt to promptly supply a customer with addi-
tional scoop of butter by getting some from another table (April
27) to taking a gratuity from a table and giving it to a dish-
washer (May 7), to eating food outside the kitchen (May 14), to
not following “standards” in removing dishes/condiments from
the tables (May 17). Jordan denied the incidents involving the
butter and the gratuity ever occurred. She was not asked about
the others.
In addition, Respondent accuses Jordan of several no-call,
no-shows. It has presented material which shows she was a no-
call, no-show on three occasions: May 12, 13 (R. Exh. 24), and
25 (R. Exh. 23). Yet the Kronos records show that Jordan was
at work on May 12 and 13 and that she did not normally work
on Sundays such as May 25 (she says she was not scheduled
that day). Respondent’s explanation that the Kronos records
may have been off-line on one or more of those days and en-
tries presented manually is not credited. Respondent has a very
strict no-call, no-show policy. If she had been absent, an inde-
pendent investigation would have been conducted and she
would have been discharged on the spot if the investigation had
not uncovered some legitimate excuse. To the extent that there
may have been an “absence” problem, it seems to have been
caused by a problem with the sensor reading her ID card. Jor-
dan says Rihel issued her a second card after Rihel asked if she
was having trouble with hers. Rihel says she did not issue Jor-
dan a second card, but Jordan presented both cards at the hear-
ing; Rihel may not remember doing it, or it may have been
delegated. Either way, Respondent’s reliance on Jordan’s at-
tendance records as a reason for discharging her is unsupport-
able.
Insofar as the relative credibility of the two versions is con-
cerned, I find Jordan’s to be the more believable. This is not to
say that she was trouble free in performing her job. None of
the incidents, if they occurred, rose to the level where a written
warning or counseling was deemed necessary. She denies them
altogether, but if they occurred, they were not regarded as par-
ticularly damning.
What seems of greater significance is Rihel’s and Respon-
dent’s raising what appears to be a false reason for the dis-
charge, the invocation of the no-call, no-show rule in the face
of records and practice to the contrary. That seems contrived
and is therefore evidence that Respondent is overly eager to get
rid of Jordan. Indeed, it seems to be willing to manufacture
evidence justifying the discharge.
In that circumstance, I find it easy to credit Jordan’s descrip-
tion of the events leading to her discharge. She wore the button
for the first time that day; Rihel tried to get her to remove it,
became frustrated over her failed effort, and decided to dis-
charge her. In that circumstance the discharge violated Section
8(a)(3) and (1) of the Act.
In response to Respondent’s argument that Rihel wouldn’t
have concerned herself with an employee’s choosing to wear a
union button after the rule had been changed, I can only say the
actual evidence is otherwise. The number of negative re-
sponses to employees who wore buttons after the rule had been
changed only suggests to me that the revocation was a sham.
Respondent simply chose other, more oblique, means to en-
force it. In my opinion the rule prohibiting buttons was simply
forced underground or was sub rosa reimplemented. It would
be hard to conclude it was ever revoked.
III. THE REMEDY
Having found Respondent to have engaged in certain unfair
labor practices, I find that it should be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. Specifically, it shall be
ordered to cease and desist from interfering with, restraining,
and coercing employees from engaging in activity protected by
Section 7 of the Act. In addition, it shall be ordered to take
certain affirmative action designed to remedy the violations
found herein. As Respondent has unlawfully discharged certain
employees, the affirmative action shall require Respondent to
offer them reinstatement and make them whole for any loss of
earnings and other benefits, computed on a quarterly basis from
date of discharge to date of proper offer of reinstatement, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). In this regard, I
do not find the reinstatement of Ron Isomura to have been in
compliance with the requirements of the Act. He was subjected
to additional unfair labor practices upon his return. Therefore,
he remains entitled to a proper offer of reinstatement together
with backpay,19 although Respondent may claim an offset for
the period of time he was employed by it when he returned.
Furthermore, it shall be required to make any employee whole,
if it has not already done so, for any illegal suspensions found
herein as well as expunging from the affected employees’ per-
sonnel files any reference to their illegal treatment, whether
discharge, suspension, or lesser discipline. Finally, it shall be

19 It is unclear on this record whether Isomura’s subsequent dis-
charge, which is not a subject of this complaint, would terminate Re-
spondent’s backpay liability.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1308
directed to post a notice to employees advising them of their
rights and describing the steps it will take to remedy the unfair
labor practices which have been found.
Based upon the foregoing findings of fact, legal analyses,
and the record as a whole I hereby make the following20
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in
an industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act when it

(a) Maintained and enforced written or unwritten rules
prohibiting employees from wearing union buttons or pins
on their uniforms or other working clothing.
(b) Directed employees to remove union buttons from
their uniforms.
(c) Threatened to discharge or discipline employees
for insisting upon their right to wear union buttons or pins
on their uniforms.
(d) Physically removed union buttons from the uni-
forms of employees.
(e) Told an employee he must comply with an illegal
rule barring him from distributing union literature or solic-
iting union membership in the employee dining room.
(f) Told an employee that he had to comply with an il-
legal rule barring him from arriving on the premises more
than 30 minutes before his shift began and requiring him
to leave within 30 minutes of the time his shift ended.
(g) Intimidated an employee from engaging in union
activity by putting him on the spot with questions about
the Union it knew he could not answer.
(h) Make negative predictions about the consequences
of union representation without supplying a factual basis
supporting that prediction.
(i) Told an employee she could not speak to her co-
workers, whether in person, by telephone, or on or off
duty.

4. Respondent violated Section 8(a)(1) of the Act by the
mere maintenance of the following rules which have a tendency
to inhibit employees from exercising the rights guaranteed by
Section 7 of the Act:

(a) A rule prohibiting employees from wearing union
buttons on their uniforms or other work clothing.
(b) A rule barring employees from the premises 30
minutes before their shift and requiring them to leave
within 30 minutes after their shift.

20 Respondent has attached certain affidavits to its brief in response
to a disparate treatment argument made by the General Counsel. The
General Counsel had moved to strike these as extra-record evidence. I
find the entire matter to be moot as I have determined the disparate
treatment evidence to be unnecessary to the disposition of the case.
Therefore, I did not take either the factual argument or the response
thereto into consideration in making this decision.
5. Respondent violated Section 8(a)(1) of the Act by apply-
ing its no-solicitation, no-distribution rule to employee organiz-
ers by defining nonwork areas such as the employee dining
room as a working area, thereby barring them from the pro-
tected right to lawfully distribute union literature and solicit
union membership in a nonwork area.
6. Respondent violated Section 8(a)(3) of the Act by sub-
jecting the following named employees to the discipline next to
their name on the dates shown:

(a) Saam Naghdi suspension (March 12)
(b) Saam Naghdi warning (April 10)
(c) Clara Montaño warning (June 5)

7. Respondent violated Section 8(a)(3) of the Act by
discharging the following employees on the dates shown:

(a) Ron Isomura (March 13)
(b) Vertis Manuel (April 10
(c) Jorge Aguilar (April 10)
(d) David Schafer (April 10)
(e) Sandra Jordan (May 27)
(f) Jesús Serna (July 30)

8. The General Counsel has failed to demonstrate, either as a
matter of law or as a matter of sufficient evidence, any other
violation of the Act.
On the foregoing findings of fact and conclusions of law and
on the entire record, I issue the following recommended21
ORDER
The Respondent, Ark Las Vegas Restaurant Corporation, Las
Vegas, Nevada, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining and enforcing written or unwritten rules
prohibiting employees from wearing union buttons or pins on
their uniforms or other work clothing.
(b) Directing employees to remove union buttons from their
uniforms.
(c) Threatening to discharge or discipline employees for in-
sisting upon their right to wear union buttons or pins on their
uniforms.
(d) Physically removing union buttons from the uniforms of
employees.
(e) Telling employees they must comply with an illegal rule
barring them from distributing union literature or soliciting
union membership in the employee dining room.
(f) Telling employees that they must comply with an illegal
rule barring them from arriving on the premises more than 30
minutes before their shift begins and requiring them to leave
within 30 minutes of the time their shifts end.
(g) Intimidating employees from engaging in union activity
by putting them on the spot with questions about the Union it
knows they cannot answer.
21 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
ARK LAS VEGAS RESTAURANT CORP. 1309
(h) Making negative predictions about the consequences of
union representation without supplying a factual basis support-
ing that prediction.
(i) Telling employees they cannot speak to coworkers,
whether in person, by telephone, or on or off duty.
(j) Maintaining a rule barring employees from the premises
30 minutes before their shift and requiring them to leave within
30 minutes after their shift.
(k) Applying its no-solicitation, no-distribution rule to em-
ployee organizers by defining nonworking areas such as the
employee dining room as working areas, thereby barring em-
ployees from exercising their right to lawfully distribute union
literature and solicit union membership in nonwork areas.
(l) Discharging or disciplining employees because of their
sympathies, desires, or activities on behalf of Local Joint Ex-
ecutive Board of Las Vegas, Culinary Workers Union, Local
226 and Bartenders Union, Local 165, affiliated with Hotel
Workers and Restaurant Employees International Union, AFL–
CIO.
(m) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Within 14 days from the date of this Order, offer Ron
Isomura, Vertis Manuel, Jorge Aguilar, David Schafer, Sandra
Jordan, and Jesús Serna full reinstatement to their former jobs
or, if those jobs no longer exist, to a substantially equivalent
position, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) To the extent it has not already done so, make Ron Iso-
mura, Vertis Manuel, Jorge Aguilar, David Schafer, Sandra
Jordan, Jesús Serna, Saam Naghdi, and Clara Montaño whole
for any loss of earnings and other benefits suffered as a result
of the discrimination against them, in the manner set forth in
the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges or discipline,
whichever is applicable, levied upon the employees named
above and within 3 days thereafter notify them in writing that
this has been done and that the discharge or discipline will not
be used against them in any way.
(d) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its
restaurants and hiring offices in Las Vegas, Nevada copies of
the attached notice marked “Appendix.”22 Copies of the notice,
on forms provided by the Regional Director for Region 28,
after being signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to en-
sure that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or closed the
facility involved in these proceedings, Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by Re-
spondent at any time since March 13, 1997.23
f. Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

22 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
23 The Regional Director is authorized to require Respondent to also
post the notice in any foreign language he deems appropriate.