Caesars Atlantic City

National Labor Relations Board - Board Decisions

Jun 30, 2005

344 N.L.R.B. 984 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 122
984
Boardwalk Regency Corp. d/b/a Caesars Atlantic
City and David J. Lomanto. Case 4–CA–32937
June 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On March 29, 2005, Administrative Law Judge Paul
Buxbaum issued the attached decision. Charging Party
David J. LoManto filed exceptions, the Respondent filed
an answering brief and the Charging Party filed a reply
brief.
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, findings1 and conclusions and
to adopt the recommended Order.

1 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s finding that the Respondent did not violate
Sec. 8(a)(3) and (1) by warning, suspending, and discharging Charging
Party LoManto, Chairman Battista agrees that the General Counsel
failed to meet his burden under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), of
demonstrating by direct or circumstantial evidence, that the Respondent
was aware of LoManto’s union activity. However, Chairman Battista
does not rely on the judge’s Wright Line analysis to the extent that it
suggests that circumstantial evidence of knowledge of a particular
employee’s union activity may be inferred by establishing other ele-
ments of the General Counsel’s initial burden under Wright Line, such
as animus and general knowledge of union activity. See Atlantic Veal
& Lamb, Inc., 342 NLRB No. 37 fn. 8 (2004).
In adopting the judge’s credibility resolutions, Member Schaumber
does not rely on the judge’s citation to Double D Construction Group,
339 NLRB 303, 306 (2003), a case in which Member Schaumber dis-
sented, or the language used by the judge to describe the proposition for
which it stands. The majority in Double D did not hold, as the judge’s
language could be interpreted to suggest, that a witness’ past falsehood,
standing alone, is always insufficient to discredit his testimony. The
majority said: “Our point, rather, is that in assessing whether a witness
is telling the truth in a Board proceeding, a judge must take into ac-
count all of the factors that bear on the credibility of the witness at the
time of his testimony. (Emphasis in original.) It is not enough to say
that because the witness was untruthful in the past, and regardless of
any factors that may tend to support his testimony, he cannot be cred-
ited now.” Thus, the panel decision in Double D stands for the proposi-
tion that a judge should not rely solely on a single prior act of falsifica-
tion; if there are other factors supporting the witness’ credibility, they
too, must be considered. See Adelphi Institute, 287 NLRB 1073 fn. 2,
1077 (1988). Also, as is evident from former Member Acosta’s con-
curring opinion, Double D cannot be read independent of the facts the
majority found compelling. The witness in Double D was presumed by
the majority to be an illegal alien who gave a false social security num-
ber on his form I-9 under pressure, the majority thought, to find a job,
and he had a correct social security number at the time of the hearing.
Member Schaumber pointed out in his dissent that the majority’s pre-
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Peter C. Verrochi, Esq., for the General Counsel.
Michael Barabander, Peter B. Ajalat, and Margo Eberlein,
Esqs., of Roseland, New Jersey, for the Respondent.
David J. LoManto, of Little Egg Harbor, New Jersey, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BUXBAUM, Administrative Law Judge. This case was
tried in Philadelphia, Pennsylvania, on December 6–8, 2004.1
The initial charge was filed March 25, and an amended charge
followed on May 20. The complaint and notice of hearing was
issued May 25.2
The General Counsel alleges that the Company, through
statements of its supervisors, violated Section 8(a)(1) of the Act
by indicating that it would be futile for employees to select
union representation, threatening reprisals for engaging in un-
ion activities, and creating an impression that union activities
were under surveillance by management. In addition, the Gen-
eral Counsel asserts that the Company issued its employee,
David J. LoManto, a written warning, followed by a suspen-
sion, and, ultimately, a discharge. It is contended that these
sanctions were imposed in order to discourage union activities
in violation of Section 8(a)(1) and (3) of the Act. The Com-
pany filed an answer to the complaint, denying all of the mate-
rial allegations. As described in detail in the decision that fol-
lows, I conclude that the General Counsel failed to meet his
burden of demonstrating that the Company violated the Act in
any of the ways alleged in the complaint.
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party, and the Company,
I make the following

sumptions were not record evidence and the judge did not rely solely on
Sanchez’s falsification of his form I-9 to discredit his testimony that the
employer’s president saw him.
Member Liebman’s views are reflected in the text above.
1 All dates are in 2004 unless otherwise indicated.
2 At the conclusion of the trial, both counsel requested that I hold the
record open to receive additional documentary evidence and stipula-
tions. I agreed. These items having been received, on January 11,
2005, I issued an order closing the record.
3 Counsel for the General Counsel filed a motion to correct the tran-
script of these proceedings. It is unopposed, and I grant it with the
following corrections and notation. Counsel’s reference to p. 284, L.
12, should be to p. 285, L. 12. I cannot find the phrase counsel refers to
as being at p. 302, L. 14. The citation to p. 555, L. 1, should be to p.
556, L. 1. The reference on p. 676, L. 77, is to p. 676, L. 17. I also
note these additional corrections. At p. 12, L. 4, the speaker is counsel
for the General Counsel, not counsel for the Company. At p. 426, L. 3,
“first” should be “fist.” At p. 431, L. 10, I actually said, “you stand or
fall by that.” Any remaining errors of transcription are not significant
or material.
CAESARS ATLANTIC CITY 985
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, operates a hotel and casino at
its facility in Atlantic City, New Jersey, where it annually re-
ceives gross revenues in excess of $500,000 and purchases and
receives goods valued in excess of $5000 directly from points
outside the State of New Jersey. The Company admits4 and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Company’s hotel and casino in Atlantic City is a large
facility. It employs more than 3000 persons. Of those, ap-
proximately 800 are dealers responsible for the operation of the
casino’s games of chance. The dealers are not represented by a
labor organization. For the past decade, Teamsters Union Lo-
cal 331, a/w International Brotherhood of Teamsters, AFL–
CIO, has represented some of the Company’s other casino em-
ployees.
In late November or early December 2003, the Union began
an organizing campaign among casino dealers employed by
several casinos in Atlantic City, including Caesars. The presi-
dent of Local 331, Joseph Yeoman, testified that this drive
“really took off” in January 2004. (Tr. 286.) At that point,
public meetings were held several times each week. This con-
tinued until March. Yeoman indicated that the Union obtained
authorization cards signed by approximately 200 dealers at
Caesars. Nevertheless, the organizing campaign terminated
without the filing of an election petition.
Among those who became involved in the organizing effort
was LoManto. The Company had hired him as a dealer on June
1, 1999. He had previous experience as a dealer at the Tropi-
cana Casino from 1989 to 1998. LoManto testified that he first
spoke with Yeoman and another union officer in late November
or early December 2003.5 On December 15, a coworker gave
LoManto an authorization card that he signed and mailed to the
Union. (GC Exh. 15.) He testified that he also began attending
union meetings and distributing union literature to coworkers
during this period.
The Company drafted a written warning notice to LoManto
on March 2, 2004. This was issued to him on March 5. On that
date, he was also placed on an investigatory suspension that led
to his discharge on March 11. As a result, the focus of attention
must be directed to the conduct of the parties between the ini-
tiation of organizing activity and the discharge of LoManto.

4 See, answer to complaint, pars. 4 and 5. (GC Exh. 1(g).) The
complaint originally named the Respondent as Park Place Entertain-
ment Corporation t/a Caesar’s Atlantic City. (GC Exh. 1(e).) Based on
the Company’s representations regarding the proper corporate name, I
granted counsel for the General Counsel’s request to amend the com-
plaint to change the Respondent’s name to Boardwalk Regency Corp.,
d/b/a Caesars Atlantic City. (Tr. 7–8.) The Company does not use an
apostrophe in the casino’s name.
5 Yeoman testified that he believed that he was first contacted by
LoManto, “somewhere in the latter part of December, middle or latter
part of December.” (Tr. 287.)
B. Preliminary Discussion of Credibility
As mentioned, the Company employs a sizeable complement
of casino dealers, numbering approximately 800. The Union’s
organizing effort among those employees extended over a pe-
riod of more than 4 months. It garnered significant support
demonstrated by the fact that one-fourth of the dealers signed
cards authorizing Local 331 to “represent me in negotiations for
better wages, hours and working conditions.” (GC Exh. 17.)
The General Counsel asserts that, on three occasions during
the course of these events, the Company’s supervisors commit-
ted violations of Section 8(a)(1) of the Act. In addition, it is
contended that the Company imposed various disciplinary
steps, including termination of employment, on one of its deal-
ers, LoManto. After examining the evidence offered in support
of these allegations, one fact emerges as particularly striking.
Despite the participation of many individuals in the organizing
campaign involving this substantial group of employees, the
only witness to offer evidence as to each and every one of these
allegations was LoManto. No other employee or union official
testified in support of his assertions.6 While LoManto alleges
that several of the key incidents involved unwitnessed conver-
sations between himself and a supervisor, he also asserts that
other employees were present when a supervisor allegedly
committed the unfair labor practice of informing the group of
dealers that they “were cowards and that [t]he Union would
never get in.” (Tr. 54.) This allegation, like all of the others,
was unsupported by any corroborative evidence.
LoManto’s version of events is essentially the entire corpus
of the General Counsel’s evidence. As a result, consideration
of the credibility of his testimony becomes a central feature of
this case. I have made a careful evaluation of the reliability of
his accounts, both as they stand alone and when they are
weighed in juxtaposition to the contrary accounts of numerous
witnesses called by the Company. Viewed from both perspec-
tives, I find LoManto’s veracity to be lacking.
Turning first to the weight to be accorded to LoManto’s as-
sertions when viewed standing alone, I note that he was singu-
larly unimpressive as a witness. His presentation was marked
by a virtual compulsion to engage in self-justification, coupled
with an inability to acknowledge any legitimacy regarding con-
trary viewpoints. When confronted during cross-examination
by facts that tended to undercut his self-serving testimony on
direct examination, he repeatedly shifted his story, offering
different versions designed to meet the unvarying objective of
completely justifying all of his actions.7 I will provide addi-
tional descriptions of my perceptions regarding his credibility
during the detailed analysis that follows. However, it is useful

6 Local 331’s president, Yeoman, did testify. His account was lim-
ited to the nature of the organizing campaign and LoManto’s activities
in support of that campaign. He did not testify regarding any alleged
unfair labor practices by the employer or regarding any other indicia of
animus or opposition to the campaign by management of the casino.
7 Taking note of LoManto’s pattern of shifting his story in response
to questioning, counsel for the Company observe that LoManto “makes
up the story as he goes along based on what is most beneficial to him at
the time.” (R. Br. at p. 24.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD986
to now describe a clear example involving a collateral issue that
serves as a pertinent illustration of the overall situation.
As part of its defense in this case, the Company raised the is-
sue of newly discovered allegedly false statements made by
LoManto in his original job application. Evidence was pre-
sented on this point with the objective of limiting any potential
backpay remedy and eliminating the possibility of an order for
reinstatement.8 John Cuneo, Inc., 298 NLRB 856 (1990). See
also, McKennon v. Nashville Banner Pub. Co., 513 US 352,
362–363 (1995). The Company contended that, despite being
warned on the job application form that “[a]ny misrepresenta-
tion or omission of facts” would be grounds for denial of em-
ployment or termination, LoManto made at least two highly
material incorrect statements when completing the form. (R.
Exh. 1, p. 4.) He was asked if he had “ever been convicted of a
crime (other than traffic violation).” He checked the box indi-
cating that his answer was, “no.” (R. Exh. 1, p. 2.) The evi-
dence demonstrated that, in reality, he had been convicted of
harassment in 1987, arising out of a dispute involving his ex-
landlord.
LoManto was also asked the “[r]eason for [l]eaving” his
prior employment as a dealer at the Tropicana. The form pro-
vided the applicant with three boxes to mark in response, one
indicating resignation, one for termination, and a final one indi-
cating a layoff. On LoManto’s form, the box indicating resig-
nation has a check mark near the box and extending through the
printed word, “Resigned.” The box for termination is checked.9
Regardless of which box is checked, the form seeks an addi-
tional written explanation. LoManto’s statement was that his
reason for departing from the Tropicana was: “Seeking better
employment. Advancement opportunity.” (R. Exh. 1, p. 2.)
On cross-examination, counsel for the Company probed
LoManto’s reasoning regarding the manner in which he had
prepared his application form. LoManto denied making the
check mark through the word, “Resigned.” He asserted that
there was nothing misleading about his explanation for leaving
the Tropicana. Counsel then asked him if he was terminated by
the Tropicana due to “guest complaint issues.” (Tr. 202.) Lo-
Manto responded, “I’m not at liberty to say.” (Tr. 203.) He
reported that his refusal to respond was due to the fact that he
had a pending lawsuit against the Tropicana for “wrongful dis-

8 Given my conclusion that the General Counsel failed to meet his
evidentiary burden as to the commission of any unfair labor practices,
the merits of this partial defense are not reached.
9 This practice of creating ambiguity by marking more than one pos-
sible answer on the application form was also apparently used by Lo-
Manto in the section of the form regarding his educational history.
When asked to circle the highest grade he completed, LoManto circled
both the 11th and 12th grade options. (His explanation for this was
unpersuasive. See, Tr. 213.) Interestingly, he appears to have engaged
in the same behavior when completing his job application form at the
Tropicana many years earlier. That form also asked whether he had
any history of criminal convictions. It provided boxes for affirmative
and negative responses. LoManto’s application shows a check mark in
the affirmative box and an “x” in the negative box. Similarly, the
Tropicana application asks whether the applicant has any health prob-
lems that could adversely affect employment. LoManto’s form has an
“x” in the box indicating a negative response and a vertical line in the
box indicating a positive response. (R. Exh. 4.)
missal.” (Tr. 203.) I directed LoManto to answer counsel’s
question. In response, he stated, “I plead the fifth on that.” (Tr.
203.) I inquired whether LoManto believed that his response
could tend to incriminate him. He responded that he did not
believe this. Instead, he now asserted that he had been,
“[s]worn to secrecy” regarding his termination from employ-
ment at the Tropicana. (Tr. 206.) At this point, I recessed the
proceedings so that counsel for the General Counsel could con-
fer with LoManto.
When proceedings resumed, LoManto again asserted that he
had been sworn to secrecy and, in addition, he expressed the
view that, by answering the question, he would be incriminat-
ing himself. I then questioned him regarding the precise mean-
ing of his having been sworn to secrecy. It turned out that his
attorney in his wrongful dismissal lawsuit had simply instructed
him not to discuss the case. I again probed whether he believed
that his response could be self-incriminating and he stated,
“[p]ossibly.” (Tr. 210.) I noted that counsel for the Company
could request a variety of sanctions for refusal to answer, in-
cluding the drawing of an adverse inference.10 At that point,
LoManto finally answered the question, stating that the reason
given for his termination from the Tropicana was due to “a
customer complaint.” (Tr. 212.)
Counsel for the Company then turned his attention to Lo-
Manto’s response to the question regarding any criminal his-
tory. LoManto confirmed that he checked the box indicating
that he had no such criminal history. Counsel asked if that
statement was true. LoManto responded, “Sure it’s true.”11
(Tr. 213.) Counsel followed up by asking if he was convicted
of the crime of harassment in 1989. LoManto’s perplexing
response was: “I don’t recall. No.” (Tr. 213.) Counsel then
remarked on the oddity of someone being unable to recall
whether they had been convicted of a crime and asked if Lo-
Manto’s recollection could be refreshed. He showed LoManto
his application at the Tropicana.12 LoManto indicated that his
recollection was now refreshed. In fact, he now noted that, “I
am very familiar with that case.” (Tr. 215.) Indeed, he went on
to report that he had a
clear recollection, and I lived at 6 Barbara Avenue in West
Orange. I can tell you the phone number too. It’s a complete
recollection.
(Tr. 218.)

10 I also asked counsel for the General Counsel whether it appeared
to him that there was any issue of self-incrimination. He responded,
“No, I don’t think he’s under any criminal jeopardy.” (Tr. 211.)
11 This is a clear example of prevarication. LoManto later admitted
that he was “found guilty of harassment” by the municipal court of
Westland, New Jersey. (Tr. 267.) He described the case as a misde-
meanor involving “a fourth degree offense of disorderly persons for
harassment.” (Tr. 268.) Given the specificity of LoManto’s testimony
on this point, I reject counsel for the General Counsel’s argument that
the evidence failed to establish that LoManto understood that he had
been convicted of a crime. (See, GC Br. p. 48.)
12 In the Tropicana application, LoManto filled in the boxes regard-
ing criminal history in the ambiguous fashion previously described. In
the space provided for explanations regarding convictions, he wrote,
“’87 Harassment—ex-landlord West Orange.” (R. Exh. 4, p. 1.)
CAESARS ATLANTIC CITY 987
At this juncture, LoManto shifted from his original position
that he did not recall anything that rendered his negative re-
sponse on the application erroneous. He now asserted that, “I
was actually told by the Casino Control Commission that I
could put no.” (Tr. 215.) When pressed as to why the Com-
mission would give him such permission, he provided the fol-
lowing justification:
They said you don’t have to put that because it was a discrep-
ancy with an ex-landlord. You weren’t convicted in the sense
where you were arrested. It was a misdemeanor kind of thing
in the fourth degree I believe they called it.
(Tr. 216–217.)
Counsel pursued the issue, noting that his question did not
refer to LoManto’s duty to respond to the Casino Control
Commission, but rather his obligation to provide accurate in-
formation to Caesars. At that point, LoManto’s account again
shifted. He now contended that an employee of Caesars named
Rich told him, “you could put no.” (Tr. 218.) Later in his tes-
timony, he amplified this, explaining that he told Rich that the
Commission had advised him, “that things can’t be held 10
years, they don’t really go back 10 years.” (Tr. 270.) Shortly
thereafter, he shifted his explanation yet again, observing that,
“they could go back that far, but for a misdemeanor there’s no
big deal.” (Tr. 271.)
I have recounted this episode from the trial in some detail
because it illustrates the principal difficulty with LoManto’s
uncorroborated accounts.13 Whether through calculated design
or simply through inability to comprehend other persons’ view-
points or to gain insight into his own conduct, LoManto habitu-
ally tailored his testimony to justify his behavior. When pre-
sented with information that would tend to undercut his state-
ments, he would blithely shift gears, presenting an entirely new
version that nevertheless continued to offer a complete justifi-
cation for his behavior. In listening to and observing his testi-
mony during trial and, afterwards, in examining his testimony
in context with all of the other testimony and documentary
evidence, I became convinced that LoManto’s uncorroborated
statements could not be deemed reliable and credible.
By contrast with the General Counsel’s reliance on the ac-
counts of a sole witness, the Company presented testimony
from virtually every supervisory official involved in the matters
in controversy.14 Those witnesses included Linda Krasowski,
LoManto’s immediate supervisor at the time of the key Febru-

13 My primary concern arising from the issue of LoManto’s state-
ments on his application is the manner in which he chose to testify
about it at trial. His behavior at the time that he applied for work at
Caesars is secondary. See, Double D Construction Group, Inc., 339
NLRB 303, 306 (2003), where the Board held that the fact that a wit-
ness was untruthful in the past, standing alone, is insufficient reason to
discredit his testimony. Instead, the judge must consider all factors
bearing on credibility as of the time of the testimony.
14 The only exception was Joseph Pilleggi, LoManto’s pit manager
during the incident on February 21. Pilleggi is no longer employed by
the Company. Although he was not offered as a witness, the Charging
Party introduced Pilleggi’s written report concerning that incident. (CP
Exh. 4.) That statement was consistent with the testimony of other
management witnesses regarding those events.
ary 21 and March 5 incidents; Derek Solomon, the pit boss who
supervised both LoManto and Krasowski on March 5; Ian Neb-
bett, the shift manager who suspended LoManto; Paul Natello,
the casino manager who participated in the decisions to warn
and terminate LoManto; Patricia Fineran, the Director of Labor
Relations, who also participated in those decisions; Rosemary
Evans, Director of Casino Administration, the third decision
maker regarding LoManto’s discipline; and Frank Niceta, Vice
President of Casino Operations, who was alleged by LoManto
to have made threats of reprisal and predictions of the futility of
organizing. Beyond this, the Company presented the testimony
of William Ossakow, D.D.S., one of the casino customers who
made complaints against LoManto on February 21.
Beyond observing that the Company’s presentation was
comprehensive, I was struck by the clarity and consistency of
the testimony by its witnesses. None of the managers displayed
any anger or malice against LoManto or the Union. To a per-
son, they came across as dispassionate and balanced in their
assessments of the events under consideration. This was
equally true on direct examination and when cross-examined by
both counsel for the General Counsel and LoManto himself,
acting in his role as Charging Party. Furthermore, the parties
introduced a complete paper trail documenting the Company’s
behavior, including contemporaneous incident reports prepared
by customers and managers alike. These reports were consis-
tent with the version of events recounted in the testimony of the
Company’s witnesses.
The background of many of the Company’s management
witnesses also impressed me. Far from being impractical ivory
tower observers of the events in the gambling pits, many of
them had extensive histories in gaming operations and cus-
tomer relations on the casino floor. For example, Krasowski
had 18 years experience as a dealer at Caesars and elsewhere.
Solomon served for more than two decades as a pit boss and
had additional experience as a floor person. Nebbett began his
career as a dealer and served in all intermediate positions be-
fore rising to shift manager. Even the Director of Casino Ad-
ministration, Evans, and the Vice President of Casino Opera-
tions, Niceta, began their careers as dealers. The managers’
extensive practical experience at the operational level enhanced
the credibility of their accounts of their thought process regard-
ing LoManto’s discipline.
In sum, this case presented a clear contrast between the un-
corroborated testimony of an unreliable complainant and the
consistent and persuasive contrary accounts of numerous man-
agement witnesses, accounts supported by the documentary
evidence and by the testimony of one of the customers who
played a central role in a critical incident. Given the qualitative
and quantitative paucity of evidence in support of the General
Counsel’s case compared to the detailed and consistent ac-
counts by credible witnesses on behalf of the employer, I have
no difficulty in concluding that the General Counsel failed to
meet his evidentiary burdens.15 I will now turn to the specific
events that underlie this controversy.

15 Of course, I base my conclusions on a particularized assessment.
The Company’s quantitative edge, standing alone, would be relatively
meaningless. For example, in Overnite Transportation Co., 336 NLRB
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD988
C. The Facts at Issue
In the final months of 2003, the Union began its organizing
campaign among dealers employed by various casinos in Atlan-
tic City. LoManto signed an authorization card in the middle of
December of that year. (GC Exh. 15.) He testified that he
participated in the campaign by attending at least 8 union meet-
ings, driving others to the meetings, and discussing the Union
with his coworkers.16 His major organizing activity involved
distribution of union literature, including authorization cards.
He did this on the employee shuttle bus, at the employee cafete-
ria, and, primarily, in the dealers’ lounge. These activities took
place from December 2003 through February 2004.
It is also contended that LoManto’s organizing activities
took another form. On January 19, LoManto purchased several
internet domain names including terms such as “casino em-
ployees” and “casino dealers alliance.” (GC Exh. 13.) Lo-
Manto claimed that he planned to create websites to facilitate
concerted discussions among dealers regarding the organizing
campaign. This contention is undermined by his testimony that
he has a longstanding practice of buying domain names. He
owns 54 such names and reported that he buys them as “in-
vestment projects . . . they’re a business venture.” (Tr. 57.) He
reported that he planned to solicit purveyors of goods and ser-
vices to offer discounts to dealers through his websites. In any
event, LoManto never took any steps to implement his plans
beyond the purchase of the domain names.17
In his testimony, LoManto conceded that the Company’s
management did not hold any employee meetings to address the
organizing effort. Similarly, it refrained from publishing any
written commentary regarding the matter. He also agreed that,
while other dealers were active in the organizing drive, no em-
ployee apart from himself was subjected to any disciplinary
sanction arising from that union activity. However, he con-
tended that management engaged in a campaign against him
designed to discourage his participation in the organizing activ-
ity.
LoManto indicated that management’s effort against him be-
gan in early January. Around that time, he was in the dealers’
lounge “with some people discussing the Union.” (Tr. 52.) He
was seated at a table and had union literature and cards dis-

387, 392 (2001), the Board affirmed an administrative law judge’s
rejection of a company’s argument that the testimony of its four wit-
nesses must prevail over the contrary testimony of a lone witness for
the General Counsel. The judge characterized such an argument as
“fatuous,” and I agree. In that case, the judge found the sole witness to
be highly credible and the company’s evidence to be tainted by a perva-
sive history of unfair labor practices and unlawful animus. In the case
under consideration, it is the sole witness who is found to be unreliable,
while the testimony of the numerous managers was untainted by any
credible evidence of unlawful behavior or animus directed against
organizing activity.
16 This is the only aspect of LoManto’s testimony that was corrobo-
rated by another witness. Yeoman reported that LoManto attended 6 or
7 meetings and spoke at each one. He was “very vocal about his right
to organize.” (Tr. 292.)
17 Yeoman corroborated the fact that LoManto discussed his pur-
chase of the domain names at a union meeting. As I have indicated,
nothing came of his plans.
played. Three other employees were seated with him at this
table. Director of Casino Administration Evans entered the
lounge. LoManto testified that she came within threefeet of his
location, their eyes met, and she uttered the phrase, “[o]h, my,”
and walked out. By contrast, Evans testified that she never saw
LoManto engage in union activity in the lounge or elsewhere.
Specifically, she also denied ever seeing LoManto seated at a
table containing union literature.18
LoManto testified that he knew the identities of the other
employees asserted to be present during this event. None were
called to testify. I certainly recognize that employees may well
be reluctant to testify against their employer in contested labor
disputes. On the other hand, by the time of this trial the orga-
nizing campaign had been over for 8 months. No other em-
ployee had been disciplined and there was no credible evidence
of overt management hostility toward the campaign, lawful or
otherwise. Finally, and most significantly, the event described
by LoManto was rather innocuous. He did not contend that
Evans made any statements beyond her brief utterance express-
ing surprise, nor did he assert that he suffered any direct conse-
quence from her alleged observations. Given the virtually
complete lack of corroboration in LoManto’s accounts, I con-
clude that it would have been probative for the General Counsel
to have provided such testimony regarding this episode given
that LoManto claimed that several persons whom he knew wit-
nessed the event. As the information regarding the identities of
these alleged witnesses was solely within the knowledge of the
General Counsel and Charging Party, on these facts, I draw an
adverse inference from the failure to produce such evidence or
to provide a specific explanation as to why it could not be pro-
duced. Martin Luther King, Sr., Nursing Center, 231 NLRB
15, fn. 1, (1977).
LoManto reported that shortly thereafter, in mid-January, he
was again seated at the same table in the lounge with union
literature and cards spread out before him. He was discussing
the Union with coworkers. He testified that Vice President of
Casino Operations Niceta entered the lounge. He moved to the
middle of the room and “made a statement projecting outward.”
(Tr. 54.) The statement was that, “the dealers were cowards
and that [t]he Union would never get in.” (Tr. 54.) Nobody
responded and Niceta abruptly walked out of the room.
Niceta denied the occurrence of any such event. Once again,
LoManto’s account is uncorroborated by any testimony from
persons alleged to have been present.19 Beyond this, I found
Niceta to be a particularly persuasive witness. He projected a
balanced view of the circumstances involved in this case and
left the impression that he had been rather fond of LoManto
prior to the events at issue and continued to harbor no animus
against him. For example, he unhesitatingly described Lo-
Manto as having been a “good” employee prior to these events.

18 The Company’s rules of conduct do not prohibit solicitation of
coworkers in the dealers’ lounge during break periods. See, the Com-
pany’s Handbook, p. 15. (GC Exh. 14.)
19 In this instance, I do not draw an adverse inference. If LoManto’s
account were true, the far more pointed nature of Niceta’s alleged
statement could have inhibited the willingness of employees to testify.
Nevertheless, the fact remains that LoManto contends that witnesses
were present. Despite this, his account is completely uncorroborated.
CAESARS ATLANTIC CITY 989
(Tr. 738.) He also expressed tolerance and even appreciation
for LoManto’s rather extravagant sideburns, an issue that had
provoked controversy among other managers. I credit Niceta’s
contention that the startling and provocative event described by
LoManto did not occur.20
LoManto’s account of management’s antiunion campaign
continued with his description of an event in mid-February. At
that time, he was located near the casino office adjacent to the
baccarat pit. He reported that Casino Manager Natello and
another individual were walking toward him while engaging in
a conversation. According to LoManto, Natello stated to the
other individual, “[l]et them get it in. It’s a weak union any-
way.” (Tr. 56.) LoManto indicated that Natello was approxi-
mately 4 feet from his location when he made the remark. He
characterized Natello’s tone as joking and sarcastic. On cross-
examination, LoManto acknowledged that Natello was not
addressing him. He merely overheard a conversation between
Natello and another individual. LoManto agreed with counsel
for the Company’s assertion that this person may have been a
pit boss. He based this conclusion on the fact that the person
was located at the pit boss stand for the baccarat pit.
Once again, the management official asserted to have made
the antiunion remark, in this case Natello, completely denied
having ever made such a comment to anyone. I note that this
type of allegation involving an allegedly overheard private
conversation between a manager and an unnamed second party
is particularly susceptible to abuse. Given my concerns about
LoManto’s overall credibility and the lack of any corroboration,
I reject his description of this event.
At approximately the same time as the supposedly overheard
conversation, LoManto contends that another, more direct,
incident involving antiunion animus occurred. He claims that
he was standing at the scheduling board in the casino office
hallway when Niceta approached him and asked about his
“websites.” (Tr. 61.) LoManto reported that he described the
sites to Niceta, explaining that he planned to create a chat room
and to offer employee discounts on the sites. He did not indi-
cate to Niceta that the sites would be used for any organizing
activity. LoManto contends that Niceta then told him that “it
was in my best interest not to put them up.” (Tr. 62.) Once
again, the salient facts about this claim are that it is uncorrobo-
rated and that the management official alleged to be involved
has repeatedly and totally denied it. Niceta testified that he
never had such a discussion and knew nothing about any web-
sites being planned by LoManto. Given my previously de-
scribed assessments of the veracity of these two witnesses, I
reject LoManto’s account.
At this point in the chronology of events, for the first time
the parties all agree that an incident occurred on February 21.
LoManto was dealing blackjack in pit 12 at approximately 5
p.m. He testified that a patron was sitting in one chair at the

20 In rejecting LoManto’s account, I also note the inherent implausi-
bility of his claim regarding Niceta’s supposed behavior. Even counsel
for the General Counsel concedes that LoManto’s description indicated
that Niceta made an “out of the blue” statement. That statement pur-
portedly denounced some of his employees as cowards. (GC Br. p. 35.)
Such an unprovoked, out-of-context, hostile statement strikes me as
improbable.
table and placing his money in the space allocated for the
neighboring chair. That chair was unoccupied. LoManto re-
ported that he asked the patron to move his money to the posi-
tion in front of his seat.21 He contends that the player re-
sponded by asking, “[w]hy are you fucking with me? Why are
you giving me a hard time?” (Tr. 113.) The player did move
his money. However, one of the player’s companions called
LoManto, “fat fucking Elvis.” LoManto reported that Pit Man-
ager Pilleggi overheard the dispute and came over. He sent
LoManto on break. At the same time, LoManto testified that
Pilleggi told the customers, “I want to make you happy and I’ll
handle this.” (Tr. 114.) When LoManto returned from his 20-
minute break, Pilleggi instructed him to prepare an incident
report regarding these events. Subsequently, he returned to his
work, but was subjected to further abuse by these patrons in the
form of repeated references to him as “fat fucking Elvis.”
LoManto’s version of this incident was vigorously disputed
in the testimony of a casino patron, Dr. Ossakow. Ossakow, a
dentist who resides in Virginia, testified that he has patronized
casinos from 30–50 times. He was a guest at Caesars on Feb-
ruary 21. It was his fourth visit to this establishment. He was
playing blackjack with two companions, Lorenzo Thrower and
Kevin Milano. He confirmed LoManto’s testimony that
Thrower was seated at one position and had placed his money
in the neighboring vacant position. However, he also testified
that LoManto peremptorily moved Thrower’s money to the
position in front of his seat. Thrower subsequently returned it
to the adjacent location. LoManto moved it again, in what
Ossakow characterized as “a hostile fashion.” (Tr. 301.) This
happened repeatedly, whereupon Thrower asked LoManto,
“[w]hy are you messing with me?” (Tr. 302.) LoManto re-
sponded that, “[y]ou got to play by the rules.” (Tr. 302.) Ossa-
kow described LoManto’s conduct as “bullying.”22 (Tr. 302.)
Ossakow noted that play continued. He was betting from
$100 to $400 per hand. At one point, he placed a $100 bet and
won. LoManto paid him only $75. He drew this underpayment
to LoManto’s attention. According to Ossakow, LoManto re-
sponded by stating, “Oh yeah, right, you know, you’re a
cheater.” (Tr. 303.) He accused Ossakow of cheating at least
three times during their increasingly heated exchange. The
commotion drew the attention of the pit boss who came over.
He sent LoManto away and provided Ossakow with his missing
$25. Shortly thereafter, he asked Ossakow if he would com-
plete an incident report. Ossakow complied, writing that Lo-
Manto had been,
extremely unprofessional, rude, and more importantly he
questioned my character by accusing me of cheating . . . . If I

21 In his testimony, he described his actions as mild-mannered, “I
simply asked the gentleman, can you please move your money in front
of your bet?” (Tr. 113.) However, in his contemporaneous written
account in his incident report, he described a more high-handed ap-
proach to the customer, noting that, “I instructed the player that he was
seat[ed] in chair two and his wager was required to be in front of him.”
(GC Exh. 46.)
22 In describing LoManto’s treatment of Thrower, Ossakow testified
that, “I’ve probably been through 100,000 hands of blackjack or proba-
bly more, and I’ve never seen that type of rudeness and just a bully.”
(Tr. 317.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD990
owned this place I wouldn’t want David representing my
business.
(GC Exh. 44, Tr. 325.) Ossakow testified that, “I thought for
sure that guy would be fired.” (Tr. 309.) He has not returned
to Caesars since the incident.
Thrower and Milano also prepared incident reports. Milano
noted that LoManto had shortchanged Ossakow and accused
him of cheating. He reported that LoManto had made “insult-
ing remarks” and “got rude.” (R. Exh. 6.) Thrower stated that
LoManto “insulted me because I didn’t place my bet inside the
right circle in front of me.” (R. Exh. 7.)
LoManto strongly denied calling any player a cheater.
Equally strongly, he denied having shortchanged any customer
or even being involved in any dispute about shortchanging a
customer.23 I have already noted that Ossakow’s account was
corroborated by the written statements of his companions. It
was also supported by the statements and testimony of Lo-
Manto’s two immediate supervisors, both of whom were pre-
sent on the floor that day. Table Games Supervisor Krasowski
testified that, although she was nearby, she did not overhear
much of the exchange between LoManto and the customers.
However, her attention was eventually attracted by the noisy
dispute. At that point she heard Ossakow tell LoManto,
You can’t call me a cheat. You’re questioning my integrity,
you’re questioning my honesty.
(Tr. 369.) This is significant for two reasons. First, while Lo-
Manto concedes that he had a dispute with Thrower over the
placement of money, he denies any dispute with Ossakow.
Second, LoManto adamantly denied that he was involved in
any disagreement over shortchanging a customer and equally
adamantly denies ever having accused the customer of cheat-
ing. The comments heard by Krasowski support Ossakow’s
account as to both points.

23 After hearing Ossakow’s testimony, LoManto was recalled as a
rebuttal witness. As was his wont, he shifted his position on rebuttal by
raising an entirely new issue. He claimed that he had never seen Ossa-
kow before viewing him during the trial. Instead, he asserted that,
“[q]uite possibly” Nebbett had “fabricated” Ossakow’s statement. (Tr.
793.) In his brief, LoManto went further, asserting that the Company,
“made up this incident . . . it was fabricated just as they wanted it to
be.” (CP Br. at p. 2.) However, although claiming that the entire inci-
dent was manufactured, in his testimony LoManto did concede that he
recalled that, in the words of counsel for the General Counsel, “he had
asked a player to move his chips.” (Tr. 790.) Thus, he admitted that a
vital part of the February 21 incident had occurred. I completely reject
any claim that Ossakow was part of a plot to create evidence against
LoManto. He was subjected to extensive cross-examination by both
counsel for the General Counsel and LoManto himself. He was never
asked about his bona fides as a witness. For example, he testified that
he drove from Virginia to Philadelphia to attend the trial. It would have
been a simple matter to ask him to produce his driver’s license to verify
that he was who he purported to be. The claim of fabrication is simply
a last ditch gambit offered by LoManto in recognition of the damaging
nature of Ossakow’s account, testimony made more persuasive by the
fact that he had no significant stake in the outcome of these proceed-
ings. (I note that counsel for the General Counsel accepts Ossakow’s
testimony regarding his identity, describing him as “a 32-year old den-
tist from Chantilly, Virginia.” (GC Br. at p. 10.))
Krasowski reported that she did not intervene in the dispute
because her own supervisor, Pilleggi, arrived at this juncture.
She deferred to him. As has been noted, Pilleggi no longer
works for the Company and was not called as a witness. How-
ever, the Charging Party introduced Pilleggi’s statement into
evidence. That statement strongly supports Ossakow’s account.
He wrote that he was called to the game by three players “who
were very angry at the dealer’s behavior.” They reported that
LoManto was “very rude” and “accused Mr. Ossakow of cheat-
ing, attempting to cheat.” (CP Exh. 4.) He also indicated that
they complained that LoManto “kept dogging Mr. Thrower in
an aggressive rude manner about how and where he was plac-
ing his wager.” (CP Exh. 4.) Pilleggi goes on to describe his
investigation of this report, noting that the customers appeared
to be “very calm gentlemen” who were greatly agitated by the
episode. He spoke to the casino host who was responsible for
providing hospitality to the men. The host “spoke highly of
these patrons, being very fun, polite and generous.” (CP Exh.
4.) Pilleggi concluded by observing that, “[t]his seems to be an
ongoing problem with Mr. LoManto and should be dealt with in
a stern fashion.” (CP Exh. 4.)
Shift Manager Nebbett testified that Pilleggi called him to
report that he had a situation involving three patrons and a
dealer. He indicated that the dealer had accused one of the
customers of cheating. Nebbett came to the floor and spoke
with the three customers. Milano told him that LoManto had
been “unnecessarily rigorous with the rules” and had then ac-
cused Ossakow of cheating. (Tr. 512.) After speaking with the
three men, Nebbett testified that he concluded that they:
seemed to be perfectly forthright, nice people. I didn’t notice
anything unusual about the way they were acting that would
cause them to become agitated, other than what took place.
(Tr. 513.) The men calmed down after their conversation with
Nebbett. He offered them compensation, but they refused the
offer. Nebbett testified that he concluded they were being
truthful.24 Among his reasons for reaching this conclusion was
the fact that,
[i]t was a $25 chip, and for a gentleman that’s betting two or
three hundred dollars a hand, it wasn’t that important to him.
It was important because he had been accused of cheating.
(Tr. 554.)
Once again, I am faced with evaluation of LoManto’s uncor-
roborated testimony regarding a disputed event. In this in-
stance, resolution of the conflict is relatively easy. The primary
witness disputing LoManto’s account is Ossakow. Considering
the two men’s respective degrees of interest in the matter, it is
apparent that Ossakow is a far less interested party. This lends
weight to his account. In addition, I found him to be a sober,
responsible, and credible informant. Beyond that, his version
was extensively corroborated by the testimony and statements

24 I reject counsel for the General Counsel’s speculation that Ossa-
kow’s behavior may have been affected by alcohol. (GC Br. at p. 12.)
Ossakow credibly testified that he consumed only one drink. Ossa-
kow’s apparent confusion regarding the time of the incident is far too
slender a reed to support counsel’s supposition that he was intoxicated.
The credible evidence is to the contrary.
CAESARS ATLANTIC CITY 991
of his two companions and the two supervisors present on the
floor. Finally, even LoManto’s version serves to corroborate
significant aspects of Ossakow’s account. While LoManto
strongly disputed the description of his interaction with Ossa-
kow, he largely agreed with the description of his dispute with
Thrower. Thus, he concedes the general nature of what tran-
spired during half of the events at issue. In addition, Lo-
Manto’s testimony and his written incident report both note that
Pilleggi’s immediate reaction was to send him away from the
table while telling the customers, “he wanted to make them
happy.” (GC Exh. 46.) While I recognize that it may always
be desirable to placate unhappy patrons, LoManto’s description
of Pilleggi’s reaction to what he encountered suggests that Pil-
leggi was disturbed by what he had heard regarding LoManto’s
behavior. In sum, I find that the February 21 incident occurred,
and that it involved serious misconduct by LoManto consisting
of a pattern of poor customer relations culminating in the level-
ing of a very serious accusation against a patron.
Based on his preliminary investigation, Nebbett decided to
refer LoManto’s conduct for evaluation through the Company’s
formal disciplinary process. He based his conclusion on the
fact that, as he put it, “[u]nder no circumstances” should a
dealer accuse a customer of cheating. (Tr. 526.) As a result, he
compiled the written statements from the three patrons, along
with additional statements from Pilleggi and LoManto. He
transmitted these to his superiors, Natello and Evans. Nebbett
testified that he considered imposition of an investigatory sus-
pension, but decided against this strong measure because Lo-
Manto had no prior history of formal discipline and no man-
agement witness had actually heard LoManto’s statements to
the customers.
In the words of it’s handbook, the Company, “usually applies
progressive discipline to correct employees’ unacceptable be-
havior or performance (i.e. warning letters before termina-
tion).” (Handbook at pp. 16–17, GC Exh. 14.) However, the
handbook also notes that the Company retains the right to im-
pose termination, “depending upon the circumstances.” (Hand-
book at p. 17, GC Exh. 14.)
Director of Casino Administration Evans described the pro-
cedures used in effectuating the Company’s disciplinary proc-
ess. If it is determined that an employee may be subject to
discipline that is more severe than a verbal warning, written
statements from those involved are prepared. These are for-
warded to Evans and Casino Manager Natello. They consider
the case individually and then confer with each other. If they
determine that formal discipline is required, the documents are
transmitted to the labor relations department. At that point,
Evans, Natello, and appropriate representatives from labor rela-
tions meet and determine the precise level of discipline. Deci-
sions under this tripartite process are made by consensus. The
options include verbal warning, first written warning, final
written warning with or without unpaid suspension, and dis-
charge.
Evans testified that she and Natello received the statements
about the February 21 incident and conferred. They determined
that they needed a statement from Krasowski. Nebbett was
instructed to obtain this statement and he did so. Natello also
spoke to Nebbett to obtain his assessment of the customers. He
testified that Nebbett gave a favorable account of the custom-
ers’ demeanor, reporting that “they seemed like they were very
nice gentlemen who were having a good time and were very
offended by what had taken place on the game.” (Tr. 681.)
Having obtained the additional information they deemed
necessary, Evans and Natello met again during the first week of
March. Evans testified that they considered the seriousness of
the incident as demonstrated by the fact that three patrons took
the trouble to write reports about it. This was highly unusual.
Natello also reported that he had never before heard of a dealer
accusing a customer of being a cheater. They also considered
LoManto’s lack of prior history of formal discipline. As Evans
put it, he had a “good record.” (Tr. 608.) Finally, they ob-
served that no management official had actually heard Lo-
Manto utter the words that were the subject of the complaint.25
Based on consideration of these factors, Evans was in favor of a
final warning. Natello convinced her that an ordinary written
warning would be sufficient. This joint recommendation for a
written warning was forwarded to labor relations where it was
considered by Director of Labor Relations Fineran and a staff
member, Renee Merlino. Their initial reaction was that Lo-
Manto should be terminated. After hearing the rationale behind
Evans and Natello’s recommendation of a written warning, they
agreed to this lesser sanction.
On March 2, Evans wrote the formal warning to LoManto
using the Company’s disciplinary notice form.26 It advised
LoManto that he was receiving a written warning for “inappro-
priate comments to customers while dealing.” (GC Exh. 3.) It
also warned that additional similar incidents might result in
further discipline, including termination. Evans signed the
form on March 2 and transmitted it to Nebbett. Nebbett signed
it on the following day. He retained it in his office for issuance
to LoManto.
While the disciplinary process was underway, on approxi-
mately February 27 or 28, LoManto and Krasowski had a con-
versation. While both agree that they spoke to each other about
the February 21 incident, they differ on the content of the con-
versation. LoManto reported that Krasowski approached him
and advised him that she had been ordered to prepare an inci-
dent report regarding the events on February 21. He states that
she expressed the hope that management was not trying to get
him into trouble. In contrast, Krasowski indicated that Lo-
Manto approached her to ask “if anything occurred” regarding
the incident on February 21. She informed him that she had
been instructed to prepare an incident report. She denied mak-
ing any comment regarding management trying to get him into
trouble.
I have already expressed my general conclusions concerning
the credibility of LoManto and Krasowski. Beyond those, I
note that Krasowski’s version strikes me as inherently more
plausible. LoManto had recently become involved in a heated
exchange with several customers. A supervisor had intervened.
Shortly thereafter, he was ordered to prepare a written report

25 Evans noted that, had such verification from a supervisor existed,
LoManto “would probably have been terminated.” (Tr. 609.)
26 There was some delay in resolution of the disciplinary process be-
cause Evans was on vacation during this period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD992
regarding the event. It is certainly not surprising that he would
approach his immediate supervisor several days later in an ef-
fort to determine the status of the episode. In contrast, it is less
likely that the supervisor would volunteer information regard-
ing the ongoing disciplinary process to the employee who was
the subject of that scrutiny. And, it is even less likely that the
supervisor would comment about the attitude and motivation of
her superiors while the process was underway. For these rea-
sons, I credit Krasowski’s account of the conversation.
While the warning letter to LoManto sat in Nebbett’s files
awaiting issuance, a second major incident involving LoManto
occurred on the afternoon of March 5. Once again, all parties
agree that a dispute arose between LoManto and casino patrons,
but their accounts of the details are widely divergent. LoManto
testified that he was working at pit 15, dealing 3-card poker.
Krasowski was his immediate supervisor and Pit Boss Solomon
was in overall charge of the area. LoManto indicated that he
first experienced problems with patrons at approximately 2:20
p.m. Two Asian ladies were showing each other their cards.
LoManto told them to cease. They replied that they had been
doing this for some time and had not received any complaints
about it. A male patron supported the ladies by interjecting
that, “he never heard of such a thing.” (Tr. 76.) LoManto testi-
fied that he called for Krasowski, she arrived and instructed the
ladies not to show their cards.27 They apologized and, accord-
ing to LoManto, “everything was fine.” (Tr. 78.)
Later that day, at approximately 3:40 p.m., LoManto re-
turned from a break and resumed dealing 3-card poker. At that
time, three regular casino patrons, Dolly Adams, Helen
Costello, and Leah Kelly, were seated at his table. LoManto
testified that one of the ladies began showing her cards to an-
other. In addition, other players could also see the cards. He
told the customer that, “I’m sorry, you can’t show your cards.”
(Tr. 81.) He contends that she told him to mind his own busi-
ness. He responded that he had rules he was required to follow.
She replied that, “[n]obody else says nothing.”28 (Tr. 81.)
According to LoManto, he called Krasowski, who instructed
the ladies not to show their cards. They agreed.
Having apparently resolved the problem with the patrons,
LoManto now became embroiled in a second controversy with
them. He testified that one of the ladies gave another one a
poker chip. As a result, in his view, “the integrity of the game
was compromised.” (Tr. 82.) He testified that he again sum-
moned Krasowski, who told the customers that they could not
share money. LoManto proceeded to deal the next hand. At
that time, customers both shared funds and showed each other
their cards. In addition, LoManto indicated that two of the
ladies began conversing in a foreign language, yet another rule
infraction. He called for Krasowski. The exasperated customer
asked LoManto, “[w]ho do you think you are, Elvis or some-
thing?”29 Another patron chimed in, adding that they had been

27 At trial, Krasowski was not asked about this episode.
28 In a revealing aside that displays his lack of insight regarding the
impact of his manner of behaving on customer’s feelings, LoManto
observed that at this point in their exchange, the lady was “automati-
cally developing an attitude.” (Tr. 81.)
29 The repeated references to LoManto as Elvis Presley relate to the
fact that he bears some physical resemblance to the famous rock idol.
doing this all night without any complaint. A third lady stated,
“[w]e’ll just get rid of him.” (Tr. 84.) The second lady re-
sponded by raising a fist and chanting, “[t]he power of the peo-
ple.”30 (Tr. 84.) The ladies began clapping and, in LoManto’s
words, created a “ruckus.” (Tr. 85.) In his contemporaneous
incident report, he described what happened next:
At this point I had stopped dealing[.] [T]hey were causing
such a commotion that the entire pit was looking over. All the
patrons and dealers.
(R. Exh. 2, p. 2.) Given the situation, both LoManto and Kra-
sowski called for Solomon.
LoManto informed Solomon that, due to repeated player rule
infractions, he felt “uncomfortable dealing the game.” (Tr. 85.)
He testified that Solomon told him that the ladies were not try-
ing to cheat, but were merely there to have fun. He instructed
LoManto to resume dealing. LoManto testified that he com-
plied. Immediately thereafter, one lady showed her cards to
another. He again called for Krasowski. At this point, the pa-
trons left the table.
In his testimony, LoManto revealed a lack of comprehension
regarding the reaction of the customers to his behavior. He
reported that,
[t]hey didn’t seem upset. They just seemed like they were-
projecting themselves to cause a scene and make a spectacle
of me.
(Tr. 166.) Later in his account, he appeared to gain some com-
prehension of the consequences of his manner of approach to
the ladies, observing that “they felt I was making them look
silly or stupid.” (Tr. 169.) Still later in his testimony, he re-
verted to his earlier inability to accurately perceive the custom-
ers’ reactions, strongly asserting that they were not upset by his
conduct in any way.
Under cross-examination, LoManto’s description of his rea-
soning during this key event shifted in a characteristic and re-
vealing manner. He testified that he requested that Solomon
obtain Nebbett’s presence at the table to deal with the incident.
Counsel for the Company asked him why he had made this
request. He responded that he asked for the shift manager’s
presence because he was questioning the decisions made by
Krasowski and Solomon. As he put it, “I thought they were
taking the matter much too loosely.” (Tr. 228.) When counsel
noted that this meant that the reason for the request was his
concern regarding supervisory misconduct, LoManto changed
his account, contending that he called for Nebbett, “for the
whole incident, about the abuse, the comments that they [the
customers] were making.” (Tr. 230.) Counsel then took Lo-
Manto through the claimed abusive conduct, making it evident
that the customers had not engaged in any profanity or threats.
Rather, LoManto conceded that his concern was with their
“sarcasm.” (Tr. 231.) He displayed his unique view of cus-
tomer relations by opining that the casino’s patrons were “sup-

This is further enhanced by the way he keeps his sideburns. LoManto
testified that, while he worked at Caesars, both employees and patrons
often referred to him as “Elvis.”
30 LoManto described this as an imitation of a notorious event in-
volving American Olympic athletes.
CAESARS ATLANTIC CITY 993
posed to have a responsibility to themselves to be respectful
citizens.”31 (Tr. 238.)
Krasowski testified that, as was her duty, she had been ob-
serving the players at the 3-card poker table prior to LoManto’s
arrival. She indicated that the mood was, “very relaxed, every-
one was laughing and having a good time.” (Tr. 348.) She did
not see any rule infractions, although she did notice that cus-
tomers were showing each other their hands, a “little bit.” (Tr.
348.) She did not consider this as cause for concern.
After LoManto took over as the dealer, he instructed one of
the ladies to cease showing her cards, adding that he was “the
only one that enforces the rules.” (Tr. 356.) Krasowski re-
ported that LoManto’s tone was, “very bossy, he was very rude,
he was very loud.” (Tr. 357.) She came over and told him to
“please be quiet and just deal the game.” (Tr. 357.) Despite
these instructions, LoManto continued to demand that the play-
ers not show cards and not speak in a foreign language, “repeat-
ing the same things over and over.” (Tr. 359.) As a result, the
players were becoming angry, “telling him he’s rude and they
don’t like being spoken to in the manner he was speaking to
them, they came here to have fun.” (Tr. 359–360.) Other play-
ers applauded these comments and the game ceased.
Noting that play had ceased, Krasowski testified that she
again instructed LoManto to deal. As she put it, “that’s when
he told me no. And he said, ‘The players are rude and I’m not
dealing.’” (Tr. 361.) She again told him to resume dealing and
he again refused. In her testimony, Krasowski agreed with
LoManto that both she and LoManto then called for Solomon.
By this point, three of the customers had left the table in anger.
When Solomon arrived, he spoke to LoManto and informed
Krasowski that LoManto was to be quiet and resume dealing.
After being ordered by Solomon to resume dealing, LoManto
complied. Disregarding the instruction to remain quiet, Lo-
Manto began talking to the one patron who had been present
during the controversy and who had remained at the table. He
told her that he was the only dealer who enforced the rules.
Krasowski heard him make this remark.
In his role as Charging Party, LoManto cross-examined Kra-
sowski. He asked her to characterize his conduct toward the
customers that day. She replied:
You were being a bully. You were trying, you were being a
bully to the women at the table . . . . You were telling them
constantly in a horrible manner not to look at each other’s
cards, not to touch anyone’s money, not to touch the cards,
and it was just constant.
(Tr. 414.)
Solomon also testified regarding his participation in these
events. He confirmed that both LoManto and Krasowski called
him over to the table. LoManto told him that the players were
being rude to him. Krasowski told him that LoManto had
stopped dealing. Solomon testified that he instructed LoManto

31 In contrast, Nebbett expressed management’s view by observing,
“this isn’t Macy’s. This is a casino where people lose money. They
say things without thinking a lot of times. So we chose to give the
benefit of the doubt once, at least, to a patron. It’s a fact. It’s the na-
ture of the business, and it’s just the way it is; and everybody that
works in the business knows that.” (Tr. 578.)
to resume dealing, and he complied. Solomon then phoned
Nebbett and informed him of the incident. He also sent for a
replacement dealer. When the replacement arrived, Solomon
took LoManto away from the table for a private conversation.
In a rather striking bit of testimony, Solomon reported that
LoManto’s first words to him after being led away from the
customers were, “[t]his could be a potential lawsuit.”32 (Tr.
442.) LoManto added that he was the only employee who en-
forced the rules. Solomon told LoManto that, “it was inappro-
priate for him to act like this and to keep quiet and go back on
the game and deal.” (Tr. 441.) Two of the customers left the
table, approached Solomon, and told him “that they didn’t
come to Caesars to be treated this way.” (Tr. 443.) He offered
them a complementary meal and they declined. Solomon re-
turned to the table and apologized to the third lady who was
still present. She observed, “I guess David was just having a
bad day.” 33 (Tr. 444.)
Solomon testified that “[a]lmost immediately” after being
told to be quiet and resume dealing, LoManto “started talking
about the incident again.” (Tr. 445.) He reported that he ob-
served LoManto talking and that Krasowski heard the actual
conversation and reported to him that it was about the incident.
Solomon phoned Nebbett and described these events. Nebbett
instructed Solomon to send LoManto to his office. He secured
a replacement dealer and told LoManto to report to Nebbett.
Under cross-examination by LoManto, Solomon was asked
why he had tolerated conduct by the patrons that involved har-
assment of a dealer and why he had felt it appropriate to offer
the patrons a complementary meal. He responded:
At that time I thought what you had said to them was embar-
rassing and inappropriate, and I don’t think they were harass-
ing you other than the fact that they had said things were
much better before you came on the table.
(Tr. 478.) He noted that the situation would have been different
if the patrons had used profanity or uttered threats.
The focus of this narrative of events must now turn to the in-
teraction between LoManto and the managers involved in his
termination. Events began with LoManto’s meeting with Neb-
bett in Nebbett’s office. LoManto contends that their initial
meeting on March 5 lasted for approximately one hour, includ-
ing some interruptions. After shaking hands, Nebbett began by
asking, “what had happened to me suddenly.” (Tr. 93.) Lo-
Manto asked what he meant. LoManto contends that Nebbett
then made reference to “my union involvement with Local
331.” (Tr. 93.) He went on to tell LoManto that this was bring-
ing problems onto himself. As LoManto put it, Nebbett told
him to, “shut up, keep my mouth shut.” (Tr. 93.)

32 Solomon also reported this peculiar prediction of the possibility of
future litigation in his contemporaneous written incident report. (GC
Exh. 47.)
33 One of the patrons, Adams, was a regular customer who was
known to Nebbett. He reported that she also approached him and told
him that LoManto “was both very rude and insulting. So much so that
they were compelled to walk away from the table. Ms. Adams said that
David had accused them of trying to cheat.” (GC Exh. 49.) He offered
her a complementary meal and she accepted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD994
LoManto reported that he was feeling ill. He asked Nebbett
for permission to get something to eat and to visit the nurse.
Nebbett denied both requests, instead handing LoManto the
written warning arising from the February 21 incident. He
asked Nebbett what it was about; however, he also indicated
that at that time he did recall the incident referred to in the
warning letter. He explained his version to Nebbett, noting
that, “I shouldn’t have to deal with people that abuse the deal-
ers, that degrade the dealers.” (Tr. 96.) Nebbett asked Lo-
Manto to sign the warning letter as acknowledgement that he
had received it. LoManto refused.
Discussion next shifted to the March 5 incident. LoManto
advised Nebbett to view the overhead surveillance tape of this
incident because, “it would prove my innocence rather than
their submission of my guilt.” (Tr. 97.) In his written account,
LoManto also reported that he told Nebbett that, “I would not
deal to customers trying to abuse me.” (R. Exh. 2, p. 3.) Dis-
cussion also turned to the subject of LoManto’s sideburns.
Nebbett informed him that they violated casino appearance
rules and should be “shaved off by the next time you come in.”
(Tr. 98.) LoManto responded that,
there’s people [employees] with dreadlocks, when they
twist—they have cornrows and it’s real tight. I said they
don’t wash their hair for three or four months. I’d be more
concerned about their hygiene than my sideburns that are
neatly groomed.
(Tr. 98.) As the meeting drew to a close, LoManto testified that
he asked Nebbett for permission to return to the floor to obtain
witness statements from employees and customers who had
been present during the incident earlier that afternoon. He re-
ported that Nebbett granted him permission, instructing him to
tell Solomon that this was allowed.
LoManto testified that he proceeded back to the floor and
told Solomon that Nebbett had authorized him to take witness
statements. Solomon declined to grant permission for this ac-
tivity.34 LoManto then proceeded to visit the nurse. While he
was there, she received a telephone call from Nebbett instruct-
ing her to inform LoManto that it was “imperative” that he
return to Nebbett’s office before leaving the casino. (Tr. 102.)
When he complied, Nebbett instructed him to complete an inci-
dent report regarding the episode that had occurred that after-
noon. LoManto objected that he was ill. Nevertheless, he was
required to write the report and he did so. He testified that this
task took him approximately 2-1/2 hours to complete. He then
requested permission to leave, noting that, “I want to go to a
hospital. I want to get checked out.” (Tr. 103.) Once again,
LoManto contends that Nebbett denied permission for him to
leave, telling him to remain while Nebbett obtained and re-
viewed the surveillance tape. As a result, LoManto went to the
cafeteria and ate.
LoManto reports that he and Nebbett had a final meeting ap-
proximately 30 to 45 minutes later. Nebbett informed him that

34 Solomon testified that LoManto did ask permission to take wit-
nesses statements. However, he did not mention any authorization
from Nebbett. Solomon denied the request because it would have been
disruptive.
he had reviewed the tape and had not observed any customer
infractions. He informed LoManto that he was being placed on
investigatory suspension and should contact Evans on the fol-
lowing Monday. LoManto then left the casino and sought
medical evaluation. He was examined and released.
Adhering to the well-established pattern in this case, Neb-
bett’s testimony contradicts that of LoManto as to many key
points regarding their conversations on March 5. Nebbett testi-
fied that Solomon had phoned him to report that LoManto had
refused to deal. He directed Solomon to send LoManto to his
office. According to Nebbett, when LoManto arrived,
I tried to get to the reason of the patrons—why they were up-
set and try to make him understand why they were upset; and
it seemed that the way he was presenting to me was that he
was more concerned with enforcing the rules than how he was
enforcing the rules. And I tried to explain the difference be-
tween enforcing the rules and correctly addressing customers
and politely addressing customers, and that wasn’t apparently
sinking in. I wasn’t getting anywhere.
(Tr. 530.) In his contemporaneous written account of the meet-
ing, Nebbett stated that he told LoManto that the issue was “his
poor judgment and inability to express himself to patrons in a
polite and courteous manner.” (GC Exh. 49.) He noted that
LoManto’s response was to refuse to accept any “culpability.”
(GC Exh. 49.)
Nebbett testified that he issued the February 21 warning let-
ter to LoManto. LoManto responded by explaining that, once
again, he was just enforcing the rules. Nebbett agreed with
LoManto’s assertion that he objected to the appearance of Lo-
Manto’s sideburns, telling him to trim them before they caused
him to receive further disciplinary action. Nebbett also agrees
that LoManto reported that he was not feeling well. He indi-
cated that he wished to go home. Nebbett asked him to com-
plete a written statement first and he agreed to do so. While
confirming that these things happened, Nebbett strongly and
completely denied that he raised the subject of LoManto’s or-
ganizing activity. Indeed, Nebbett asserted that this would have
been impossible since he was completely unaware that Lo-
Manto was involved in the Union’s campaign. Nebbett also
denied that LoManto requested permission to obtain witness
statements.
At this juncture, Nebbett reached a decision regarding further
disciplinary action. Having reviewed the videotape of the
March 5 incident and spoken to Adams, Solomon, and Lo-
Manto about it, he decided to impose an investigatory suspen-
sion. Nebbett testified in persuasive detail regarding his
thought process,
I reviewed everything and assessed and considered the previ-
ous occurrence [on February 21], which happened barely two
weeks ago; and in this case, felt that a pattern of behavior had
been established; and felt that, in this case, I should put him
on investigative suspension.
(Tr. 537.) He went on to articulate his reasoning in more detail,
I assessed the interaction of the three patrons from the previ-
ous [February 21] incident; the statements from Derek [Solo-
mon]; the fact that Linda [Krasowski] was right there when
CAESARS ATLANTIC CITY 995
this [March 5] incident took place. She was standing at the
game when this took place35, the second incident on March
5th, and [I] put a lot of credence in what she—the way she
explained it to me; and again, the customer input; and the fact
that Derek had spoken to David [LoManto] about it and asked
him to refrain from discussing it any further when he went
back onto the game, and he did not. All these things together
added up to my pulling his license that day and putting him on
investigative suspension.
(Tr. 537–538.) While Nebbett was not among the officials
authorized to make the decision regarding the final discipline to
be imposed on LoManto, he testified that when he placed Lo-
Manto on investigatory suspension he believed that the “likely
outcome” would be his termination. (Tr. 567.) Finally, Neb-
bett concluded his participation on that day by drafting a writ-
ten report regarding the incident.
After March 5, the Company followed the same disciplinary
procedures that were employed regarding the February 21 inci-
dent. Evans, Natello, and Fineran received and reviewed writ-
ten statements from Krasowski, Solomon, Nebbett, and Lo-
Manto. In addition, Evans and Natello viewed the surveillance
videotape.36 All three members of the disciplinary panel
reached the same conclusion, that termination of employment
was the appropriate disciplinary sanction. In particular, Evans
and Natello provided detailed testimony about their individual
decision making processes. Although they approached the
termination decision from somewhat different perspectives,
they reached an identical conclusion.
Evans testified that the videotape did not reveal any cus-
tomer behavior “that would have compromised the game to the
point where the Dealer would have to refuse to deal.” (Tr.
614.) She noted that the showing of cards to another player
would not give anyone an advantage over the house since, in
the game of 3-card poker, “each hand stands on its own.” (Tr.
641.) Evans concluded that LoManto should be terminated for
the offense of insubordination. In her view, LoManto had been
insubordinate when he refused to obey Krasowski’s instructions
to resume dealing. Furthermore, he was again insubordinate
when he chose to discuss the incident with a customer immedi-
ately after being instructed by Solomon to be quiet. While
these constituted her main objections to LoManto’s behavior,
she also noted “his rudeness in the way he applied the rules of
the game to the customers.” (Tr. 613.) Finally, she took into
account a pattern established by the two incidents. As a result,
she was in favor of termination of LoManto’s employment.
Natello testified that he placed particular weight on his in-
vestigatory meeting with Krasowski, during which they viewed
the videotape together. He noted that,

35 By viewing the surveillance video of the incident, Nebbett was
able to confirm Krasowski’s presence at the table during the events.
The tape was introduced into evidence and my own view of it, coupled
with the testimony regarding its content, clearly establishes her pres-
ence. (GC Exh. 41.)
36 In Natello’s case, he viewed the video with Krasowski in order to
obtain her explanatory comments about the actions depicted on the
tape.
she was right there, and she heard everything that was tran-
spiring between David and the customers in terms of what he
was saying, the tone of this voice, and—and what she said—
[he] was rude. She had informed him to continue dealing,
which she had pointed out he had not.
(Tr. 656–657.) Natello also observed that he did not see any-
thing on the tape indicating significant misbehavior by the
players. He agreed that there was some showing of cards, but
nothing that would have affected “the integrity of the game.”
(Tr. 666.) Interestingly, Natello placed a slightly different take
on LoManto’s conduct during the incident than that described
by Evans. He explained his reasoning, noting that,
there certainly was two separate reported instances of insub-
ordination; but my—the purpose of my decision was—what I
weighed it in was the fact of what transpired on the game, the
rudeness, the disregard for our customers, the disrespect that
was shown verbally in his actions. That’s really what the
heart of the matter was for me.
(Tr. 658.)
As indicated, Evans, Natello, and Fineran all agreed on the
imposition of termination. On March 11, a termination notice
was issued and mailed to LoManto. It stated that termination
was based on “[m]isconduct/insubordination” arising from the
March 5 incident. (GC Exh. 2.) It also took note of the prior
incident involving inappropriate comments. LoManto testified
that he learned of his termination on March 15 during a conver-
sation with Evans. She informed him that he could file a griev-
ance if he wished. This was a reference to the Company’s
Board of Appeal procedure described in the handbook. (GC
Exh. 14, p. 20.)
On March 19, LoManto filed his grievance, invoking the
Board of Appeal procedure. (GC Exh. 43.) On March 25, he
also filed the initial unfair labor practice charge involved in this
case. (GC Exh. 1(a).) On August 4, the Board of Appeals held
a hearing regarding the grievance. A labor relations employee
conducted the proceeding. The Board was composed of two
supervisors and a dealer. The panel heard oral presentations
from LoManto and Nebbett and viewed the videotape.37 It did
not rule in LoManto’s favor. LoManto has not been employed
by the Company at any time since March 5.
D. Legal Analysis
1. The alleged violations of Section 8(a)(1)
Apart from the allegedly unlawful discipline of LoManto, the
General Counsel asserts that the Company committed three
separate violations of Section 8(a)(1) of the Act. Two of these
involve statements supposedly made by Niceta in the weeks
prior to the issuance of the discipline against LoManto. The

37 LoManto testified that, during the Board of Appeals hearing, Neb-
bett admitted discussing LoManto’s union activities during their March
5 meetings. Nebbett denied that this occurred. I find it inherently
implausible, given that the Board of Appeals hearing took place months
after the Regional Director had issued the complaint in this case alleg-
ing that LoManto was discharged due to his participation in those ac-
tivities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD996
third incident is alleged of have occurred during the March 5
disciplinary meeting between LoManto and Nebbett.
The first alleged violation concerns LoManto’s contention
that, in mid-January, Niceta entered the dealers’ lounge and
addressed a group of employees who were discussing the Un-
ion. LoManto testified that Niceta moved to the center of the
room, stated that “the dealers were cowards and that the Union
would never get in.” (Tr. 54.) He then departed.
If uttered as contended by LoManto, Niceta’s statement
would have constituted an unlawful assertion of the futility of
union organizing. T & J Container Systems, Inc., 316 NLRB
771 (1995).38 However, I find that the General Counsel did not
meet his burden of proving that the statement was actually
made. Niceta completely denied making it. None of the indi-
viduals that LoManto claimed as present were called to testify.
As a result, I am limited to weighing the relative credibility of
LoManto’s accusation and Niceta’s denial. For reasons previ-
ously discussed, I credit Niceta. As a result, there is no reliable
evidence to support this allegation. In reaching this conclusion,
I note that I have also considered “the totality of surrounding
circumstances.” Madison Kipp Co., 240 NLRB 879 (1979).
The credible evidence is devoid of any activity by the Company
that would indicate animus, unlawful or otherwise, against the
Union’s organizing effort or the participation of the Company’s
employees in that activity. There is simply nothing to support
LoManto’s claim, and I reject it.
The second alleged violation by Niceta concerns a conversa-
tion alleged to have occurred in mid-February. LoManto testi-
fied that Niceta approached him in a hallway to ask about his
“websites.” (Tr. 61.) He requested the names of the sites and
their purpose. LoManto provided the names and described his
plans for these sites as involving a chat room and an effort to
obtain discounts for dealers on goods and services. LoManto
claims that Niceta then advised, “it was in my best interest not
to put them up.” (Tr. 62.) Taking LoManto’s account at face
value, it is not entirely clear that Niceta was advising against
the creation of the websites for reasons related to union activity.
LoManto testified that he did not mention such activity in de-
scribing the sites and Niceta made no comment about the orga-
nizing campaign during their conversation. I do note, however,
that the sites had names suggestive of possible organizing activ-
ity such as “casinodealersalliance.org.” (GC Exh. 13.) If a
reasonable listener were to conclude that Niceta’s purpose in
recommending that LoManto desist from his plans had been to
discourage organizing activity, his statement would have been
unlawful. Miller Electric Pump & Plumbing, 334 NLRB 824,
825 (2001) (telling employee not to discuss the union with
coworkers during nonworking times constitutes a violation of
Section 8(a)(1).)
Assuming that Niceta’s alleged statement was made to deter
LoManto’s organizing activity, I am still confronted by the fact

38 It is interesting to compare Niceta’s alleged description of the em-
ployees as “cowards” to the manager’s description of union supporters
as being “stupid” in the recent case of Trailmobile Trailer, LLC, 343
NLRB No. 17 slip op. at p. 1 (2004). In that case, the Board found no
violation of Sec. 8(a)(1) in the manager’s pejorative remark. Signifi-
cantly, the Board also noted that the remark was not coupled with any
suggestion that union organizing was futile.
that there is no evidence to support LoManto’s account of the
conversation. Once again, Niceta completely denies any such
discussion. He also denies any knowledge whatsoever regard-
ing LoManto’s purchase of domain names involving casino
employees. LoManto does not contend that there were wit-
nesses to the alleged conversation. In addition, the fact remains
that there is no evidence of a suspicious context that would lend
support to LoManto’s claim. It is undisputed that the Company
did not commit any violations of the Act involving employees
other than LoManto. Similarly, it is not alleged that the Com-
pany made any statements or took any actions in opposition to
the organizing effort other than those asserted by LoManto. As
a result, LoManto’s uncorroborated claim stands devoid of
support. Based on my assessments as to the reliability of the
accounts provided by LoManto and Niceta, I find that the Gen-
eral Counsel has failed to carry his burden of proof as to this
claimed violation.
The final alleged violation of Section 8(a)(1) concerns
statements made by Nebbett during the disciplinary process on
March 5 that led to LoManto’s investigative suspension and
ultimate termination. In addition to issuing LoManto a written
warning arising out of the February 21 incident and an investi-
gatory suspension resulting from the March 5 incident, Lo-
Manto claims that Nebbett brought up the issue of union activ-
ity. LoManto recounted that Nebbett advised him that he was
aware of “my union involvement with Local 331 . . . . He said
for me to shut up, keep my mouth shut.” (Tr. 93.) If true, this
would constitute a clear violation of the Act. Teledyne Ad-
vanced Materials, 332 NLRB 539 (2000) (“well established”
that employer violates Section 8(a)(1) by telling employees
they cannot discuss unionization.)
Later in his description of this conversation, LoManto indi-
cated that Nebbett told him, “management said people were
saying things about me.” (Tr. 98.) He added that LoManto
would continue to find himself in trouble “until it was over.”
(Tr. 98.) The General Counsel contends that this reference
regarding reports to management about LoManto’s activities
constituted the creation of an impression of surveillance in
violation of Section 8(a)(1). If Nebbett made these comments,
it is not clear that they constitute such a violation. Recently,
the Board has expressed some concern that ambiguous state-
ments not be automatically construed as creating an unlawful
impression that management has been spying on the organizing
activities of its employees. For example, in SKD Jonesville
Division, 340 NLRB No. 11 slip op. at p. 2 (2003), the Board
found no violation where a statement about what a manager had
heard could have been based on corporate spying or simply the
results of the company’s “grapevine.”) See also, individual
members’ discussions of this question at footnote 10 in Wake
Electric Membership Corp., 338 NLRB 298 (2002). By con-
trast, the Board did find a violation when a manager told an
employee that he had “heard” that the employee was circulating
a petition about wages. Sam’s Club, 342 NLRB No. 57 slip op.
at p. 1–2 (2004),.
I need not resolve the issue presented by Nebbett’s purported
choice of words since I conclude that he did not make the
statements alleged by LoManto. Once again, the difficulty is
that this allegation rests entirely on LoManto’s uncorroborated
CAESARS ATLANTIC CITY 997
account. No witnesses are asserted to have been present. There
is no trustworthy evidence of a context of unlawful behavior by
Nebbett or other officials of the Company. Indeed, there is no
credible evidence of any opposition by the Company to the
Union’s organizing drive. In addition, the circumstances of the
March 5 meeting suggest that LoManto’s account is not plausi-
ble. The evidence shows that LoManto was sent to Nebbett’s
office in the immediate aftermath of an incident involving seri-
ous allegations of misconduct toward customers. Nebbett
placed him on investigative suspension due to his involvement
in this event. Nebbett testified that, in so doing, he believed
that the “likely outcome” would be LoManto’s termination
from employment. Given this context, it would make little
sense for Nebbett to suggest that LoManto’s union organizing
was under scrutiny or to tell LoManto to keep his mouth shut
regarding his protected activities. Such a warning seems out of
place during a disciplinary session arising immediately after
customers had lodged a serious complaint and occurring imme-
diately prior to the imposition of a suspension that ultimately
resulted in termination. I do not find LoManto’s version to be
credible. Given Nebbett’s belief that LoManto was about to be
fired, it would make no sense for him to warn LoManto against
participation in future union activities. Instead, I credit Neb-
bett’s testimony that he never raised the subject of LoManto’s
organizing activities and never instructed him to desist from
them. As a consequence, the General Counsel had not met his
burden of proof as to this allegation.
2. The Alleged Violations of Section 8(a)(3)
The heart of the General Counsel’s case against the Com-
pany is the contention that management issued a written warn-
ing, an investigative suspension, and a discharge to LoManto
because it wished to discourage the protected union organizing
activities of its employees in violation of Section 8(a)(3) of the
Act. In order to evaluate this claim, I must apply the analytical
framework established by the Board in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982).39 In American Gardens Management
Co., 338 NLRB 644 (2002), the Board reiterated the elements
of this test, noting that the General Counsel must show than an
alleged discriminatee engaged in protected activity, that the
employer was aware of such participation, that the discrimina-
tee experienced adverse employment actions, and that there
existed a motivational link between the protected activity and
the adverse actions. If these elements are established by a pre-
ponderance of the evidence, then the burden shifts to the em-
ployer to demonstrate that the same adverse actions would have
been imposed even in the absence of the protected activity.
In assessing the evidence within this framework, I have first
considered the direct evidence offered by the General Counsel
in support of his contentions. As previously discussed, that
direct evidence, except as to LoManto’s union activity, consists
entirely of LoManto’s uncorroborated testimony. I have found
that testimony to lack credibility. As a result, it cannot be re-

39 The Supreme Court approved the Board’s choice of methodology
in NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403
(1983).
lied upon as evidence in support of employer knowledge of
LoManto’s union activities or in support of the General Coun-
sel’s claim that the adverse actions taken against him were
motivated by unlawful animus against his protected activities.
See, American, Inc., 342 NLRB No. 76 (2004), slip op. at p. 1,
where the Board held that the judge properly refused to rely on
discredited testimony as evidence of discriminatory motivation.
Although there is no credible direct evidence in this case, I
recognize that the Board has held that it is “well established
that a discriminatory motive may be inferred from circumstan-
tial evidence and that direct evidence of union animus is not
required.” Tubular Corporation of America, 337 NLRB 99
(2001). In that case, the Board outlined the factors to be as-
sessed, including any evidence regarding suspicious timing, the
disparate nature of any discipline imposed, the quality of the
employer’s investigation and the reasons for undertaking such
investigation, the opportunity afforded to the employee to ad-
dress allegations of misbehavior, and the consistency of man-
agement’s actions when compared to its disciplinary policies
and its past practices. Finally, I note that the Board has also
cautioned regarding the limits of such circumstantial analytical
tools, observing that:
[w]hile the General Counsel may rely on circumstantial evi-
dence from which an inference of discriminatory motive can
be drawn, the totality of circumstances must show more than
a ‘mere suspicion’ that union activity was a motivating factor
in the decision. [Citation omitted.]
Cardinal Home Products, 338 NLRB 1004, 1010 (2003). I will
now discuss my analysis of each of these considerations as they
affect the outcome of this case.
At the first step in the evaluative process, I must determine
whether LoManto engaged in protected union organizing activi-
ties. It is clear that he did so. This was the only material aspect
of his testimony that was corroborated by another witness.
Union President Yeoman supported LoManto’s description that
he attended various union meetings and was “very vocal about
his right to organize.” (Tr. 292.) Documentary evidence also
supports LoManto’s testimony that he formally authorized the
Union to act as his representative. Given this supportive testi-
mony and evidence, I also credit his account of having distrib-
uted union literature and cards on the employees’ shuttle bus, in
the cafeteria, and, primarily, in the dealers’ lounge. All of these
activities fall within the protection of the Act.
The next element of the General Counsel’s evidentiary bur-
den concerns proof of employer knowledge of LoManto’s un-
ion activities. I begin by noting what is not in dispute. Almost
all of the Company’s managers testified that they were aware
that the Union was attempting to organize the dealers.40 Neb-
bett, Natello, Fineran, and Evans indicated that they had seen
union literature about the organizing effort. Niceta reported
that, in addition to seeing literature, he was told about the cam-
paign by a number of employees who initiated generalized
discussions of the issue with him. Krasowski testified that she
had heard conversations about this issue among dealers.

40 Solomon testified that he was unaware of the organizing cam-
paign.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD998
Documentary evidence confirms that the Company had copies
of union literature in its possession. In addition, the parties
have stipulated that another company supervisor, Dottie Bar-
one, had received a complaint from an employee regarding a
coworker’s request that he sign a union card.41 (Parties’ stipu-
lation dated December 28, 2004, p. 2.)
It is apparent that knowledge of the Union’s organizing cam-
paign, while not universal, was nevertheless widespread
throughout the managerial ranks. It would be inappropriate to
conclude on this basis that supervisors also had specific knowl-
edge of LoManto’s involvement in that campaign. Each of the
supervisors testified that they were completely unaware of his
participation at all times under consideration. The Company
employs 800 dealers. Two hundred of them were involved in
the organizing campaign at least to the extent of signing au-
thorization cards. Others were more active participants. Unlike
cases involving small companies, it is impossible to draw an
inference of specific knowledge based merely on the supervi-
sors’ awareness of the overall union campaign being conducted
among members of this large work force. 42
As direct evidence on the key point of specific knowledge of
LoManto’s role in the organizing effort, the General Counsel
offered only his testimony. In that testimony, he claimed that
Evans and Niceta witnessed his involvement in distribution of
union literature in the dealers’ lounge. He also contended that
Niceta and Nebbett both spoke to him about his involvement in
protected activities. In sharp contrast, each of those managers
testified that they were completely unaware of LoManto’s par-
ticipation in union organizing. Evans and Niceta denied seeing
LoManto with union literature in the lounge. Niceta and Neb-
bett denied speaking to LoManto about his union activities or
interests. I have weighed LoManto’s highly self-serving ac-
count against the denials of each of the persons he accuses of
misbehavior growing out of knowledge of his union activities.
I credit Evans, Niceta, and Nebbett in all respects. As a result,
there is no direct evidence that management knew of the nature
or extent of LoManto’s union sympathies or activities.
Turning to the Board’s analytical tools for assessing whether
sufficient circumstantial evidence exists to support a finding of

41 That supervisor sought review of the casino’s videotapes regard-
ing the complaint about union solicitation. I do not infer any animus
from this. The stipulation reveals that the purpose of examining the
tapes was to “attempt to narrow down the time and place of the inci-
dent.” (Stipulation of December 28, 2004, p. 2.) Since the Company’s
handbook limits solicitation to nonworking time and prohibits solicita-
tion in work areas, this investigation appears to be a legitimate attempt
to verify compliance with company rules. (Handbook at p. 15, GC
Exh. 14.)
42 Counsel for the General Counsel correctly notes that Niceta testi-
fied that several employees complained to him regarding aspects of the
Union’s organizing campaign. From this, he argues, “it is highly prob-
able that Niceta learned of LoManto’s support for the Union.” (GC Br.
at p. 33.) The Union was attempting to organize a group of 800 deal-
ers. Two hundred of them signed authorization cards. The evidence
established that, in addition to LoManto, other dealers were actively
involved in the campaign. Given the size of the work force and the
quantum of support for the Union, the fact that Niceta received a few
complaints does not establish any knowledge regarding LoManto’s
involvement. I accept Niceta’s credible testimony to the contrary.
employer knowledge, I will begin by examining the timing of
the events at issue. The disciplinary actions taken against Lo-
Manto, starting with the initiation of an investigation of the
February 21 incident, all took place in late February and March.
This coincides with the final weeks of the Union’s organizing
campaign. In appropriate cases, this confluence of key events
could properly support an inference of employer knowledge of
an alleged discriminatee’s union activities. Montgomery Ward
& Co., 316 NLRB 1248, 1253 (1995), enfd. 97 F.3d 1448 (4th
Cir. 1996). Such is emphatically not the case here. In order to
draw such an inference, I would have to find that the Company
imposed some control over the sequence of events by, for ex-
ample, contriving to punish LoManto for pretextual infractions
raised as mere smokescreens designed to defend against allega-
tions of unlawful discrimination.
The evidence clearly establishes that the Company did not
select the timing and sequence of the events in this case. Ossa-
kow, Thrower, and Milano chose to visit the casino on Febru-
ary 21. It was this decision by the casino’s customers that de-
termined the timing of the incident that occurred on that day.
By the same token, Adams, Costello, and Kelly chose to gam-
ble at the casino on March 5. It was these decisions taken by
independent actors that set the stage for the disciplinary actions
that followed. Furthermore, it was LoManto’s conduct on those
occasions that prompted the customers to lodge complaints.
The Board has repeatedly cautioned against drawing an in-
ference of knowledge or animus based on such events. In a
recent example, the Board observed,
[w]hile the employees’ union activities and the discharges did
occur within a relatively brief period, so, too, was there a
close proximity in time between the employees blatant mis-
conduct and the Respondent’s decision to terminate them.
Under these circumstances, the factor of timing is too weak a
foundation upon which to base a finding of pretext.
Syracuse Scenery & Stage Lighting Co., 342 NLRB No. 65 slip
op. at p. 4 (2004). This is particularly true here since the key
events were triggered by persons who had no association with
the employer. Sometimes a coincidence is simply a coinci-
dence. As the Board has noted, “coincidence, at best, raises a
suspicion. However, ‘mere suspicion cannot substitute for
proof.’” Frierson Bldg. Supply Co., 328 NLRB 1023, 1024
(1999) [Citation omitted.] I, therefore, accord no probative
weight to the timing of the events at issue.
Another circumstantial factor to be considered is the quality
of the employer’s investigation of allegations of misconduct,
including the reasons asserted for launching such an inquiry. It
is evident that the investigations in this case were primarily
undertaken in response to customer complaints. As to the Feb-
ruary 21 incident, it is virtually inconceivable that an employer
engaged in a customer oriented business would fail to investi-
gate a complaint by multiple patrons that was so strongly felt
that each individual prepared his own written report about it in
addition to making oral protestations to various supervisors.
Similarly, I find nothing suspicious in management’s decision
to investigate the March 5 incident, given that oral complaints
from customers were coupled with written reports from the
supervisors present on the floor indicating that they witnessed
CAESARS ATLANTIC CITY 999
key aspects of LoManto’s alleged misbehavior. The Com-
pany’s decisions to investigate these incidents raise no suspi-
cion whatsoever.
The quality of an employer’s investigation of alleged mis-
conduct is also a significant circumstantial factor in assessing
allegations of illegality. Rood Trucking Co., Inc., 342 NLRB
No. 88 (2004). In this case, I was highly impressed by the
manner in which the Company’s officials assessed the allega-
tions against LoManto. To begin with, the Company main-
tained and followed a policy of securing written statements
from all parties involved in an alleged incident. Indeed, report-
ing forms were kept on the casino floor so that they would be
readily available for this purpose. The compilation of written
statements is a hallmark investigatory technique employed by
professional investigators. For example, it is the technique
chosen by the General Counsel when gathering evidence re-
garding alleged unfair labor practices.43 It is recognized as a
particularly effective method because it forces witnesses to
reflect on the events while choosing their descriptive words. In
addition, it impresses those informants with the seriousness of
the investigation and, by documenting their assertions in per-
manent form, signals that the report writers will be held to ac-
count for the veracity and consistency of their statements. Fi-
nally, the compilation of witnesses’ accounts in the form of
documents permits the decision makers to study the record and
reflect prior to reaching final conclusions. I find the Com-
pany’s investigatory policy to be praiseworthy.
Not only did the Company have a policy in favor of written
statements, it actively employed that policy with respect to
LoManto. For example, when higher management discovered
that there had been a failure to obtain a statement regarding the
February 21 incident from LoManto’s immediate supervisor,
Krasowski, they insisted that one be procured. Far from strik-
ing me as irregular, this underscored the integrity of the disci-
plinary process employed. It manifested a desire to proceed
with deliberation and to obtain a complete record before mak-
ing any decisions. Included in that complete record was a writ-
ten statement from the employee whose behavior was under
examination. Indeed, LoManto testified that he was afforded 2-
1/2 hours to write his account of the March 5 events. This cer-
tainly suggests that management wished to give him the oppor-
tunity to make a full written presentation of his side of the
story.44 All of these procedures were a far cry from any rush to
judgment.

43 The NLRB Casehandling Manual, Part One—Unfair Labor Prac-
tice Proceedings, Section 10060, observes that written affidavits are
“the preferred method of taking evidence from witnesses” and represent
the “keystone” of an investigation because, “they set forth exactly what
each witness recalls and provide a permanent record of the testimony,
which can be relied upon in making a decision regarding the case.”
44 In assessing the quality of an investigation, the Board considers
whether the employer afforded the employee an opportunity to explain
his version of the events. Hospital Espanol Auxillo Mutuo de Puerto
Rico, Inc., 342 NLRB No. 40, slip op. at 3 (2004) (animus shown when
employer accepted complaints as true without affording employee an
opportunity to rebut them). As indicated, LoManto gave written ac-
counts of his participation in both incidents and these were considered
The same is true regarding the manner in which the Com-
pany employed a consensus approach to disciplinary decision
making. I was impressed that three different decision makers
were required to conduct independent reviews of the record and
formulate individual opinions. Only then did final group dis-
cussions occur. The resulting decisions were the product of
give-and-take and compromise. This was well illustrated by
the way in which the February 21 incident was resolved. Opin-
ions varied from issuance of a written warning, a final written
warning, or even termination. After careful discussion about
the nature of the evidence of misconduct and particularized
consideration of the employee’s past employment history, a
group decision was reached. That decision called for the impo-
sition of the least strict of the three alternatives that were under
consideration. Once again, the process employed in assessing
both incidents was one that was well calculated to produce fair
and reasonable results. And, in the manner in which manage-
ment implemented that process with respect to LoManto, I
conclude that such fair and reasonable results were obtained. I
find nothing in the disciplinary process to suggest any impro-
priety and much in that process to indicate that LoManto’s
discipline was the product of carefully reasoned business judg-
ments, free from any taint of illegality.
Finally, it is necessary to evaluate the Company’s discipli-
nary decisions within the context of the Company’s established
work rules and policies and its history of disciplinary actions
against other similarly situated employees. Turning first to the
consistency of the decisions involving LoManto compared with
the Company’s preexisting work rules and policies, I note that
the stated reason for his written warning was inappropriate
statements to customers, while the reasons given for his dis-
charge were insubordination and misconduct toward customers.
The record establishes that these grounds for discipline reflect
well-established company policies. The Company’s handbook,
issued to LoManto on September 28, 2000, clearly states that
“[i]nsubordination” and “[r]efusal or deliberate failure to per-
form work assignments” are prohibited forms of misconduct.
(Handbook at p. 18, GC Exhs. 14 and 14(b).) Two supervisors
reported that LoManto, while in their presence, refused to com-
ply with direct orders to resume dealing and to refrain from
talking to patrons. His discipline for this conduct was entirely
consistent with the Company’s preexisting written policies.
The Company’s handbook takes great pains to emphasize the
importance of proper conduct toward customers. In the intro-
duction, a high corporate official advises employees that,
[o]ur guests demand courteous and friendly service from all
of our employees . . . . We rely on you every day to help us

by management. In addition, during his series of meetings with Neb-
bett on March 5, LoManto was also given an opportunity to present an
oral justification of his behavior. I find that the Company took appro-
priate measures to obtain LoManto’s side of the story. See, Washing-
ton Fruit and Produce Co., 343 NLRB No. 125 slip op. at 7 (2004),
where the employee gave a written statement and the deciding official
terminated the employee without conducting an oral interview. The
Board characterized the employer’s investigation as “thorough and
complete.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1000
maintain the Legacy of Excellence we have created. [Italics in
the original.]
(Handbook at p. 3, GC Exh. 14.) Later, the handbook sets forth
the Company’s “Courtesy Policy,” noting that it is “in the hos-
pitality business” and that it wanted every guest “to be treated
with respect and understanding.” (Handbook at p. 10, GC Exh.
14.) Finally, to underscore the importance of this concept, the
list of disciplinary infractions includes, “[r]ude or discourteous
behavior to a guest.” (Handbook at p. 18, GC Exh. 14.)
The Company’s message to employees regarding customer
relations was reinforced in printed comments contained in the
annual evaluation forms issued to its staff. For example, in
August 2002, the employees, including LoManto, were re-
minded “not [to] lose sight of the significance of extraordinary
customer service.” In particular, they were enjoined to
“[r]emember to avoid crossfire—enjoy the company of your
players instead.” (GC Exh. 5.) Similarly, in June 2003, the
employees, again including LoManto, were counseled regard-
ing the importance of their “demeanor” and advised to “[c]ome
to work prepared to be an Entertainer.” (GC Exh. 4.)
As may well be expected of a customer service enterprise
engaged in a highly competitive field, management stressed the
importance of good customer relations.45 LoManto’s behavior
on February 21 and March 5 represented precisely the type of
“crossfire” that management instructed its employees to avoid.
The decision to terminate a dealer who, in the space of less than
two weeks, caused two separate groups of customers to become
angry enough to register vociferous complaints strikes me as
entirely consistent with the Company’s emphatic policies re-
garding customer relations. It does not support any inference of
impropriety.
I also find that the Company’s actions toward LoManto were
generally consistent with its previously articulated disciplinary
philosophy. That philosophy was succinctly expressed in the
Company’s handbook. This noted that the Company “usually”
employed “progressive discipline” which it clearly and simply
defined as “warning letters before termination.” (GC Exh. 14,
pp. 16–17.) I recognize that, in this case, the Company issued
its warning letter to LoManto on the same day that he was
placed on the suspension that ultimately ripened into his dis-
charge. As a result, he never had the opportunity to demon-
strate his response to the written warning. The reason for this
compressed sequence of events was LoManto’s poor behavior
toward customers on March 5. I find that management in-
tended to afford LoManto the benefit of the progressive policy.
The language of the written warning that had been prepared
prior to March 5 reflects this desire. In classic words com-
pletely consistent with principles of progressive discipline, it
plainly warns LoManto that future incidents of similar miscon-
duct may result in his discharge.
LoManto’s own actions on March 5 nullified the cautionary
intention underlying the warning by precipitating his suspen-
sion on the day he was issued the letter. I conclude that the
Company’s officials manifested an intention to comply with the

45 As to the competitiveness of the marketplace, Yeoman testified
that the Union either represented employees or engaged in organizing
activities involving eight casinos in Atlantic City.
disciplinary philosophy. The inability to completely comply
with that philosophy was caused by LoManto. Given the
changed circumstances, the decision to proceed with termina-
tion fit within the exception to the progressive policy outlined
in the handbook. In any event, I note that the essential purpose
of the progressive concept of discipline was fulfilled in this
case. On February 21, LoManto became involved in an inci-
dent resulting in customer complaints. His supervisor removed
him from the table and told the customers that he wished to
make them happy. When LoManto returned to duty, the super-
visor required him to prepare a written incident report. I con-
clude that he had every reason to believe that his conduct re-
garding customers was now under scrutiny. Furthermore, the
evidence shows that he did in fact reach this conclusion. Both
he and Krasowski testified that they had a conversation about
the February 21 incident several days later. It was apparent
from that discussion that LoManto was concerned about man-
agement’s response to the allegations of improper behavior.46
Because the Company’s actions had placed LoManto on no-
tice that his behavior toward customers was under examination,
the basic purposes of the progressive system of discipline had
been fulfilled. Although having been placed on notice regard-
ing the issue of customer service, LoManto chose to again be-
come involved in an unpleasant interaction with a group of
patrons. The expectation that imposition of progressive meas-
ures of discipline would obtain improved performance was
demonstrated to be in vain. In sum, I conclude that the Com-
pany’s conduct toward LoManto was consistent with its preex-
isting disciplinary procedures and philosophy. It does not pro-
vide any circumstantial evidence of knowledge of union activ-
ity or unlawful discriminatory intent.
I must next determine whether disparities exist between Lo-
Manto’s treatment and the treatment of other employees in
comparable situations. The parties have invested particular
energy in addressing this question, submitting numerous per-
sonnel records to support their respective contentions. In what
is perhaps a good illustration of the ambiguities involved in
making these comparisons, I note that files regarding several
employees were submitted as evidence offered in support of
both counsel for the General Counsel and counsel for the Re-
spondent’s positions as to this issue. I also note that caution
must be employed in comparing the detailed record developed
in this case regarding the full picture of the circumstances in-
volved in LoManto’s discipline with the limited information
that can be gleaned from employment files regarding the other
disciplined employees. Finally, I have excluded a number of
counsel for the Respondent’s assertedly similar situations from
consideration for two reasons. Two of those employees were

46 Indeed, if one were to credit LoManto’s account of this conversa-
tion, he was given even more reason for such concern. He claims that
Krasowski warned him that management appeared to be trying to get
him into trouble. In fact, I do not credit his version, finding Kra-
sowski’s account to be more reliable. Under that version, he initiated
the conversation seeking to learn the status of the investigation of the
incident. This is certainly evidence that he was aware that the quality
of his behavior toward customers was being examined. As Evans put
it, “he must have known, because he was requested to write the state-
ment, that there was a problem.” (Tr. 632.)
CAESARS ATLANTIC CITY 1001
actually supervisors. No evidence was presented indicating that
supervisory employees are subject to the same disciplinary
rules and procedures as nonsupervisory staff. Absent such
evidence, I decline to make such an assumption. It would be
entirely reasonable for an employer to hold supervisors to a
higher standard. As a result, it is inappropriate to include such
cases in my analysis. Additionally, the Company has submitted
a number of records involving discipline imposed after the
events in this case took place. Disciplinary decisions made
after LoManto’s discharge do not shed light on the Company’s
procedures as they existed at the critical time under assessment.
Turning now to the relevant records, it is necessary to begin
by considering LoManto’s situation. He was assertedly dis-
charged based on conduct involved in two incidents occurring
less than two weeks apart. The first incident concerned poor
customer relations. The second incident involved both poor
customer relations and two separate instances of insubordinate
conduct toward two different supervisors. Counsel for the
General Counsel correctly notes that LoManto had no prior
history of formal discipline. In addition, he had received satis-
factory yearly performance evaluations.47 He also received a
number of commendatory points awarded under the Company’s
recognition program and a letter of appreciation from custom-
ers.
This positive evidence regarding LoManto’s job perform-
ance prior to the incidents at issue is somewhat offset by con-
sideration of other evidence indicating a decline in his perform-
ance. There was credible evidence that LoManto’s supervisors
were concerned about his customer relation skills prior to Feb-
ruary 21. His immediate supervisor, Krasowski, testified that
he had received verbal counseling. Under cross-examination
by LoManto, Krasowski was asked about her general opinion
of his customer relation skills. She testified that it had been her
observation that he had a “very bossy, very lecturing” de-
meanor that adversely affected customers’ enjoyment of their
gambling experience. (Tr. 411.) Krasowski’s opinion was
supported by the comment of Supervisor Pilleggi in his report
regarding the February 21 incident. He concluded that report
by making note that,
[t]his seems to be an ongoing problem with Mr. LoManto and
should be dealt with in a stern fashion.
(CP Exh. 4.) LoManto also examined Nebbett regarding his
employment history, including the comment made by Pilleggi.
Nebbett responded that, while LoManto had no instances of
written discipline, “[t]here was, indeed, sentiment among some
of the Managers that he had a habit of behaving this way.” (Tr.
587.)
In my view, a full assessment of LoManto’s history prior to
February 21 indicates that he had a good employment record,
but was experiencing some deficiencies in job performance
related to customer service issues. He had been given verbal
counseling about this and his supervisors continued to view it
as a concern.

47 In each of these evaluations, he was rated as “effective.” (GC
Exhs. 4, 5, 6, and 7.) The Company uses a pass/fail system with only
two categories, effective and ineffective.
I must now compare the discipline of this employee for poor
customer relations and insubordination with records regarding
comparable cases. The General Counsel first cites the situation
of Joe C.48 (GC Exh. 45.) He was issued a suspension and
final warning for abandoning his post. Very shortly thereafter,
he engaged in a second incident of misconduct involving the
making of an improper gambling decision that cost the casino
money. Although he had been given a final warning very
shortly before the second incident, he was merely issued an-
other written warning for that event. I do not find this particu-
larly probative. The incidents did not involve customer service.
In addition, the employee explained that he abandoned his post
due to problems with medications recently prescribed for his
anxiety and depression. I do not find anything suspicious when
comparing his treatment to that of LoManto.
The General Counsel also cites the case of Michael M. (GC
Exh. 29 and R. Exh. 17.) He was terminated in May 2003.
However, he had a number of prior disciplinary problems, in-
cluding a history of inappropriate comments to supervisors,
sleeping on the job, and absenteeism. While he may have been
extended more consideration than LoManto, I note that he was
not accused of inappropriate interactions with customers. Im-
portantly, the record reflects concerns about his mental health,
including supervisory reports of his manic behavior. It also
reflects that the ultimate cause of his termination was for failure
to attend unspecified weekly sessions that may have been re-
quired therapy. I do not find any compelling similarities to the
case under consideration.
Counsel for the General Counsel also raises the discipline of
Michael C. (GC Exh. 26. and R. Exh. 12.) He received only a
final warning for inappropriate conduct toward a customer.
However, the records indicate that, “[w]hile Michael did not
say anything inappropriate to the customer, his tone of voice
was unacceptable.” (GC Exh. 26(b).) His offense was charac-
terized as “[f]ailure to remain calm under adverse conditions.”
(GC Exh. 26(f).) At least regarding the February 21 incident,
LoManto’s conduct was clearly worse. He not only used an
unacceptable tone of voice, but he also called a patron a
cheater. Less than two weeks later, he again became involved
in a customer relations incident and became insubordinate.
Both his conduct and management’s responses were more se-
vere than that involved with Michael C.
Both sides cite the case of Pablo T. (GC Exhs. 24, 25, 42
and R. Exh. 22.) I can understand why. He was terminated in
September 2003 for insubordination, consisting of his refusal to
follow the dealing instructions of his immediate supervisor.
This mirrors the insubordinate refusal of LoManto to resume
dealing and to refrain from discussing the matter with custom-
ers. However, it is also true that this employee appears to have
been given more opportunities under the progressive discipli-
nary system. He had persistent disputes with customers regard-
ing second-hand cigarette smoke and was warned about this
issue and about rudeness. However, despite being offered the

48 I will use initials to identify these employees. They are not in-
volved in this litigation and the files contain private, and potentially
embarrassing, information about them. I see no need to identify them
in this public document.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1002
opportunity to file written reports, his customers declined. The
best that can be said about this case is that it provides some
limited support to both sides.
Both sides also cited the case of Tommy C. (GC Exhs. 27,
28 and R. Exh. 10.) He was given a final warning in July 2003
for elbowing a fellow employee. He was terminated in Febru-
ary 2004 due to two episodes, one involving his yelling at a
coworker and the other concerning a customer complaint. In-
terestingly, he also refused to prepare an incident report regard-
ing that customer complaint. I find that his discipline is quite
consistent with that imposed on LoManto. He was issued a
warning for an interpersonal dispute. While that dispute was
more serious than LoManto’s because it involved violence, it
was not directed at a casino customer. In any event, his dis-
charge resulted from a combination of interpersonal problems,
including those involving a customer, and insubordination.
Having committed much the same offenses as LoManto, he was
subjected to the same disciplinary sanction.
The Company cites the case of Diane R. (R. Exh. 21.) She
was terminated in March 2002 for inappropriate interaction
with a patron and insubordination. Thus, her discipline was
entirely consistent with that meted out to LoManto. I note that
she had a prior disciplinary history of absenteeism. I do not
consider this factor to be significant. Review of the personnel
records submitted by both sides demonstrates that the Company
showed considerable tolerance for attendance problems.
The Company also directs attention to the discipline imposed
on Holly P. (R. Exh. 19.) She was issued a final warning for
insubordination in June 2000 due to making an inappropriate
remark to a supervisor while in the presence of customers. The
sparseness of this particular personnel record does not permit
me to make any strong conclusion regarding this episode, apart
from noting that the Company takes insubordination seriously.
A more interesting comparison involves the cases of John N.
and Walter J. (R. Exhs. 14 and 18.) These two employees
were both terminated in May 2003 for arguing with each other
in front of patrons. Natello had recommended suspensions, but
the ultimate decisions were for terminations. John N. had no
recent history of discipline except for absenteeism. As to that,
there was some brief indication in the file that he suffered from
an unspecified health problem. Walter J. also had no recent
performance related discipline. The termination of these em-
ployees appears to have been based on a stricter application of
the disciplinary policy than that afforded to LoManto.
All in all, while one could certainly split hairs in closely
evaluating the Company’s past behavior, I do not find any per-
suasive evidence that LoManto was subject to disparate treat-
ment. In reaching this conclusion, I note two pertinent observa-
tions by the Board. In Merillat Industries, Inc., 307 NLRB
1301, 1303 (1992), the Board recognized that, “it is rare to find
cases of previous discipline that are ‘on all fours’ with the case
in question.” This fact should not be permitted to defeat an
employer’s claim that it did not engage in disparate treatment.49
When viewing disciplinary records for purposes of comparison,

49 See also, the Board’s very recent discussion regarding evidence of
disparate treatment in Framan Mechanical, Inc., 343 NLRB No. 53 slip
op. at 9–10 (2004).
the Board also advised that a “Respondent’s defense does not
fail simply because not all the evidence supports it, or even
because some of the evidence tends to negate it.” 307 NLRB at
1303. In this case, I find that the preponderance of the evi-
dence on the issue of disparate treatment supports the Com-
pany’s position that LoManto’s discipline was generally consis-
tent with that imposed on other employees in similar situations.
I have carefully considered all of the analytical tools for as-
sessment of circumstantial evidence as outlined by the Board.50
They do not provide sufficient basis for concluding that the
disciplinary actions taken against LoManto in February or
March were influenced in any degree by knowledge of his pro-
tected activities. To the contrary, I conclude that the prepon-
derance of credible evidence establishes that the supervisors
who participated in the disciplinary process were unaware of
LoManto’s involvement in such activities. Based on this con-
clusion, it follows that the General Counsel has failed to meet
his initial burden of proof under Wright Line. See, Tomatek,
Inc., 333 NLRB 1350, 1356 (2001) (axiomatic that employer
could not have been unlawfully motivated if it was unaware of
protected activity.)
In the interest of decisional completeness, I will make brief
comments on the evidence regarding subsequent steps in the
evaluation process. In order to meet his initial burden, the
General Counsel must also demonstrate that unlawful animus
was a motivating factor in the decisions to warn, suspend, and
terminate LoManto. Once again, the only direct evidence of
such animus was LoManto’s unsupported testimony. I have
rejected it, finding the contrary accounts of numerous supervi-
sors to be consistent and reliable. As to circumstantial evidence
of animus, the evaluative process is essentially identical to that
employed in assessing the element of knowledge. For the rea-
sons discussed in detail regarding such evidence of knowledge,
I conclude that the General Counsel has failed to meet his bur-
den of showing that the Company was motivated, to any extent,
by unlawful animus against LoManto’s protected activities. At
best, the circumstantial evidence consists of “suspicion, sur-
mise, and conjecture,” factors the Board has precluded as ap-
propriate elements to support a finding of animus. Cardinal
Home Products, Inc., 338 NLRB 1004, 1010 (2003).
Lastly, I note that, although the employer’s defense to allega-
tions of unlawful discrimination is not reached in this case
since the General Counsel failed to meet his initial burden, it
has been necessary to evaluate the essence of that defense in
considering the circumstantial evidence of knowledge and ani-

50 The Board provided a comprehensive list of the factors that should
be employed in evaluating circumstantial evidence of knowledge of
union activity in Montgomery Ward & Co., 316 NLRB 1248, 1253–
1255 (1995), enfd. 97 F.3d 1448 (4th Cir. 1996). In addition to those
already discussed, the Board also mentioned any delay in imposing
discipline and evidence that multiple union supporters were simultane-
ously discharged. I conclude that the small delay in issuing LoManto’s
written warning was satisfactorily explained by reference to Evans’
unavailability during the period immediately after February 21 because
she was on vacation. As to multiple discriminatees, this factor points
against knowledge or animus since LoManto was the only employee
out of the 800 dealers who was allegedly disciplined for organizing
activity.
CAESARS ATLANTIC CITY 1003
mus. For reasons already discussed, I have concluded that the
employer’s evidence shows that LoManto was afforded a rea-
soned, deliberative, and appropriate disciplinary process, the
very process mandated by the Company’s procedures and past
practices. Based on the totality of the evidence, including the
credible testimony of the managers and supervisors involved, I
find that, even if one were to assume knowledge and animus,
the Company would have imposed the same discipline. I con-
clude that the Company, being engaged in a competitive cus-
tomer service business, would have discharged any employee
who, twice within the space of two weeks, caused groups of
customers to become irate, and who twice refused to comply
with direct orders issued by two different supervisors. This
combination of serious offenses was the cause of LoManto’s
discipline.
In reaching this ultimate outcome, I am mindful that the re-
cord disclosed a genuine difference in viewpoint as to the role
of the casino’s dealers. LoManto maintained a firm belief that
the primary duty of a dealer was to enforce the casino’s rules so
as to assure the integrity of the games of chance.51 The uni-
formly expressed view of the Casino’s managers, a group that
had many years of experience as dealers and floor supervisors,
was to the contrary.52 They held that the principal duty of the
dealers was to furnish the customers with an enjoyable enter-
tainment experience so as to create a desire to return for more
of the same. Certainly, I conclude that both philosophies are
reasonable.53 The difficulty for LoManto was that he was un-
able or unwilling to conform his conduct to meet the casino’s
priorities. In fact, he appeared incapable of understanding the
casino’s rather nuanced view. This was evident during his
cross-examination of Pit Boss Solomon regarding the propriety
of a customer receiving a chip from a friend in order to place a
bet. Solomon opined that if this happened once, it would be
“acceptable.” (Tr. 487.) LoManto responded,
LOMANTO: Does it matter if it’s one bet?
SOLOMON: One bet is acceptable.
LOMANTO: Isn’t a rule a rule?
SOLOMON: I mean it’s not a black and white area, it’s
a gray area.
(Tr. 487.) In fact, LoManto was perplexed by the management
philosophy even when it was offered in his own behalf. This
was illustrated by an exchange that occurred during LoManto’s

51 Interestingly, LoManto recognized that he stood rather alone in his
opinion. He repeatedly commented to supervisors and patrons that he
was the only dealer who enforced the rules. The evidence showed that
customers shared his perception in this regard, often expressing surprise
at the manner in which he attempted to do so when compared to their
experiences with other dealers.
52 This is not to suggest that the managers were unconcerned with
rule infractions. Counsel for the General Counsel closely questioned
Nebbett on this subject. Nebbett acknowledged that dealers are sup-
posed to enforce rules, but “[d]elivery is everything.” (Tr. 550.)
53 Indeed, as a judge, I am sympathetic by nature regarding Lo-
Manto’s desire to see people play by the rules.
cross-examination of Vice President of Casino Operations Ni-
ceta:
LOMANTO: Did you have a problem with my side-
burns?
NICETA: They were illegal, but they were okay.
LOMANTO: I’m sorry?
(Tr. 739.) As the court reporter’s correct choice of punctuation
for LoManto’s response to Niceta’s statement indicates, this
was an expression incomprehension, not contrition.
Of course, the point of all this is that in a dispute over priori-
ties and philosophies between an employer and an employee, it
is management’s prerogative to insist on employee conduct that
conforms to its viewpoint. As the Board has recently stressed,
in circumstances where there is no proof of discriminatory in-
tent,
we emphasize at the outset that “the crucial factor is not
whether the business reason cited by [the employer was] good
or bad, but whether [it was] honestly invoked and [was], in
fact, the cause of the change. Further, in making this determi-
nation, it is well settled that the Board should not substitute its
own business judgment for that of the employer in evaluating
whether an employer’s conduct is unlawful. [Citations omit-
ted.]
Framan Mechanical Inc., 343 NLRB No. 53 slip op. at pp. 4–5
(2004). Because LoManto failed to conform his behavior to the
employer’s requirements resulting in both customer dissatisfac-
tion and insubordinate conduct, the employer’s decision to
terminate him for such misconduct was not unlawful.
CONCLUSION OF LAW
The Company did not violate the Act in any of the ways al-
leged by the General Counsel in the complaint and notice of
hearing dated May 25, 2004.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended54
ORDER
The complaint is dismissed.

54 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.