Circus Circus Casinos, Inc. d/b/a Circus Circus Las Vegas

National Labor Relations Board - Administrative Judge Opinions

Dec 30, 2014

28-CA-120975 (N.L.R.B. Dec. 30, 2014)

JD(SF)–60–14
San Francisco, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CIRCUS CIRCUS CASINOS, INC.
d/b/a CIRCUS CIRCUS LAS VEGAS
and Case 28-CA-120975
MICHAEL SCHRAMM
Andrew Gollin, Esq. for the General Counsel
Paul Trimmer, Esq., for Respondent
DECISION
MARY MILLER CRACRAFT, Administrative Law Judge. In the fall of 2013,1 Charging
Party Michael Schramm (Schramm) worked for Circus Circus Casinos, Inc. d/b/a Circus Circus
Las Vegas (Respondent) as a temporary journeyman carpenter for special projects. After joining
a safety meeting discussion about employee exposure to second-hand marijuana smoke, he was
suspended and discharged for the stated reason that he failed or refused to attend mandatory
testing and fitting for a respirator.2 The General Counsel alleges that Schramm’s suspension and
discharge were actually due to Schramm’s protected, concerted activity of joining with other
employees who were complaining about a term and condition of employment and thus the
suspension and discharge violated Section 8(a)(1) of the National Labor Relations Act (the Act).3
The complaint also alleges that Schramm was threatened by his supervisor because Schramm
complained about exposure to second-hand marijuana smoke and that Schramm was denied
representation at the investigatory interview prior to his discharge.
On the entire record,4 including my observation of the demeanor of the witnesses,5 and

1 All dates are in 2013 unless otherwise referenced.
2 Schramm filed the unfair labor practice charge on January 22, 2014. Complaint issued on June 30,
2014. Hearing was held in Las Vegas on October 20-22, 2014.
3 29 U.S.C. §158(a)(1).
4 Pursuant to Respondent’s Motion to Correct the Transcript, the following substantive correction is
made at page 394, line 2: Insert “don’t” between “honestly” and “recall.” Further minor errors are
corrected as follows: Page 63, line 4: change “eschew” to “skew;” page 74, line 5: change “implied” to
“applied;” page 135, line 9: change “in” to “him;” page 412, line 19: change “right-line” to “Wright
Line;” page 575, line 13, insert “JUDGE CRACRAFT:” after “Honor” and before “Well.”
5 When necessary, credibility resolutions have been made based upon a review of the entire record
and all exhibits in this proceeding. Witness demeanor and inherent probability of the testimony have been
utilized to assess credibility. Testimony contrary to my findings has been discredited on some occasions
because it was in conflict with credited testimony or documents or because it was inherently incredible
Continued
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after considering the briefs filed by counsel for the General Counsel and counsel for the
Respondent, the following findings of fact and conclusions of law are made.
I. Jurisdiction and Labor Organization Status
Respondent admits it is a limited liability company with a place of business in Las Vegas,
Nevada, where it operates a hotel and casino. It further admits it meets the Board’s jurisdictional
standard for retail operations and that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that United Brotherhood of
Carpenters and Joiners of America, Southwest Regional Council of Carpenters and its affiliated
Local Union #1780 (the Union) is a labor organization within the meaning of Section 2(5) of the
Act. Thus this dispute affects interstate commerce and the Board has jurisdiction of this case
pursuant to Section 10(a) of the Act.
II. Facts
There are 176 employees in Respondent’s engineering department including laborers,
painters, carpenters, and engineers. These employees comprise four separate bargaining units
represented by four different unions. Rafe Cordell (Cordell), Chief Engineer, is in charge of the
department while Aaron Nelson (Nelson) is immediately below him serving as Assistant Chief.
The department performs maintenance, repair, construction, and remodels. Below Cordell and
Nelson, six section managers provide direct day-to-day supervision. Cordell is consulted for
guidance regarding disciplinary issues. Employees work three shifts which cover 24 hours each
day, 7 days per week.
In September, the engineering department hired six temporary journeymen carpenters
including Schramm. Carpenters work in teams and Schramm worked with another temporary
journeymen carpenter, Andrew Saxton (Saxton). The two of them were assigned to install anti-
theft metal doorjamb guards on all guest room doors using tamperproof metal screws. They also
installed aluminum channels on window slides to restrict window openings. There are 3767 guest
rooms. The temporary journeymen carpenters were supervised by Carpenter Foreman Brandon
Morris (Morris).6 Schramm encountered frequent exposure to second-hand cigarette smoke as
well as second-hand marijuana smoke on entering the guest rooms to perform his work.
A. Complaint regarding Employee Exposure to Second-hand Marijuana Smoke
Weekly safety talks, usually held at four times each Thursday, are conducted in the
engineering department by Henry Simms (Simms), Training Facilitator and Senior Watch
Engineer. Employees are on the clock during these meetings and are required to attend. Schramm
and Saxton along with about 12 engineers routinely attended the 3 p.m. safety talk. Either
Cordell or Nelson usually attended as well.
 At an Early November Safety Meeting which Cordell did not attend, Schramm
_________________________
and unworthy of belief.
6 At the time of the hearing, Morris no longer worked as carpenter foreman but he continued
employment with Respondent.
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and Engineer Fred Teeney (Teeney) voiced concern about workplace exposure to
second-hand marijuana smoke
Schramm testified that at a safety meeting in early November, an engineer named Fred
[Teeney] asked what Respondent was going to do about the second-hand marijuana smoke in the
guest rooms because it was affecting him. Schramm spoke up saying he had concerns too.
According to Schramm, assistant chief Nelson told Teeney that Respondent would look into the
matter. Tenney’s testimony as well as Nelson’s was similar to Schramm’s.7
Simms testified that Teeney brought up the topic of second-hand marijuana smoke at a
safety meeting. He could not recall if the meeting was in November or not. Simms remembered
telling Teeney that exposure to marijuana smoke was not a safety issue – there are no OSHA
regulations on it – it is a security issue. Simms did not recall that Schramm spoke at this meeting.
Simms believed that Cordell did not attend this meeting but was at a later meeting when Teeney
brought up this subject again.
Because he had received no immediate answer from Respondent, Teeney filed a
grievance regarding exposure to second-hand marijuana smoke requesting a procedure be put in
place to remedy the situation. Teeney’s grievance is dated November 12.
Based on the relative strength of their recollections, I find that both Schramm and Teeney
spoke up at this meeting. Both Nelson and Simms conditioned their testimony noting the relative
weakness of their recollections for dates and for which employees actually spoke at this meeting
as opposed to subsequent meetings.
 At a Second Safety Meeting Later in November or in Early December, Teeney
and Schramm voiced concern again about workplace exposure to second-hand
marijuana smoke
Then at later safety meeting, which Schramm thought was “getting near” Thanksgiving –
maybe the Thursday a week before (i.e., November 21) or maybe the Wednesday immediately
before Thanksgiving (i.e., November 27) -- Tenney raised the issue again stating a concern that
he might test positive on a drug test due to exposure to second-hand marijuana smoke. Any on-
the-job accident involving property damage or physical injury triggers drug testing of the
employee(s) involved.8 Teeney recalled raising the issue again because Simms had not responded
to his earlier statements of concern.
Both Cordell and Nelson were present at this meeting. Cordell opined, according to

7 Nelson could not remember whether Schramm spoke up at this meeting but remembered that other
employees spoke up at this and subsequent meetings where the issue of exposure to second-hand
marijuana smoke was raised.
8 The drug testing procedures for each bargaining unit are controlled by the applicable collective-
bargaining agreement. Section 13.03 of the Union’s contract sets forth procedures applicable to “all
employees” in the carpenters unit and provides for drug testing, inter alia, on probable cause or following
an accident resulting in injury or property damage. Although the contract does not explicitly says so,
according to Cordell, the term “all employees” includes temporary employees.
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Schramm, that the employees did not need to worry about a positive drug test due to exposure to
second-hand marijuana smoke. Schramm then spoke up stating that Cordell was not a
professional in evaluating exposure to second-hand smoke and a professional should make that
determination. Schramm shared his experience at a prior employer where, he stated, employees
were inundated with marijuana smoke – so much that they were inhaling it. Cordell once again
said there was nothing to fear and Schramm said Cordell did not know this for sure. Cordell told
employees to call security if they smelled marijuana smoke.
Tenney, who placed this meeting at “the end of November” and “before Thanksgiving,”
and “possibly the 21st,” objected when Cordell told employees to call security and stated that he
had done that on prior occasions and security would not do anything. Cordell said employees
could tell their supervisor and Schramm objected that this would not solve the problem. He asked
for an answer – a policy.
Similarly, Respondent’s witness Brian Machala, locksmith, attended a safety meeting on
an unspecified date in November where he recalled that Teeney brought up the subject of
second-hand marijuana smoke in certain areas of the building where he was working. Schramm
mentioned that he had run into the same situation. Cordell responded that employees should call
their senior watch or call security. Someone mentioned that there was no procedure and Cordell
stated that he would write a procedure. Either Teeney or Schramm expressed concern about
possibly failing a drug test due to second-hand marijuana smoke. There was back and forth
between Cordell and Teeney and Machala thought Cordell showed signs of frustration at having
to repeat the same thing over and over. Machala also remembered there was something said
about, “are you a doctor? Are you qualified to know the levels or, you know, how you would
pass or fail?” Cordell responded that he doubted anyone would show up positive on a “pee test”
by getting a whiff in the hallway.
Although Cordell recalled that Teeney raised the issue of second-hand marijuana smoke
at a late November safety meeting, Cordell recalled that the meeting involving Teeney and
Schramm both speaking up about second-hand marijuana smoke was a shift change meeting on
December 6.9
Cordell was certain of the December 6 date because it was the date when he announced
Respondent’s policy for dealing with second-hand marijuana smoke. Thus, around November 18
Cordell received a grievance from Local 501 Operating Engineers member Tenney about
exposure to second-hand marijuana smoke. In response to this grievance, Cordell and Tom
O’Mahar, business agent for 501, formulated a policy that employees should report the odor of
marijuana smoke to security so they could investigate the situation.
In any event, Cordell recalled that on December 6 at a shift change meeting which
Teeney and Schramm attended, he announced the policy that he and O’Mahar formulated which
was for employees to call security when they encountered second-hand marijuana smoke.

9 Respondent asserts that Cordell readily admitted that he “conflated” the late November safety
meeting and the December 6 shift change meeting. I do not find such an admission in the record. Cordell
clearly testified that the meeting involving both Teeney and Schramm speaking up about second-hand
marijuana smoke was on December 6.
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Cordell added that once security was called, the employee should move away to another area.
Cordell’s testimony mirrored that of Schramm, Teeney, and Machala as to the substance
of the meeting, regardless of whether it was in late November or on December 6. Cordell
testified that after the policy was announced, Teeney spoke up stating that he wanted an
exemption from a positive drug test and Schramm joined in this request. Cordell recalled that
Schramm stated that in his prior work at another Las Vegas hotel, the exposure to second-hand
marijuana smoke was ten times worse than at Respondent’s. Cordell recalled noting, in response,
that Schramm passed the pre-employment drug test with Respondent anyway so there should be
no danger of a positive test due to second-hand exposure. Cordell recalled that Schramm and
Teeney countered that he (Cordell) was not a medical professional.
Respondent presented 4 additional witnesses regarding the safety meeting. All of them
were vague regarding the exact time of these meetings. For instance, Respondent’s witness
Gerardo Tejeda (Tejeda), Swing Shift Labor Foreman, recalled attending a safety meeting “in
November” where Teeney complained about exposure to second-hand marijuana smoke while
making room calls. Teeney stated he was concerned about the marijuana smoke getting in his
system. Schramm spoke up with the same concerns. Cordell responded that he did not think the
drug could get into a person’s system by smelling it in the hallways.
Respondent’s witness Tim Cole (Cole), Assistant Chief of Facilities, recalled attending a
safety meeting on an unspecified date in November in which Tenney brought up the issue of
exposure to second-hand marijuana smoke. Cole remembered that Schramm also joined the
discussion and mentioned something about his prior place of employment having the same
problem. Cole recalled that Cordell told the employees they should report it to security. Simms
thought Cordell responded that it was a security issue. Simms did not remember anyone else
speaking up about second-hand marijuana smoke.
Nelson testified that he regularly attends the Thursday safety meetings. He recalled
Tenney raising the issue of second-hand marijuana smoke on “probably at least three [occasions]
in November.” Nelson recalled explicitly that Schramm expressed concern about the second-
hand marijuana smoke and failing a drug test due to that exposure. Nelson also recalled that
Schramm talked about exposure at his prior workplace too. Nelson thought at another meeting,
Cordell announced a policy to call security.
It is clear that only Schramm, Teeney, Cordell, and Machala were testifying about the
same meeting. The testimony of Tejeda, Cole, Simms, and Nelson is so vague that it is
impossible to determine if these witnesses were present at the same second meeting. After all,
there are four safety meetings each Thursday. Thus, because Schramm, Teeney, Cordell, and
Machala presented substantially identical testimony on this issue, I find that Teeney and
Schramm voiced concern about workplace exposure to second-hand marijuana smoke at a
second meeting held in late November or early December.
 At the Second Safety Meeting Later in November or in Early December, Cordell
told Schramm that perhaps Respondent might not need his services any more
After the dialogue between Cordell, Schramm and Teeney, set out above, the testimony
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of these three witnesses diverges. According to Schramm, Cordell became red faced and asked
whether moving Schramm to another area would solve his problem with exposure to second-
hand marijuana smoke and Schramm said it would not because other employees would still be
exposed. Cordell then said, “Well, you know what, maybe we just won’t need you anymore.”
Tenney said that sounded like a threat and Schramm responded, “No, that didn’t sound like a
threat; that was, in fact, a threat.” Cordell “just got redder and redder in the face, he turned
around [and] abruptly left the meeting.” After this meeting, Schramm continued to discuss the
issue with his coworkers and requested that Union Steward Jerry Mong raise the issue at the next
stewards’ meeting.
Tenney recalled that Schramm told Cordell that Cordell could not possibly know whether
exposure to second-hand smoke could cause an employee to test positive. Tenney recalled that
Cordell told them they could move to another area and Schramm rejected this stating that other
employees would still have to work in the area and asked what Respondent was going to do.
According to Tenney, “Mr. Cordell, he turned red and said to Mr. Schramm, well maybe we just
won’t have a need for you.” Tenney said, “that sounds like a threat to me” and Schramm
responded, “that didn’t just sound like a threat, that was a threat.” Then Cordell turned and left
the room.
Cordell denied that any statement was made about perhaps not needing Schramm’s
services anymore. Cordell also denied that he threatened Schramm:
Q Okay. Did you say something like, we just won't have any need for you to
Mr. Schramm?
A No.
Q Okay. Did you tell Mr. Schramm that he'd be discharged?
A No, I did not.
When asked if he recalled anything further, locksmith Machala, who was subpoenaed to
testify by Respondent, stated, inter alia, “That was really about it.” Machala was not asked
specifically whether Cordell threatened Schramm or made a statement to Schramm about maybe
not needing Schramm’s services anymore. Machala recalled that the discussion between
Schramm, Teeney, and Cordell was about 5 minutes with a lot of repetition requiring Cordell to
answer the same question numerous times. Machala opined that Cordell appeared frustrated.
As mentioned before, the remaining four witnesses offered only vague testimony and it is
uncertain that they were discussing the same meeting because none of them recalled the portion
of the conversation dealing with the request for a medical professional to evaluate the situation.
In any event, these four witnesses portrayed Cordell’s demeanor as thoroughly professional and
Schramm’s demeanor as agitated.
Nelson recalled that Schramm raised his voice showing excitement and that Cordell did
not raise his voice or look agitated or upset although he had to repeat himself a few times.
Nelson was specifically asked about a threat: “Q: Do you recall Mr. Schramm saying something
like, that was a threat? A: I don't -- you know I couldn't swear on saying that, no.
Simms described Teeney as being generally vocal and dramatic but did not recall Cordell
being vocal and dramatic at the meeting. Simms was not specifically asked if he recalled a threat
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by Cordell of not needing Schramm’s services any further. Tejeda observed Cordell’s behavior
as normal, professional, “just holding the meeting.” After testifying about everything he recalled,
Tejeda stated that Cordell did not say anything else. Tejeda was not asked about the alleged
threat.
Cole, whose recollection of the meeting was admittedly minimal, recalled the Cordell
said employees should call their senior watch if they encountered second-hand marijuana smoke.
Cole did not observe that Cordell raised his voice or turned red in the face. Cole recalled that
Cordell was smiling during the meeting. Cole did not recall anything else about the meeting
except the subject of marijuana smoke being raised.
The testimony of Tejeda, Nelson, Simms, and Cole is entitled to little weight. The record
reflects that second-hand marijuana smoke was discussed at least two or three times. Each of
them recalled one instance of dialogue between Cordell, Schramm, and Teeney about second-
hand marijuana smoke. They could not identify when the meeting they attended took place.
Based on the relative weight of their testimony, witness demeanor, and inherent
probabilities, I find that Cordell stated in response to Schramm’s assertion that Cordell was not
an expert on exposure to second-hand marijuana smoke that perhaps Respondent would not have
further need of Schramm’s services. Although Cordell denied making this statement, no other
witness presented by Respondent was specifically asked about this statement. Further, many of
these witnesses had admittedly vague recollections. They testified variously that Cordell
maintained a professional demeanor, was not vocal or dramatic, did not raise his voice or turn
red in the face and was smiling, but may have shown signs of frustration at having to repeat the
same thing over and over. Further it is questionable which meeting these witnesses testified
about. Even if the witnesses were testifying about the same meeting, the absence of a
recollection one way or the other regarding a threat is absent from the record. For the witnesses
called by Respondent, this was just another weekly safety meeting. For Teeney and Schramm, it
was a memorable occasion. I find it more inherently probable that their recollections are true to
the facts. Both were forthright and thoughtful in their testimony. Moreover, although Cordell
denied making a threat, it is telling none of Respondent’s witnesses, including Machala, was
tested on this point.
Both Schramm and Teeney, a current employee,10 recalled this incident in exactly the
same manner. Both were forthright, non-argumentative witnesses whose demeanors evinced
thoughtful reflection of each question and an attempt to answer according to their respective
recollection of the actual event. Further, their testimony is supported by an independent witness,
Machala – not specifically as to a threat. He wasn’t asked about that. But in every other aspect,

10 As the Board stated in Portola Packaging, 361 NLRB No. 147, slip op. at 1, fn.2 (2014), the judge
relied on “Well-established Board precedent holding that the testimony of current employees ‘in direct
contradiction to certain statements of their present supervisors . . . is apt to be particularly reliable,
inasmuch as the witness is testifying adversely to his or her pecuniary interest, a risk not lightly
undertaken.’ Gold Standard Enterprises, Inc., 234 NLRB 618, 619 (1978), enf. denied on other grounds
607 F.2d 1208 (7th Cir. 1979).” This factor is one among many utilized in resolving credibility issues.
Flexsteel Industries, 316 NLRB 745, 745 (1995), affd. mem. 83 F.3d 419 (5th Cir. 1996).
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Machala’s testimony is identical to that of Schramm and Teeney. Thus, on the record as a whole,
I credit the testimony of Schramm and Teeney that Cordell stated that perhaps Schramm’s
services would no longer be needed in response to Schramm’s insistence that a professional be
consulted for the potential effects on employees of workplace exposure to second-hand
marijuana smoke.
 Although Teeney told Schramm that he entered Cordell’s threat on a Blackberry
memorandum, there was no such entry for November 21 or December 6
Hot SOS (Hotel Service Optimization System) is a computer maintenance management
system which tracks work orders. Teeney and other employees (but not Schramm) were provided
with Blackberries to monitor work orders. Employees can add a memorandum to the work order
to update the status of the order. Tenney routinely created work orders for meetings. Teeney
testified that he used Hot SOS to note that Cordell had threatened a carpenter.11 He thought it
said “Rafe [Cordell] threatened carpenter.” As stated above, Tenney thought this meeting
occurred at the end of November, before Thanksgiving, possibly on November 21 – the
Thursday before Thanksgiving. As part of its case, Respondent produced its Hot SOS records for
the Blackberry utilized by Tenney on November 21. The records indicate a “meeting” with two
memoranda notes about the meeting but there is no mention of a threat.
11/21/2013 15:10 – informed supervisors @ safety meeting that I get headaches
when hallway is full of marijuana smoke. Memo was created on HOTSOS2GO
112/21/2013 at 3:11 PM
11/21/2013 15:31 Asked Rafe, Aaron and tim for procedure on Marijuana smoke.
Rafe stated, call senior watch. Memo was created on HOTSOS2GO 11/21/2013 at
3:31 PM
Respondent also offered Teeney’s Hot SOS records for December 6 which indicate that
he created a work order for a “meeting” from 2:58 p.m. to 3:41 p.m. No memoranda were
recorded on this work order.
 The absence of a Hot SOS memorandum regarding the threat does not negate the
testimony of Schramm and Teeney
It is clear that Schramm and Teeney did not hear each other’s testimony, and they
testified that they did not discuss their testimony prior to the hearing. Although it is troubling
that Teeney’s Hot SOS memoranda for the November 21 and December 6 meetings do not
reflect a threat, as he thought he had done, the record is unclear whether the meeting in which the
threat was allegedly made was actually on either November 21 or December 6. Thus it is unclear
whether Teeney’s Hot SOS records for other dates might indicate that a threat was made.
Moreover, the record does not indicate that Teeney was able to access previous Hot SOS
memoranda to refresh his recollection about what was actually written. Thus, under all of these
circumstances, I find that the absence of a Hot SOS memorandum on either November 21 or
December 6 does not necessarily contradict Teeney’s assertion that he created such a

11 Tenney did not know Schramm’s name at the time.
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memorandum and, even if it did completely contradict Teeney’s assertion, this fact alone does
not require that Teeney’s testimony be rejected as unworthy of belief given my prior findings
that his testimony was inherently credible and entitled to greater weight than that of witnesses
presented by Respondent.
 Absence of the Hot SOS memorandum for November 21 and December 6 does
not negate credible evidence that a threat was made
I find that the absence of a Hot SOS memorandum for either November 21 or December
6 does not negate testimony that Cordell stated, as Schramm and Teeney credibly testified, that
perhaps Respondent would no longer need Schramm’s services. Although Teeney testified that
he made a Hot SOS memorandum regarding the statement at the time of the meeting, Teeney
could not recall the date of the meeting when Cordell stated that maybe Respondent did not need
Schramm’s services. Teeney testified variously that the meeting occurred at the end of
November, before Thanksgiving, possibly the 21st.
Teeney testified that he created Hot SOS tasks for each meeting. The only meetings for
which Respondent introduced Teeney’s safety meeting notes were for the meetings of November
21 and December 6. It is equally possible that the meeting at issue took place earlier than
November 21 at a different safety meeting. It is also possible that Teeney, who made memos to
the November 21 meeting, simply mis-remembered the substance of his memo. There is no
evidence that employees are able to access past memoranda so no evidence that Teeney was able
to refresh his recollection.
Thus, under the circumstances that it is possible that Teeney misremembered the
substance of his Hot SOS memo or that his memo is appended to a different meeting, I find the
absence of a Hot SOS memo to the effect that a threat was made on November 21 or December 6
does not negate the credible testimony that a threat was made.
B. Respirator Masks
The older sections of Respondent’s physical facility contain what is known as “presumed
asbestos containing materials.” Carpenters and other trades may sometimes be required to work
with or cut these materials. Accordingly, for this and other reasons, all engineering department
employees, whether temporary or permanent, are required to utilize respiratory protection
pursuant to Respondent’s Respiratory Protection Program (RPP). Respondent provides each
employee who may work with hazardous or potentially hazardous materials a personal respirator
mask after the employee has been evaluated and fit tested. The testing is conducted by
contractors.
Annually, the process begins with each employee completing a medical questionnaire
which is submitted in a sealed envelope to a contract doctor. Contrary to Respondent’s
assertion,12 I find that employees have the right to speak to the doctor about the content of the

12 Respondent asserts in its post-hearing brief that it was not required to make a medical professional
available before an employee completed the questionnaire, citing 29 C.F.R. §1910.134 (e)(4)(i) but
quoting 29 C.F.R. §1910.134(e)(4)(ii): “The employer shall provide the employee with an opportunity to
Continued
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questionnaire before the questionnaire is submitted. Thus, the RPP Section 5.0 provides in
relevant part,
The medical evaluation requires that the questionnaire . . . be completed by the
employee, confidentially, during normal working hours, and at a time and place
convenient to the employee. The employee has the right to contact the Contract
Doctor to discuss the content of the questionnaire. When the questionnaire is
completed, the employee will seal it in an envelope, and forward it to the
Respirator Program Administrator, who will send it, unopened, to the Contract
Doctor for evaluation. If the physician questions the ability of the employee to
perform assigned tasks while wearing a respirator for any reason, a medical
examination shall be performed.
“Employees are responsible for completing the questionnaire” and must “identify any
health issues that may complicate the wearing of a respirator.”13 Once the questionnaire is
submitted, it is reviewed by the contract doctor to determine whether there are any abnormalities
or a history warranting further medical examination. If none, the employee is fitted by Simms
and issued a respirator mask. However, if there are concerns raised by answers to the medical
questionnaire, the employee meets with the doctor for evaluation.
In agreement, Karl Beeman, safety manager, explained that the respiratory mask process
begins with a written questionnaire formulated by OSHA. If an employee passes the
questionnaire, i.e., if no medical issues are raised, the employee is fitted with a respirator without
seeing a doctor. However, if answers to the questionnaire raise issues of ability to wear a
respiratory mask, additional medical screening follows. If that is passed, the employee is then
fitted with a mask.
Although this process appears rather straight forward and easy to understand, there is no
evidence that the exact nature and order of the process would have been known to a new
employee such as Schramm who had never undertaken the respiratory mask testing on a prior
occasion. In any event, employees who cannot wear a mask are not issued one and are not
assigned to any area where a respirator mask might be required. Employees are not terminated or
disciplined due to inability to wear a respirator mask.
On the morning of December 10, Simms notified Schramm that he “was going to have a
fitting today” and would need to take the respirator exam between 2 and 2:30 that afternoon.
_________________________
discuss the questionnaire and examination results with the PLHCP (physician or other licensed health care
professional). According to Respondent, the reference to examination results “presupposes the completion
of the questionnaire” before there is a right to consult the doctor or other licensed health care provider.
However, the regulation may also be read to mean that an employee might consult either to discuss the
questionnaire or to discuss the examination results. In any event, Respondent’s RPP unambiguously states
that the employee may consult the doctor prior to completing the questionnaire. This is also consistent
with 29 CFR §1910.134 (e)(4)(i) which provides, “The medical questionnaire and examinations shall be
administered confidentially during the employee’s normal working hours. . . . The medical questionnaire
shall be administered in a manner that ensures that the employee understands its content.”
13 RPP, Section 3.0.C.
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Later that morning, Schramm’s foreman Brandon Morris told Schramm he might go right after
his lunch at 1:30 p.m. so he would not have to waste time going back up to his work site in the
tower after lunch and then back down at 2 p.m.
Schramm reported to the contract respirator clinic at about 1:35 p.m. He testified that due
to personal problems – anxiety from putting on a mask -- he wanted to “slip in and talk to the
doctor.” Schramm encountered two unknown men [contract clinic personnel] at the entrance who
gave him some forms, probably releases, to fill out. He told them that before he did that, he
wanted to see the doctor due to personal problems: “I have personal problems and I’d like to see
the doctor. . . . Well, I want to see her before I begin this [process].” The men denied Schramm
access to the doctor unless he completed the preliminary paperwork and preliminary medical
exam questionnaire first. Schramm told them he would go talk to his foreman and come back at
his appointed time between 2 and 2:30 p.m.14 He told them he “would straighten this out because
I got to see her [the doctor].” The contract clinic personnel did not testify.
On cross-examination, Schramm was closely questioned about his intentions:
Q Okay. So you thought that you should be exempted from a work
requirement.
A No.
Q No.
A No, I thought I was to be exempted from wearing that mask, because it
causes me such an anxiety, and this is something I wanted to discuss with the
doctor --
Q I understand.
A -- not with anybody else.
Q So you wanted to be exempted from wearing a respirator completely --
A I wanted --
Q -- is that right?
A -- I wanted an exemption from wearing the respirator, yes.
On December 10, Karl Beeman, safety manager, received a phone call from the contract
clinic personnel in the respiratory mask testing area stating that an employee had refused to
“take” the questionnaire. When Beeman reported to the area, he was told by clinic personnel that
an employee had “refused to take the exam and instead wanted to see the physician directly.”
Beeman was told the request to see the doctor had been refused by the contract clinic personnel.

14 Two individuals testified that they overheard Schramm’s conversation at the clinic. Edward
Romero, laborer, reported for his respirator mask testing and observed Schramm talking to the two
medical technicians administering the program. He overheard Schramm say that he did not want to take
the test and that he should not have to take the test. He further recalled Schramm saying, “I’m not going
to take the test. I don’t need to.” Gerardo Tejeda, swing shift labor foreman, was present at the clinic
when Schramm reported and heard Schramm say, “Why do I have to take a physical?” Then Schramm
walked out saying, “I’m not going to do it.” There is no evidence that either of these individuals were
interviewed by HR in relation to the decision to discharge Schramm. Nor do I find this testimony, if
credited, corroborative of the reports given to Cordell by Beeman and Simms regarding what the contract
personnel told them about Schramm’s statements. Thus, their testimony is disregarded.
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Beeman reported this information to Cordell who told him to send an email stating the relevant
facts.
On a routine visit to the respirator testing area on December 10, Simms was told that
temporary carpenter Schramm “had refused to do the medical” – had refused to undergo the
medical exam. Simms reported this to Cordell who instructed him to send an email report on the
matter.
In the meantime, Schramm returned to work in the tower. He could not find his foreman
so he waited for him to come through on his normal rounds at 2 p.m. Schramm told his partner
Saxton what had transpired at the respirator mask testing area and Saxton said that he had failed
the respiratory mask test. Schramm responded, “Well, I wish they’d exempt me. I want an
exemption.” Saxton’s phone rang at that point and after answering the phone, Saxton told
Schramm that Morris wanted Schramm to come down to the shop.
 Suspension Pending Investigation
Morris recalled that about the time Schramm should have been taking the respiratory
exam, Cordell called Morris and told him to have Schramm report to the office. Morris
responded that Schramm was in the respiratory exam “right now.” In any event, Morris called
Saxton’s personal cell phone15 and told him to have Schramm report to the shop. Schramm
reported to Morris and they proceeded to Cordell’s office. Although Cordell did not recall what
time the meeting took place, both Morris and Schramm recalled that the meeting took place
around 2 to 2:10 p.m. Neither of them knew the reason for the summons. When they got to
Cordell’s office, Cordell told Schramm that he was suspended pending investigation for refusal
to take the respiratory exam which was an OSHA requirement. Schramm testified that he
responded that he didn’t refuse the exam – he just went down early because he wanted to see the
doctor – that in fact his appointment time was right now. Schramm said he would go right away
and take the exam. According to Schramm, Cordell said it was too late to take the exam. Cordell
refused saying, “No, you’re suspended.”
Morris accompanied Schramm to Cordell’s office and recalled that Cordell put Schramm
on suspension pending investigation because Schramm refused to take the respiratory test which
is an OSHA requirement. Morris recalled that Schramm protested saying, “Who is this doctor?”
and “I know my body better than them.” Morris did not independently recall Schramm asking to
take the exam at the time of the suspension and he was not questioned about it specifically either.
After Schramm was suspended, Morris and Schramm left Cordell’s office and Morris wished
Schramm good luck and gave him the number for the Union.
Cordell denied that Schramm said that his appointment time had not yet elapsed but did
not deny that Schramm offered to take the exam right away. Cordell’s testimony was that the
merits of the situation were not at issue for purposes of announcing the suspension and he was
not following what Schramm said regarding the merits. Cordell just wanted to deliver the
suspension pending investigation.

15 Temporary employees are not issued Blackberries. Schramm’s personal cell phone had spotty
reception in the towers so Morris called Saxton’s personal phone instead.
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Q All right. So he didn't tell you had he had tried to talk to the doctor. He
didn't say that during the meeting.
A That was not part of the meeting. The meeting was just to remove him
from the workplace, and I was not conducting an investigation, I was not
conducting any --
Q I understand.
A -- anything like that.
Q You may not have made that inquiries, but did he volunteer any
information as to what he had done and what had happened?
A He was -- I don't remember what it was that he was -- he was excitable,
and very loud, and very combative, and I didn't -- so I just wanted to make sure
the situation was calm, and he understood that he was being removed from the
workplace so we could investigate it, and he --
Q Did he indicate to you --
A -- would have the opportunity to do that at a later date.
Nelson also attended the suspension pending investigation meeting. He did not recall
specific conversation but remembered that the purpose of the meeting was to deliver the
suspension but not to get into the merits of the situation.
The notice of suspension pending investigation, which Schramm signed, stated that he
would have the opportunity to attend an investigational meeting with employee relations at a
later time. Cordell also submitted an internal memorandum to employee relations stating in part,
“Employee refused to go through evaluation for respirator . . . .”
Morris escorted Schramm to get his personal possessions. Schramm asked Morris for the
Union’s phone number as Morris escorted him from the property. Using the number provided by
Morris, Schramm called the Union hall and left a voicemail message about his suspension and
asked for help from the Union.
It is clear that Cordell was not interested in discussing the merits of the situation at the
suspension meeting. He admittedly did not listen to what Schramm said. His focus was to
remove Schramm from the workplace. Further, I note that Cordell did not deny that Schramm
offered to take the test right away. Both Nelson and Morris had little recollection of the meeting
and were not questioned closely regarding what was said at the meeting. Accordingly I find that
Schramm’s testimony, which was detailed and inherently probable based on the timing of the
situation, should be credited.
Based upon Schramm’s testimony and the reports of Beeman and Simms, I find that
Cordell was orally advised around 2 p.m. that Schramm had refused to take the respiratory exam
and he wanted to see the doctor directly. Cordell immediately made a decision to suspend
Schramm. When called into Cordell’s office around 2 to 2:10 p.m. and told he was suspended for
refusal to take the exam, Schramm countered that he did not refuse to take the exam. He just
wanted to see the doctor. Schramm offered to take the exam right away noting that his test time
had not expired. Cordell did not want to discuss the merits of the situation at that point and
refused to allow Schramm a chance to take the exam during his 2 to 2:30 test window period.
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 The Investigation
Airth Colin (Colin), HR Business Partner Associate, was contacted by Cordell on
December 10 to handle the investigation of Schramm. The emails from Beeman and Simms to
Cordell were forwarded to her. She also spoke to Beeman and Simms in person.
Beeman’s email to Cordell of December 11 reiterated the information he received from
contract personnel on December 10 stating, in relevant part,
We were advised [by clinic personnel] that . . . Schramm refused to take the
physical exam. [Schramm] did not fail the exam nor did he need to be rescheduled
for other reasons. [Clinic personnel] stated clearly that Mr. Schramm refused to
participate in the process from the very beginning. The only step Mr. Schramm
was willing to take was to sign in.
Simms’ 2:42 p.m. December 10 email to Cordell which was forward to Colin stated, inter
alia, “Manny [clinic technician] told us that Michael Schramm had stated that he could not wear
a respirator and that he would not go through the testing. He then left the clinic without going
through the tests per Manny.”
According to Colin’s notes and testimony regarding her interview with Beeman, Beeman
told her that Schramm would “not allow the pre-screening to be done. He just wanted to go see
the Dr. Don’t know if he knows job is secure. Just get reassigned to tasks that don’t require
respirator.” Similarly, Colin’s notes of her discussion with Simms on December 12 indicate that
Simms reported that Schramm said, “I cannot wear a respirator so I don’t need to go through the
test.”
 Due Process Meeting, December 13
On December 12, Schramm was informed that he was to report for a meeting on the
following day. Schramm had not heard back from the Union from his December 10 call so he
called the Union again and left another message stating the date and time set for the meeting with
human resources. Schramm did not receive a return call from the Union. Colin agreed that she
spoke to Schramm on December 12 and set the time and date for the due process meeting for the
following day at 3:30 p.m. Colin testified that she told Schramm that if he wanted Union
representation that he needed to bring the steward with him.
On December 13, the “due process” meeting with Schramm took place in the human
resources offices. In order to report to the meeting, Schramm walked through the facility. As he
walked in, the carpenters’ shop where Union Steward Mong worked was behind him. Schramm
did not attempt to go to the shop to speak to Mong about representing him at the meeting at that
time or at any time prior to the “due process” meeting.
Present at the meeting were Schramm, Cordell, and HR Business Associate Sondra
Mower (Mower), as well as Colin. No Union representative was present. Schramm looked
around before entering the office, searching for a Union representative who might have
responded to his message about the time and place of the meeting. Upon entering the meeting,
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Schramm testified that he began the meeting by stating, “I called the Union three times [and]
nobody showed up, I’m here without representation.” Later Schramm testified on cross-
examination that he told Mower that he wanted the Union at the meeting. According to
Schramm, Mower said he did not need a Union representative because the meeting was “just an
investigation.”16 Mower denied saying this but agreed that at the end of the meeting Schramm
stated that he could not get a return call from the Union.
Although no Union representative was present, according to Cordell, Schramm did not
mention whether he had tried to contact the Union.17 Nor, according to Cordell, did Schramm
request a Union steward. Cordell, who has worked for Respondent for 21 years, served 7 years as
shop steward for the engineers unit. In his capacity as shop steward he routinely attended
investigational interviews of unit employees.
At the meeting, Schramm testified that he explained that he had reported to the test area
at 1:35 pm, prior to his allotted time, and asked to speak to the doctor. His request was denied
and he said he would return at his 2 to 2:30 time slot. Schramm further recalled that he was
“peppered” with questions about why he refused to take the exam and why he did not consult
human resources. Schramm explained that he was suspended at 2:15 without being given an
opportunity to go back to the exam area and it never occurred to him to consult human resources.
Schramm told the attendees that he wanted to see the doctor due to his anxiety or phobia
about placing a mask over his face and, “now everybody knows my business.” Schramm asked
them to stop questioning him. He told them he could not answer questions about why he did not
do something instead of what he did. Schramm recalled that he told the meeting attendees that
his partner Saxton failed the test and he wouldn’t mind doing the same but he wanted an
exemption. He explained that he was embarrassed about it but he would “freak out” having a
respiratory mask on his face. Schramm denied that he stated that he wanted to talk to the doctor
to ensure that he failed the respiratory mask test.
At the end of the meeting, he submitted a voluntary written statement which set forth the
facts consistently with his testimony at this proceeding. The statement indicates, “
When I got to the exam room I asked to see the doctor and was told “No.—you
cannot see the doctor without first going through the exam.” I tried to explain that
I had personal and important questions for the doctor and they said “No.” . . . In
summary: For the simple request of asking to see the doctor before we begin (so I
can keep some privacy) I was denied. I tried to make it right but was preempted
with a suspension.
According to Cordell, it was difficult to follow what Schramm said during the meeting.
Schramm did not use the term “phobia” or request a medical accommodation but, according to
Cordell, told Colin that his goal while in the evaluation room was to speak to the doctor so he

16 “I told Sondra I wanted the Union here, and Sondra said, you don't need anybody here, this is not a
disciplinary action. This has -- this is only an investigation.”
17 Cordell estimated he has attended about 30 such meetings over a 9-year period. He further
estimated that the union is present in these meetings about 60 percent of the time.
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could find out how to fail the test. Cordell agreed that Schramm said something about a
condition during the meeting – “private things that he didn’t want other people to know about.”
Cordell recalled that Schramm described, “a medical condition that he had some kind of issue
with putting something on his face. . . .” and recalled that Schramm was asked why he did not
notify human resources about his condition. At another point during the meeting, Cordell
testified that Schramm was told human resources would consider letting Schramm complete the
respirator evaluation and Schramm stated he would do so but he would lie so that he would fail.
Cordell responded that Respondent could not let him complete the evaluation knowing that he
planned to lie.
Colin attended the December 13 “due process” meeting along with Cordell and Mower.
Colin’s notes of the meeting, although not verbatim, reflect, inter alia, “Pleading with [contract
clinic personnel] because had fears. If have to go through process then would have
[indecipherable scratch out of two words] lie [indecipherable scratch out of one or two words] to
fail the test.” In another portion of these notes, Colin wrote, “Just wanted to speak to Dr. Didn’t
want anyone in eng. to know. Wanted to talk to Dr. Was taking height/weight they were looking
at paperwork. Will take exam if returned.”
Colin described Schramm as speaking loud and fast – explaining what had happened the
day that his respirator exam was scheduled. According to Colin, Schramm explained that he just
wanted to see the doctor to find out if he needed to lie on the pre-exam so he would not have to
wear a respirator. Schramm stated that he pleaded with the exam personnel for access to the
doctor. He didn’t want to have to wear a respirator. He wanted the result to be that he would not
have to wear a respirator. Colin, who acknowledged that Schramm’s fears appeared significant,
asked him why he had not come to HR, where an ADA18 program was in place, for help if he had
fears. Schramm responded that he had not thought of that. He stated that his fears prevented him
from being able to wear a respirator. Colin was clear that Schramm did not ask for an
accommodation. When asked whether he would take the exam if he was reinstated, Colin
testified that Schramm said that he would but he would lie to skew the results so that he would
not have to wear the respirator.
I find that at the beginning of the meeting, Schramm stated that he had called the Union
three times but the Union had not called him back and he was at the meeting without
representation. Schramm convincingly provided context for this statement, noting that he had
been looking around the area for a Union representative before entering the human resources
office. Thus, it is inherently reasonable that his first remarks would be about expecting a Union
representative to be present in response to his messages. Mower confirmed that Schramm made a
statement like this but she placed it at the end of the meeting. Colin’s notes do not reflect this
statement at the beginning or end of the meeting and Cordell denied that Schramm requested a
representative. Neither the absence in Colin’s notes nor Cordell’s denial literally negates
Schramm’s statement that he called the Union and he was there without representation. Further,
Colin’s notes are not verbatim. I do not credit Schramm’s later statement on cross examination
that he told Mower he wanted the Union present at the meeting. In context, this remark appears
to be a reiteration of his earlier statement that he had called the Union three times and no
representative was present. Moreover, the General Counsel does not rely on this statement.

18 Americans with Disabilities Act of 1990, 42 U.S.C. §12101 et seq.
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I further find that Schramm told Cordell, Colin, and Mower variously that he wanted to
see the doctor before taking the exam due to his anxiety or phobia about placing a mask on his
face. He said he would “freak out” if a mask was placed on his face. His written statement says
he wanted to see the doctor to ask “personal and important questions.” Cordell recalled Schramm
mentioned a medical condition, a private thing, that precluded putting a mask on his face. Colin
recalled Schramm demonstrated significant fear when speaking about placing a mask over his
face and told the meeting participants that he pleaded with the contract personnel to see the
doctor.
There is no dispute that Schramm told the due process meeting that if he were returned to
work, he would take the exam. Cordell and Colin said this option was rejected because Schramm
said he would lie on the exam in order to fail it. I do not credit their testimony about lying to fail
the exam and I find that such a statement defies inherent probability. An employee would not
normally defend himself against the possibility of discharge by asserting that he would lie if
returned to work. Moreover, Colin’s notes are seriously compromised by scratching out of the
words before and after the word “lie.” Additionally, these notes were not offered as verbatim.
Frankly, the testimony that Schramm stated he would lie is illogical and appears blatantly
fabricated. In my view, Schramm, who was already humiliated that others were aware of his
condition, was acting in good faith to defend himself and would not assert that he would lie in
the exam as a defense to being discharged. Moreover, the demeanor of both Cordell and Colin in
testifying that Schramm stated he would lie to flunk the exam was unbelievable. Both of them
hesitated before adding this testimony and appeared to be grasping for a life raft when making
their assertions.
 Decision to Discharge
After completing her investigation, Colin testified that she met with her HR Managers
Rebecca Smith and Martha Diaz as well as Cordell to discuss what action to take. They decided
to discharge Schramm for failure to take the respirator exam. Colin testified that she was
unaware of the November second-hand smoke complaint made by Schramm until a week or two
after his discharge. At that time, Cordell told her about it. I discredit this testimony. There is
absolutely no context for this self-serving statement. The meeting in which Respondent
determined that it would discharge Schramm is only referenced fleetingly. Nothing was adduced
regarding of the discussion of the reason for discharge.
Following this meeting, Cordell called Union Business Agent Williams and told him
Respondent was going to move ahead with termination of Schramm. Williams requested that
Respondent change the status to layoff so that Schramm would be eligible for rehire by
Respondent and Respondent complied with this request.
 Separation of December 20
On December 20, Schramm met with Cordell, Colin, and Mower and received a
personnel action notice of separation due to “Project Ended.” Union Steward Mong attended this
meeting or a subsequent meeting that same date. Mong asked Schramm why Schramm did not
contact Mong earlier. Schramm did not respond. Mong attempted to reverse the discharge but
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was told the matter was closed.
III.Analysis
A. Alleged Threat
Section 8(a)(1) of the Act19 provides that it is an unfair labor practice “to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 [of the Act].
Section 7 protects the right of employees to engage in “concerted activity” for, inter alia, their
“mutual aid or protection.” The Board assesses the objective tendency of statements to coerce
employees rather than utilizing employees’ actual subjective reactions. Miller Electric Pump,
334 NLRB 824, 825 (2001). Thus, the issue is how a reasonable employee would interpret the
statement appropriately considering all surrounding circumstances. The Roomstore, 357 NLRB
No. 143, slip op. at 1, fn.3 (2011).
Under this objective standard, the Board determines whether a statement would
reasonably tend to interfere with the free exercise of employee rights. See, Miller Electric Pump,
supra, 334 NLRB at 825 (rejecting judge’s finding based on employee’s reaction to statement
and finding statement, when considered objectively, tended to interfere with protected right to
discuss union on non-working time). Similarly, the Board does not consider the motivation
behind the remark. Joy Recovery Technology Corp., 320 NLRB 356, 365 (1995), enfd. 134 F.3d
1307 (7th Cir. 1998) (“The test of interference, restraint, and coercion does not turn on the
employer’s motive or on whether the coercion succeeded or failed . . . [t]he test is whether the
employer engaged in conduct, which it may reasonably be said, tends to interfere with the free
exercise of employee rights under the Act.’’). Finally, a statement may be found coercive
whether or not that is the only reasonable construction. Double D Construction Group, 339
NLRB 303, 303 (2003).
There is no dispute that during a meeting in either November or December, Schramm
joined Teeney in expressing concern about exposure to second-hand marijuana smoke in the
workplace. Further, there is no dispute that in response to Teeney’s grievance, Cordell
announced a policy in late November or on December 6 to deal with employee exposure to
second-hand marijuana smoke.
Both Teeney and Schramm’s credible testimony is that Schramm told Cordell he was not
a medical professional and his assessment that there could be no effect on employees from
exposure to second-hand marijuana smoke should be verified by a medical professional, Cordell
said that perhaps Schramm’s services would no longer be needed. This unambiguous statement
constitutes a threat of discharge because Schramm together with Teeney raised a workplace issue
at an employee meeting and challenged Cordell’s assessment of the problem.
B. Alleged Weingarten Violation
In NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256–258 (1975), the Court held, inter alia,
that an employee may request representation at an investigatory interview which the employee

19 29 U.S.C. §158(a)(1).
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reasonably believes will result in disciplinary action. There is no dispute that the “due process”
meeting was an investigatory interview.20 There is further no dispute that an employee would
reasonably fear that such a meeting would result in discipline because the stated reason for the
meeting was to determine whether Schramm would be retained.
However, the right to a representative arises only when the employee requests
representation. Weingarten, 420 U.S. at 257; see also, Kohl’s Food Co., 249 NLRB 75, 78
(1980) (failure to request representation defeats Weingarten allegation); Lennox Indus., 244
NLRB 607, 608-609 (1979), enfd 637 F.2d 340 (5th Cir), cert. denied 452 U.S. 963 (1981)
(same). The request need not be in precise words but must be sufficient to put the employer on
notice of the employee’s desire for union representation. Consolidated Edison, 323 NLRB 910,
910 (1997); see also Houston Coca-Cola, 265 NLRB 1488, 1496-1497 (1982) (“No magic or
special words are required to satisfy this element of the Weingarten rationale.”). Thus
questioning an employer as to whether a representative should be obtained has been held
sufficient to assert Weingarten rights. General Die Casters, 358 NLRB No. 85, slip op. at 1
(2012) (“Do I need to get somebody in here?” sufficient to trigger Weingarten). Similarly, an
employee request that “someone” be present is sufficient to invoke Weingarten rights. Circuit-
Wise, 308 NLRB 1091, 1108-1109 (1997), enfd 992 F.2d 319 (Table) (2d Cir. 1993) (I would
like to have someone there that could explain to me what was happening).
Schramm told the due process meeting participants that he had called the Union three
times but the Union had not called him back and he was at the meeting without representation.
This statement constitutes a request for representation. Subsumed in the statement is a reasonably
understood request to have someone present at the meeting. Accordingly, I find that Schramm
requested representation and his request was ignored. Thus I find that Respondent violated
Section 8(a)(1) of the Act by failing to permit Schramm a representative and continuing the
interview. General Motors Corp., 251 NLRB 850, 857 (1981), enfd in relevant part, 674 F.2d
576 (6th Cir. 1982)
C. Alleged Suspension and Discharge due to Protected, Concerted Activity
An employee’s discharge independently violates Section 8(a)(1) of the Act when it is
motivated by employee activity protected by Section 7. Lou’s Transport, 361 NLRB No. 158,
slip opinion at 2 (2014). “[A] respondent violates Section 8(a)(1) if, having knowledge of an
employee’s concerted activity, it takes adverse employment action motivated by employee’s
protected, concerted activity. CGLM, Inc., 350 NLRB 974, 979 (2007), enfd. mem. 280
Fed.Appx. 366 (5th Cir. 2008), quoting Meyers Industries (Meyers I), 268 NLRB 493, 497
(1984) revd. sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert denied 474 U.S. 948
(1985), on remand Meyers Industries (Meyers II), 281 NLRB 882 (1986), affd. sub nom. Prill v.
NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
Schramm was engaged in protected activity. Employees who seek to improve wages,
benefits, working hours, their physical environment, dress codes, assignments, responsibilities,

20 The Board has consistently found that an interview is investigatory for Weingarten purposes where, as
here, an employee is summoned in front of management to explain his or her version of a disputed event.
Bentley University, 361 NLRB No. 125, slip op. at 1 and cases cited at fn. 4 (2014).
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and other similar employment-related items are dealing with conditions of their employment as
set forth in Section 7. Eastex v. NLRB, 437 U.S. 556, 563-568 (1978); CGLM, Inc., supra, 350
NLRB at 979.21 Moreover, Schramm was acting in concert with Teeney. Thus, I find that
Schramm and Teeney were engaged in protected, concerted activity in seeking to improve their
physical environment by determining whether exposure to second-hand marijuana smoke could
affect their safety and whether it might affect the results of a drug test if an accident occurred
while they were exposed to this smoke. They undertook these actions at employee meetings.
Utilizing the analysis set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Mgt.
Corp., 462 U.S. 393, 395 (1983), I find that Schramm’s discharge violated Section 8(a)(1) of the
Act. Wright Line applies to all Section 8(a)(1) and 8(a)(3) allegations that turn on employer
motivation. Pursuant to Wright Line, the General Counsel must persuade by a preponderance of
the evidence that the employee’s protected conduct was a motivating factor (in whole or in part)
for the adverse employment action.
The General Counsel satisfies the Wright Line standard by showing that the employee
was engaged in protected activity, the employer was aware of the activity, and the activity was a
substantial or motivating reason for the employer’s action. Donaldson Bros. Ready Mix, 341
NLRB 958, 961 (2004). Here, the General Counsel has shown that Schramm engaged in
protected activity with the employer’s full knowledge. Respondent’s animus toward his activities
is demonstrated by its threat cautioning him that his services might no longer be needed. Thus
the General Counsel has shown that Schramm was engaged in protected, concerted activity, that
Respondent was aware of this activity, and that the activity produced a threat of discharge which
persuades that a substantial or motivating reason for the Respondent’s discharge of Schramm
was his protected, concerted activity. Not only have the three requirements of Wright Line as set
forth in Donaldson Bros., supra, been shown by a preponderance of the evidence but the General
Counsel has also shown particularized motivating animus emanating from Cordell towards
Schramm’s protected activity as a nexus between Schramm’s protected activity and the adverse
action taken against him.22 Thus, I find that the General Counsel has satisfied the initial Wright
Line burden of persuasion.
The General Counsel’s showing proves a violation of the Act subject to Respondent’s
affirmative defense of demonstrating by a preponderance of the evidence that the same adverse
employment action would have taken place even in the absence of the protected conduct. Wright
Line, supra at 1088-1089. In this regard, however, it is not sufficient for an employer to produce
a legitimate basis for the adverse employment action23 or to show that legitimate factors for

21 See also, Inova Health System, 360 NLRB No. 135, slip op. at 3 (2014) (employee engaged in
protected activity when she emailed fellow employees about terms and conditions of employment); Cibao
Meat Products, 338 NLRB 934, 934-935 (2003), enfd. 84 Fed.Appx. 155 (2d Cir.), cert. denied 543 U.S.
986 (2004) (activity of one employee, who speaks in the presence of other employees, regarding a change
in employment terms affecting all employees is protected, concerted activity).
22 See, e.g., Nichols Aluminum, LLC, 361 NLRB No. 22, slip op. at 6-8 (2014) (concurrence of
Member Johnson stating particularized motivating animus toward employee’s own protected activity is
implicit in Wright Line).
23 Carpenter Technology Corp., 346 NLRB 766, 773 (2006) (“The issue is, thus, not simply whether
Continued
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adverse action were a part of its decision-making process.24 Rather, Wright Line requires an
employer to persuade by a preponderance of the evidence that it would have taken the same
action in any event.
Respondent claims that Schramm’s discharge was not motivated by any protected,
concerted activity and puts forth a legitimate business reason for the discharge. Respondent
asserts that it would have discharged Schramm in any event because of his refusal to take the
respirator mask exam. I find this ground for discharge pretextual. Respondent’s RPP specifically
provides that an employee has the right to discuss the content of the questionnaire with the
contract doctor prior to completing the questionnaire but Schramm was not afforded this
opportunity. Respondent was aware of Schramm’s request to see the doctor before completing
the questionnaire and denied Schramm an opportunity to return to take the test. Thus, when he
was suspended, it was still within his appointment time and Schramm told Cordell that he would
take the exam right away. Cordell refused and was not interested in the substance of Schramm’s
conversation. These facts indicate that Respondent was predisposed to discharge Schramm and
the motivation had nothing to do with Schramm’s respirator test. If the true concern of
Respondent was testing Schramm, he would have been allowed to speak to the doctor prior to
testing or, at a minimum, sent back for testing while he was within his testing period.
Then, as part of the investigation, Simms reported to human resources that Schramm
stated to the contract personnel that he could not wear a respirator and he would not go through
the testing. Beeman told human resources that Schramm just wanted to see the doctor and would
not allow the prescreening to be done.25 At the due process meeting, all parties agree that
Schramm said he wanted to see the doctor due to a medical condition. He had anxieties about
having a mask on his face. Schramm also submitted a written statement explaining that he
wanted to see the doctor before going through the exam and when he was called in to be
suspended he was denied an opportunity to take the exam.
It is questionable whether Schramm’s statements constituted a request for
accommodation pursuant to the Americans with Disabilities Act of 1990 (ADA) §§101(9),
102(b)(5)(A), 42 U.S.C.A. §§12111(9), 12112(b)(5)(A). To request accommodation, an
employee may use plain words and need not use the words “ADA” or “request accommodation.”
However, the employee must state that he/she needs an adjustment or change at work for a
reason related to a medical condition. Enforcement Guidance: Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, (Oct. 17, 2002) 2002 WL
31994335.
At the due process meeting, Schramm stated that before taking the mandated respirator
_________________________
the employer ‘could have’ disciplined the employee, but whether it ‘would have’ done so regardless of his
union activities.”)
24 Weldun International, 321 NLRB 733, 747 (1996), enfd. in relevant part 165 F.3d 28 (6th Cir.
1998) (employer cannot carry this burden merely by showing it also had a legitimate reason for the
action).
25 Although Beeman testified he was told by contract personnel that Schramm refused to take the
exam and instead wanted to see the doctor, neither Beeman’s verbal report nor his written report to
Cordell included the fact that Schramm wanted to see the doctor.
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test, he wanted to see the doctor due to his anxiety or phobia about placing a mask over his face.
Cordell recalled Schramm stating that he had a medical condition regarding putting something
on his face. Thus, focusing narrowly on his words, Schramm stated that he needed an adjustment
(to consult with the doctor before undergoing the exam) for a reason related to a medical
condition, a fear of placing a mask over his face, or focusing broadly, Schramm stated he needed
an exemption from taking the respirator test due to a medical condition. Indeed, Schramm was
asked why he did not come to HR with this issue. The question left unanswered is why HR, on
hearing this information at the due process meeting, did not follow up and ask if Schramm was
requesting HR’s assistance. Instead he was stone walled. Such lack of inquiry indicates a strong
probability that Respondent was merely going through the steps of a due process meeting but had
already determined that Schramm would be discharged.
In any event, at the due process meeting Schramm offered to take the respirator test and
was denied that opportunity. If this was truly Respondent’s concern, Schramm’s offer should
have satisfied its concerns. After all, this is the only ground Respondent relies upon in defending
the discharge. Thus, I find that Respondent’s defense fails as pretext. Respondent would not have
discharged Schramm absent his protected, concerted activity. Thus I find that Schramm was
suspended and discharged because at an employee meeting, he complained together with Teeney
about a workplace health and safety issue. Respondent violated Section 8(a)(1) in doing so.
CONCLUSIONS OF LAW
By threatening employees with discharge, by denying the request of Schramm for a
representative at an investigatory interview which Schramm reasonably believed could result in
discharge, and by suspending and discharging Schramm because he engaged in concerted
activity with other employees for the purpose of mutual aid and protection, Respondent violated
Section 8(a)(1) of the Act. These unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act, I shall order it to cease and desist and to take
certain affirmative action designed to effectuate the policies of the Act. Specifically, having
found that the Respondent unlawfully discharged Schramm, it must offer him reinstatement and
make him whole for any loss of earnings and other benefits, computed on a quarterly basis from
the date of discharge to the date of proper offer of reinstatement, less any interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB No. 8 (2010). Further, Respondent shall compensate Schramm
for any adverse tax consequences of receiving a lump-sum backpay award and file a report with
the Social Security Administration allocating the backpay award to the appropriate calendar
quarters. Latino Express, 361 NLRB No. 137 (2014). Additionally, the customary notice shall be
posted and published in the usual manner.
On these findings of fact and conclusions of law and on the entire record, I issue the
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following recommended:26
ORDER
The Respondent, Circus Circus Casinos, Inc. d/b/a Circus Circus Las Vegas, its officers,
agents, successors, and assigns, shall cease and desist from denying employees a representative
at an investigatory interview which the employee reasonably believes could result in discharge,
threatening or discharging employees for their protected, concerted activities or in any like or
related manner interfering with, restraining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
Respondent shall take the following affirmative action necessary to effectuate the policies
of the Act:
a) Within 14 days from the date of this Order, offer Michael Schramm full reinstatement to
his former job or, if that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privileges previously enjoyed.
b) Make Michael Schramm whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, in the manner set forth in the remedy section of
this decision.
c) Reimburse Michael Schramm an amount, if any, equal to the difference in taxes owed
upon receipt of a lump-sum backpay payment and taxes that would have been owed had
there been no discrimination against him.
d) Submit the appropriate documentation to the Social Security Administration so that when
backpay is paid to Michael Schramm it will be allocated to the appropriate calendar
quarters.
e) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful discharge of Michael Schramm and, within 3 days thereafter, notify him in
writing that this has been done and that the unlawful discrimination against him will not
be used against him in any way.
f) Preserve and, within 14 days of request, or such additional time as the Regional Director
may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the terms of this Order.
g) Within 14 days after service by the Region, post at its facility in Las Vegas, Nevada,
copies of the attached notice marked “Appendix.”27 Copies of the notice, on forms
provided by the Regional Director of Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60

26 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order, as provided in Sec. 102.48 of the Rules, shall be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
27 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
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consecutive days in conspicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper notices, notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respondent shall du
mail, at its own expense, a copy of the notice to all current employees and former
employees employment by the
November 2013.
h) Within 21 days after service by the Region, file with the
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. December 30, 2014
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Respondent at its Las Vegas facility at any time since
Regional Director a sworn
____________________
Mary Miller Cracraft
Administrative Law Judge
–60–14
plicate and

APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this
Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post,
mail, and abide by this notice.
WE WILL NOT threaten you because you complain about the effect on employees of second-hand marijuana smoke in guest
rooms.
WE WILL NOT deny you the right to Union representation at an investigatory meeting which you reasonably believe could
result in discharge.
WE WILL NOT suspend and/or discharge you for complaining at employee meetings about your terms and conditions of
employment.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exercise of the rights listed above.
WE WILL, within 14 days from the date of the Board’s Order, offer Michael Schramm full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges
previously enjoyed.
WE WILL make Michael Schramm whole for any loss of earnings and other benefits suffered as a result of his unlawful
discharge, less any net interim earnings, plus interest.
WE WILL reimburse Michael Schramm an amount, if any, equal to the difference in taxes owed upon receipt of a lump-sum
backpay payment and taxes that would have been owed had there been no discrimination against him.
WE WILL submit the appropriate documentation to the Social Security Administration so that when backpay is paid to Michael
Schramm, it will be allocated to the appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful
discharge of Michael Schramm and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the
unlawful discrimination will not be used against him in any way.
CIRCUS CIRCUS CASINOS, INC. d/b/a
CIRCUS CIRCUS LAS VEGAS
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-120975 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (602) 640-2146.