Hartman and Tyner, Inc. d/b/a Mardi Gras Casino and Hollywood Concessions, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 18, 2012

12-CA-072234 (N.L.R.B. Sep. 18, 2012)

JD(ATL)–21–12
Hallandale Beach, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
HARTMAN AND TYNER, INC., D/B/A MARDI GRAS
CASINO AND HOLLYWOOD CONCESSIONS, INC.
and
UNITE HERE! LOCAL 355, affiliated with
UNITE HERE!
Cases 12–CA–72234, 12–CA–72238
12–CA–72245, 12–CA–72246
12–CA–72248, 12–CA–72251
12–CA–72254, 12–CA–72257
12–CA–72263
Susy Kucera, Christopher Zerby, and John King,
Esqs., for the General Counsel.
Robert L. Norton, Peter L. Sampo, and Suhaill
Machado, Esqs., for the Respondent.
Mr. Michael Hill, for the Charging Party.
DECISION
Statement of the Case
GEORGE CARSON II, Administrative Law Judge. This case was tried in Miami, Florida, on
June 25, 26, 27, and 28, 2012, pursuant to a consolidated complaint that issued on April 30,
2012, as amended on May 10, 2012.1 The complaint alleges that the Respondent violated
Section 8(a)(1) of the National Labor Relations Act (the Act) in several respects and Section
8(a)(3) of the Act by discharging a total of 10 employees because of their union activities. The
answer of the Respondent denies any violation of the Act. I find that the Respondent violated
the Act in some respects but not in others.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
Findings of Fact
I. Jurisdiction
The Respondent, Hartman and Tyner, Inc., d/b/a Mardi Gras Casino, is a Michigan
corporation with a facility in Hallandale Beach, Florida, at which it operates a casino and dog
racing track. The Respondent annually derives gross revenues in excess of $500,000 and
purchases and receives goods valued in excess of $50,000 directly from points outside the
State of Florida.

1 All dates are in 2011, unless otherwise indicated. The charges in all of the cases were filed on
January 11, 2012. The charges in Cases 12–CA–72234, 12–CA–72245, 12–CA–72246, and
12–CA–72254 were amended on March 8, 2012.
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The Respondent, Hollywood Concessions, Inc., is a Florida corporation engaged in
operations at the Mardi Gras Casino. The Respondent’s answer admits, but only to the extent of
its operations at Mardi Gras Casino, that Hollywood Concessions is a single-integrated business
enterprise and a single employer with Hartman and Tyner.
I find that the Respondent, Hartman and Tyner, Inc. d/b/a Mardi Gras Casino and
Hollywood Concessions, Inc., the Company, is a single employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
Notwithstanding the Company’s involvement in interstate commerce, the answer pleads
that its operations are not subject to the Act because, insofar as “Mardi Gras operates a
racetrack-casino under its racetrack license,” the Board lacks jurisdiction. Sec. 103.3 of the
Board’s Rules and Regulations, provides that “[t]he Board will not assert its jurisdiction in any
proceeding under sections 8, 9, and 10 of the Act involving the horseracing and dogracing
industries.” The Board, however, “regularly asserts jurisdiction over enterprises engaged in
casino gambling.” See Empire City at Yonkers Raceway, 355 NLRB No. 35 (2010), slip op. at
fn. 5.
In Empire City at Yonkers Raceway, slip op. at 3, the Board referred to two cases in
which both enterprises had begun as racetracks but which had added casino operations. In
Prairie Meadows Racetrack & Casino, 324 NLRB 550, 551(1997), the Board found that “the
revenue and employment generated by the casino so overshadowed those generated by the
horseracing operations the enterprise was no longer ‘essentially a racetrack.’” In Delaware Park,
325 NLRB 156, 156 (1997), the Board held that “the racetrack was dependent on the casino,
not the other way around.”
In this case, as in Prairie Meadows and Delaware Park, the Company expanded its
racetrack operation by adding casino operations, specifically slot machines. Patrons engage in
pari-mutuel wagering, play the slot machines, or gamble in the poker room. The Board asserts
jurisdiction over poker rooms. See El Dorado Club, 220 NLRB 886 fn. 5 (1975). Food and
beverage employees serve all patrons. The Company’s employee complement doubled, from
about 300 to about 600, when the slot machines were installed.
The Company markets itself to the public as Mardi Gras Casino, not Hollywood
Greyhound Track, its former name. The casino operations are conducted under a separate
license from the racetrack; however, the laws of the State of Florida require that the racetrack
operate if the casino is to operate, but it does not have to operate year round. During the past
fiscal year the dog track operated for 5 months, December 2011 and January through April
2012. Danny Adkins, vice president and chief operating officer of the Company explained
that its permit requires from 100 to 140 live dog races a year. During the remaining
months of the year, the kennel that is operated by the dog owners races the dogs at a
different track. In an interview in 2011, Adkins told a reporter that the dog track had lost money
the previous year and that the “live racing industry was dead.” At the hearing herein he
pointed out that he never said that “pari-mutuel activity was dead.”
Over the last 3 fiscal years, documentary evidence establishes that the Company’s
revenue from slot machines was approximately $53 million for 2009–2010, $52 million for 2010–
2011, and $53 million for 2011–2012. Pari-mutuel activity for the same three periods was $23,
$14, and 19 million, respectively.2 The Respondent, in its brief, argues that the foregoing figures

2 Pari-mutuel revenue includes both H & T Gaming, Inc., (formerly Bet Miami) and Mardi Gras
RaceTrack and Gaming Center.
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are misleading insofar as it must pay various state and local taxes and fees with regard to its
slot machine revenue. I note that the brief of the Respondent does not present the taxes and
fees paid upon revenue from its pari-mutuel operations. The Board asserts jurisdiction on the
basis of gross revenue, not profit. The revenue generated by the Company’s slot machine
operations is more than double the revenue received from its pari-mutuel operations.
The Company’s casino operations do not involve the racing industry. The employees
servicing the slot machines and serving the patrons at this multimillion dollar year round casino
that markets itself as a casino, not a dog track, are entitled to the protection of their Section 7
rights, and it is appropriate that jurisdiction be asserted to assure the protection of those rights. I
find that the Board has jurisdiction over the operations of the Respondent.
The Respondent admits, and I find and conclude, that UNITE HERE! Local 355, affiliated
with UNITE HERE!, the Union, is a labor organization within the meaning of Section 2(5) of the
Act.
II. Alleged Unfair Labor Practices
A. Background
This case arises in the context of organizational activity among the Company’s casino
employees. Several years ago, seven companies began an initiative to bring slot machines to
South Florida. Vice President and Chief Operating Officer Danny Adkins explained that
“the Union came to the group of tracks that were funding the operation, seven of us, and
said that they would be willing to support the initiative if we would enter into a neutrality
agreement, and the seven of us did.” The agreement is dated August 23, 2004.
The events that followed are set out in Mulhall v. UNITE HERE Local 355, 618 F.3d
1279 (11th Cir. 2010). The decision therein is relevant insofar as it sets out the background
preceding the events herein. As set out therein, the support of the Union for the ballot
initiative was substantial, the Union spent over $100,000 in support of the initiative, and
the initiative was successful. Mulhall v. UNITE HERE Local 355, at 1285.
The neutrality agreement, referred to as the Memorandum of Agreement or MOA,
which the Company entered into in exchange for the support of the Union for the ballot
initiative, inter alia, sets out a bargaining unit and provides that the Company would grant
the Union access to nonworking areas of its property to speak with employees in the unit.
It also provides that the Company would provide the Union with lists of the names of unit
employees and their addresses. The agreement provides that it would remain in effect for 4
years after slot machines were installed. Slot machines were installed in October 2006.
In May and July 2008, the Union sent the Company written notice of its intent to organize
and demanded that the Company provide the organizing assistance promised in the MOA. The
Company refused, “claiming, with the advice of new legal counsel, that the MOA was illegal and
unenforceable.” Mulhall v. UNITE HERE Local 355, at 1285. The Company’s claim was referred
to arbitration and the arbitrator found that the agreement was enforceable and extended it for 1
year. The District Court confirmed the arbitration award but vacated the 1 year extension.
Notwithstanding the vacating of the extension, counsel for the Respondent, at the
hearing herein, represented that “the agreement got extended a year . . . because we were
found to have violated it . . .by sending out information to employees that the [a]rbitrator
determined was not neutral materials.”
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The Company contends that, counting the 1 year extension, the MOA expired on
October 24, 2011, 5 years after the installation of slot machines. Organizer Michael Hill
confirmed that the Union contends that, with the extension, the MOA was in effect through
December 31, 2011. The brief of the General Counsel cites an unreported order that was
not presented as evidence that purportedly extended the agreement until December 31,
2011. I do not consider evidence that is not part of the record and, regardless of when it
expired, the date of expiration is not before me. In late 2011, the Union and Company took
actions consistent with their respective contentions regarding the viability of the MOA.
In September, the Union had two activist “salts” seek employment at the casino. Sochie
Nnaemeka, a graduate of Yale University, did not, on her application, report any education
beyond her graduation from high school. James Walsh, on his application, did report his
graduation from Brown University but did not report that he also received a masters degree in
journalism from Columbia University. Both were hired and, as employees, sought to identify
potential leaders among the unit employees who would support the organizational objective of
the Union. The Company did not learn that they were salts until a 10(j) proceeding held the
week before the hearing herein opened.
In late October, representatives of the Union and prounion employees began contacting
employees at their homes relative to their working conditions. Initially, authorization cards
for the Union were not solicited. Some employees reported to management that they had
been visited by “strangers.”
On October 31, Wendi Walsh, president of the Union, wrote Vice President and
Chief Operating Officer Adkins complaining that “[m]anagers have asked employees about
visits by the Union to employees’ homes.”3 The letter requests a meeting to “discuss
possible remedies to the damage that has been done.”
Adkins replied the same day in a letter explaining that the reports received by the
Company related to complaints regarding the “hours of the visits” and “false pretenses” in that
the visitors “failed to identify themselves truthfully on the first visit.” The letter denied that the
Company violated the neutrality agreement. It states that the Company would “respectfully
decline your request to meet.” I note that the letter does not assert that the neutrality agreement
had expired. That assertion was made in a letter dated November 17.
Walsh, on November 2, wrote Adkins stating that the Union had been talking with
employees “off Casino property” and that “[s]oon, the Union expects to begin speaking with
employees in non-work areas of the Casino as permitted” by the neutrality agreement. Walsh
again stated the desire of the Union to meet. The Company did not respond to that request.
A delegation from the Union, with activists from the community, came to the casino on
November 17. Organizer Michael (Mike) Hill requested to speak with Adkins. That request was
refused, and the delegation was directed to leave. The members of the delegation did so.
On that same day, Adkins wrote Walsh protesting the “orchestrated, unrequested and
unannounced entry onto the property.” The letter stated that “these actions will not be tolerated”
and that “any employees engaging in these actions during working hours and on these premise
will be terminated immediately.” The letter goes on to state that the neutrality agreement
“terminated on October 24, 2011.”

3 Local President Wendi Walsh is not related to alleged discriminatee James Walsh.
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Notwithstanding the foregoing letter, a delegation from the Union returned on the
following day, November 18, and again requested to meet with Adkins. The request was refused
and the delegation was directed to leave or face arrest. On this occasion the delegation did not
immediately leave and police officers arrived and began taking names. Three current
employees departed in order to avoid giving their names to the officers. Organizer Hill showed a
copy of the neutrality agreement to the officers, one of whom told him that “you both have
lawyers,” that he was not a lawyer, “we should fight it out in court.”
As hereinafter discussed, 10 employees are alleged as discriminatees, 5 of whom were
discharged for coming to the facility with the union delegations.
B. Preliminary Observations
Despite the support provided by the Union to the ballot initiative that gave the Company
the right to install slot machines, the Company in 2008, refused to provide the assistance set out
in the MOA, “claiming, with the advice of new legal counsel, that the MOA was illegal and
unenforceable.” Mulhall v. UNITE HERE Local 355, at 1285. The Company’s decision to contest
the validity of the agreement into which it had entered after the Union had rendered the
assistance that had resulted in the successful initiative suggests animus towards the Union.
The Company presented letters from the Sub-Director of the Steelworkers Union in West
Virginia and the president of a Teamsters local union in Michigan, unions that represent casino
employees in those states, that refer to their longstanding relationship with Adkins and denying
any anitunion sentiments by Adkins. The letters do not establish the absence of antiunion
animus with respect to this employer that, in Florida, sought to have the agreement into which it
had entered be found unenforceable. The letters establish that Adkins is a businessman and,
when business demands that he deal with a union, he does so. If business does not demand
that he do so, he seeks to avoid doing so.
The Union, notwithstanding its clear knowledge that the Company contended that the
neutrality agreement expired on October 24 and that the Company was refusing to honor it, sent
out a one page flier on November 19 stating “The Union thanks Dan Adkins . . . for working
together with the Union,” noting that the Union had been given the names and addresses of unit
employees and that the Company had “agreed to stay neutral.” Following the ejection of the
delegations from the Union and the receipt of the November 17 letter from Adkins stating the
position of the Company that the neutrality agreement had expired on October 24, there was no
basis for any assertion by the Union that Adkins was “working together with the Union.”
C. The 8(a)(1) Allegations
The General Counsel, in its brief, withdrew paragraphs 11, 12, 13, and 19 of the
complaint.
Paragraph 7 of the complaint alleges that on or about October 26, 2011, Chief Operating
Executive Cathy Reside, in a written memorandum, created an impression among employees
that their union activities and protected concerted activities were under surveillance by
Respondent and asked employees to report the union activities and protected concerted
activities of other employees to Respondent.
Catherine (Cathy) Reside did not testify. On October 26, the Company attached a
memorandum from Reside to employees’ paychecks stating that the Company had been
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informed that employees had received “unsolicited strangers knocking at their doors” who had
identified themselves as “working for the ‘community’ or for ‘Mardi Gras Casino.’” The
memorandum then states:
Please know that management at Mardi Gras would NOT visit your home. We are doing
everything we can to protect your privacy.
If your have any questions or concerns-or have had a similar experience-PLEASE let us
know.
The memorandum was issued after reports of contact by strangers. Tashana McKenzie,
an alleged discriminatee, acknowledged that she was visited by an individual whom she did not
know who stated that she was from “Freedom Charters.” McKenzie told the individual that
the time was not convenient. The individual returned the next week and stated that she
was “with Freedom Charters and they were trying to change and better South Florida with
transportation and jobs.” McKenzie explained that, “a little bit after that, she explained that
she was also from the Union.”
Food and Beverage Manager Bill Fodor recalled that, in late October, three
employees reported that individuals “from a group called Community Services or
something similar to that” had come to their homes. Suzann Goslin was upset by the visit
and “wanted to know who these people were.” Monica Rakowska and Doreen DeCrescito
reported being visited. Fodor stated that, “after hearing their stories, I put it together that
this was probably the Union starting to organize.”
Although Fodor denied asking employees whether they had been visited, employee
James Walsh, whom I credit, confirmed that, at a preshift meeting in late October, Fodor told
him and Monica Rakowska that two cocktail waitresses whom Fodor identified as Suzy
[Goslin] and Doreen [DeCrescito] had reported that they had been visited by unidentified
individuals. “He asked us if we had been visited, to which I replied no, and Monica
immediately said she had been visited.” Fodor asked if she knew who they were and
whether she let them in. Rakowska replied that she did not let them in, “but they were very
nice.” Later in the shift, Fodor returned with Food and Beverage Director Sallyanne Kelly
and Dan Adkins. Adkins asked Rakowska whether she knew “who these people were, did
you ask for identification . . . what they looked like . . . what kind of questions they asked.”
He then told Rakowska, “if they come back again be sure to come let me know.”
At the shift change, which occurred at around 6 p.m., new cocktail waitresses and a
new bartender came in. Fodor asked them if they had been visited. “Everybody said no.”
When Fodor left, one of those cocktail waitresses, Suzanne Garro-Arroyo, told Walsh that
“they're talking about the Union . . . that she had been visited and was very excited about
the Union.”4 She also stated that “management was purposely not saying the Union word,
but all of the employees standing there knew that it was the Union.” Garro-Arroyo did not
report her basis for making the foregoing statement.
Fodor acknowledged that he reported to higher management that he thought “this [the
home visits] might be the Union starting to organize.”

4 An employee list provided to the Union pursuant to the MOA shows Suzann Goslin and
Suzanne Garro-Arroyo as cocktail waitresses. The “Suzy” that Walsh recalled Fodor mentioning
would have been Suzann Goslin insofar as Fodor named her as being upset about being
visited. The Suzanne on the next shift would have been Suzanne Garro-Arroyo.
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The memorandum does not create an impression of surveillance nor request employees
to report upon the union activities of their fellow employees. It requests information relating to
strangers who identified themselves working for the “community” or “Mardi Gras Casino.” It asks
that employees who have had a similar experience to “let us know.” I shall recommend that
paragraph 7 of the complaint be dismissed.
Paragraph 8 of the complaint alleges that Chief Operating Officer Danny Adkins
interrogated employees about their union membership, activities, and sympathies and about the
union membership, activities, and sympathies of other employees and asked employees to
report the union activities and protected concerted activity of other employees to Respondent.
This allegation arises from the testimony of Walsh that, after the preshift meeting at
which Monica Rakowska acknowledged that she had been visited, Fodor returned with
Food and Beverage Director Kelly and Adkins. Adkins asked Rakowska whether she knew
“who these people were, did you ask for identification . . . what they looked like . . . what
kind of questions they asked.” He then told Rakowska, “if they come back again be sure to
come let me know.” Walsh did not testify to any answers that Rakowska gave. There were
no questions relating to any union activity by Rakowska or any other employees.
Adkins did testify, but he did not address his conversation with Rakowska, who did
not testify. The report of Walsh regarding her conversation with Adkins contains no
reference to the Union or any statement by Rakowska relating to the Union. In the
absence of any reference to the Union, whether the Respondent was legitimately
concerned regarding employees’ privacy or opposed to their contact with the Union is
immaterial. Adkins' request the Rakowska report whether “they” came back again does not
establish a request that she report upon the union activities of other employees. I shall
recommend that this allegation be dismissed.
Paragraph 9 of the complaint alleges that, “on or about a date in October,” Bill Fodor
interrogated employees about their union membership, activities, and sympathies and asked
employees to report the union activities and protected concerted activities of other employees.
This allegation is predicated upon the testimony of Walsh, which I credit and which in
substantial part is confirmed by Fodor. Although I do not credit Fodor’s denial that he
interrogated employees, there is no evidence that Fodor, prior to October 30, interrogated any
employee with regard to union sympathies. He received reports of visits by unidentified
individuals and inquired of other employees whom he supervised whether they had received
such visits. Monica Rakowska acknowledged that she had. Fodor asked if she knew who
they were and whether she let them in. Rakowska replied that she did not let them in, “but
they were very nice.” I shall recommend that this allegation be dismissed.
Notwithstanding my recommended dismissal of the foregoing allegations, President
Wendi Walsh’s letter of October 31 relating to managers’ questioning of employees confirmed
Fodor’s suspicion that the visits were related to the Union’s organizational effort. More
significantly, after the Company’s receipt of the October 31 letter from the Union, the
Company would suspect that employees identified as making visits, as opposed to having
been visited, were engaging in organizational activity on behalf of the Union.
Paragraph 10 of the complaint alleges that Fodor, on October 29, interrogated
employees about their union membership, activities, and sympathies.
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On October 30, rather than the 29th, Sochie Nnaemeka noted that her supervisor, Bill
Fodor, did not engage in conversation with her when she reported to work. After she began
working, Fodor gestured for her to come to the supply closet. Once there he asked Nnaemeka
if she had been “visited by strangers at my house.” Nnaemeka “kind of deflected the
question,” and Fodor explained that another employee, Emilene Noel, had been visited
and “was very scared” He told Nnaemeka that if strangers were coming to her house to
report it “because we want to make sure you guys are safe.” They continued talking, and
Fodor then said, “[S]o the Union has not come to your house? You're not with the Union?”
Nnaemeka answered that she did not “know what you're talking about.”
Following the conversation in the supply closet, Nnaemeka spoke with employee
Ron Shultz whom she had, with an organizer for the Union, attempted to visit earlier in the
day. Shultz called out to her and asked if that was “you this morning with the Union lady at
my door?” Nnaemeka went to him and answered that it was and questioned why he had
not come to the door. Shultz answered that he was “hung over.” Nnaemeka asked, “[D]id
you by chance tell Bill [Fodor] that I had come to your door?” He answered, “[Y]eah, you
know, he was the first person I saw when I walked in today, and it seemed weird that after
we'd, you know, strangers coming to your door, that you show up to my door with a
stranger.” Nnaemeka told Shultz that she asked that question because she had earlier had
a conversation with Fodor, and “it was a little bit of a tight atmosphere.” She told Shultz
that she had come to talk to him about the Union, but that “we can't talk about it here.”
Although the brief of the Respondent asserts that Fodor denied receiving any report from
Shultz, review of the transcript contains no such denial. Fodor did not mention Shultz in his
testimony. Fodor denied asking Nnaemeka anything about the Union or asking any
employees whether they had been visited. I do not credit that testimony. All employees
had, in the October 26 memorandum, been asked to report visits from strangers. Fodor did
not deny having a conversation with Nnaemeka in the supply closet. Walsh confirms that,
in late October, Fodor had informed him and Monica Rakowska that other employees had
reported being visited and asked if they had been visited.
The chronology of the foregoing events is totally consistent. Nnaemeka attempted
to visit Shultz, he informed Fodor of her visit, and Fodor interrogated her in the supply
closet. Thereafter she confirmed with Shultz that he had informed Fodor of the visit.
Fodor questioned Nnaemeka saying, “[S]o the Union has not come to your house?
You're not with the Union?” The foregoing questions demanded an answer, and
Nnaemeka replied that she did not know what he “was talking about.” The interrogation of
Nnaemeka by her manager in a supply closet was coercive. By interrogating an employee
with regard to her union sympathies the Respondent violated Section 8(a)(1) of the Act.
Paragraph 14 of the complaint alleges that, on or about November 14, Supervisor Evans
Etienne threatened employees with unspecified reprisals if they engaged in union activities or
protected concerted activities.
Tashana McKenzie, a floor attendant in the casino, was directly supervised by
Casino Supervisor Evans Etienne. Uncontradicted testimony by McKenzie establishes that,
on November 14, Etienne spoke with her on the job. He stated that he “had just talked to
Emilene Noel, and she said that I had been talking to her about the Union.” Noel is the
individual who had told Fodor that she had been visited and whom he named when
speaking with Nnaemeka. Etienne continued, telling McKenzie “to be careful and just to
watch my back.” Etienne did not testify and I credit McKenzie. The foregoing statement,
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notwithstanding that it came from a supervisor who was “concerned for the employee’s job
security,” threatened unspecified reprisals. Jordan Marsh Stores Corp., 317 NLRB 460, 462–
463 (1995). By threatening employees with unspecified reprisals because of their union activity,
the Respondent violated Section 8(a)(1) of the Act.
Paragraph 15 alleges that, or about November 18, Security Manager Rich Hopke
threatened employees with discharge and arrest because they engaged in union activities.
As already discussed, a delegation from the Union sought to speak with Adkins on both
November 17 and 18. When requested to leave on November 17, the delegation did so. On
November 18, the delegation did not. Organizer Hill explained that the delegation did not leave
because the Union “wanted documentation that they were refusing to provide us access.”
Hill showed Hopke the MOA. Hopke told Hill that he worked “for the Company and they're
telling him there's no agreement, so there's no agreement.” Hopke then told Hill that he
was “going to call the cops and arrest us.”
When the police arrived, Organizer Hill showed a copy of the neutrality agreement to
one of the officers. The officer responded that “you both have lawyers,” that he was not a
lawyer, “we should fight it out in court.” The officer stated that he was going to issue
citations for trespassing. Hill explained that some of the members of the delegation were
employees and asked what was going to happen to them. The officer spoke to Hopke. It is
unclear whether Hill overheard their conversation, but it is undisputed that the officer
reported that Hopke told him “if anybody comes back, they're going to be arrested
including those workers.” Hill immediately went to Hopke and told him, “[L]ook, these
workers have to come back to work. They can't be arrested.” Hopke “shrugged and put his
hands up.”
Hill’s testimony was corroborated by Theresa Daniels-Muse who recalled that
Hopke told Hill that he did not “know about any such agreement and that if we didn't leave
that he was going to have us cited for trespassing.” Whether Hill overheard the
conversation between the officer and Hopke is immaterial. Hopke did not testify. I credit
Daniels-Muse with regard to what she heard Hopke tell Hill.
Employees who are not on duty are permitted to return to the casino. Threatening off-
duty employees with arrest, a citation for trespassing, because they engaged in protected
concerted union activity violated Section 8(a)(1) of the Act.
Paragraph 16 of the complaint alleges that, on or about December 2, Adkins, threatened
employees with discharge because they engaged in union activities.
This allegation is predicated upon a short conversation at which employee Amanda
Hill, who had already been discharged, protested her discharge. Adkins, his secretary, and
Hill were present. Adkins asked why she was there, and Hill answered that she “never got
a reason why I was fired, a letter, a paper or anything.” Adkins stated that she had come
“with a group of people and we were being disruptive.” Hill answered that she was “never
being disruptive.” Adkins replied “[Y]ou came with a group of people, right?” Hill answered,
“Yeah, but I wasn't being disruptive.” Adkins answered that “is not the way that you come
to meet him.” Hill stated that she thought that “we had permission . . . [to] speak to the
workers while they weren't on the clock.” Adkins said, “[T]his meeting is over now.” Adkins
did not deny the testimony of Hill, whom I credit.
The General Counsel argues that the foregoing conversation, by informing “Hill that she
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had been discharged for being ‘disruptive’ because she had engaged in peaceful union activity”
violated the Act. The foregoing statement linking the discharge of Hill to her protected concerted
activity was coercive and independently violated Section 8(a)(1) of the Act. TPA, Inc., 337 NLRB
282, 283 (2001).
Paragraph 17 alleges that, on or about December 5, Sallyanne Kelly interrogated
employees about their union membership, activities, and sympathies and threatened employees
with unspecified reprisals because of their union membership, activities, and sympathies.
Figene Pierre was a member of the organizing committee of the Union. Her picture
appeared on a flier distributed by the Union that announced and identified members of the
committee. At some point after the distribution of the flier, Director of Food and Beverage
Sallyanne Kelly approached Pierre, who is a dishwasher at the casino and who speaks
only Creole, with Kitchen Supervisor Joe Curci. A cook, Gregory, who speaks both Creole
and English, translated. Kelly asked Pierre “if I signed for this, and I said yes.” She asked
why she had signed. Pierre replied that “the Company give a paper for them [the Union] to
collect all the people's address, and that's one of the reasons that I signed.” Kitchen
Supervisor Curci twice asked Kelly whether Pierre would get into trouble. Kelly replied, twice,
“[N]o.” Pierre testified, “He asked Sally if I will get in trouble, and Sally said no.”
In a pretrial affidavit, Pierre stated that Curci said that “I would be in trouble and Sally
said no, that I wouldn't be." Whether something was lost in translation when the affidavit
was given is unclear. I credit the testimony of Pierre given at the hearing. Even if I were to
find that the pretrial affidavit was correct, Director Kelly immediately contradicted the
assertion of Supervisor Curci.
As discussed above, the Union had, on November 19, distributed a flier that
incorrectly stated that Adkins was “working together with the Union.” Kelly’s inquiry regarding
whether Pierre had “signed this,” i.e. agreed to be identified as a member of the organizing
committee of the Union, was not coercive nor was the follow up question regarding why
she had done so once Pierre confirmed that she had “signed this.” Kelly stated to
Supervisor Curci that Pierre would not be in trouble. There was no coercive interrogation
or threat. I shall recommend that this allegation be dismissed.
Paragraph 18 of the complaint alleges that, on or about a date in December 2011,
Facilities Manager Tommy Grozier interrogated employees about their union membership,
activities, and sympathies and about the union membership, activities, and sympathies of other
employees and impliedly promised benefits to employees if they refrained from engaging in
union activities and protected concerted activities.
This allegation is predicated upon admitted conversations between Yvrose Jean Paul
and Facilities Manager Grozier. Jean Paul speaks some English and understands English,
but her native language is Creole. Grozier speaks no Creole. As the record reflects, Jean
Paul testified with the assistance of an interpreter and alternated between Creole and
English in her testimony which caused some confusion, particularly over the reference to
30 dollars. I am satisfied that the 30 dollar reference, although not specifically stated,
related to union dues. Even if I am in error in that regard, the substance of the
conversations relating to the alleged violations of the Act is clear.
Jean Paul was called to Grozier’s office. He asked her to close the door, and she did so.
He told her that she could relax. She answered that she was relaxed. Grozier said, “[Y]ou are
Union.” Jean Paul, whose picture appeared on the union flier announcing its organizing
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committee, answered that she was. Grozier referred to whether she knew “you know you
pay $30 in Union?” Jean Paul answered that she did. Grozier asked why she supported
the Union, and Jean Paul replied that it was because “insurance in my job is $20 only for
me and Union is every month,” an unexplained but implied belief that the Union could
negotiate a contract providing insurance for her family. The conversation continued, and
Jean Paul complained that she had not received a raise for 5 years. Grozier noted that
when she needed to “switch your days, I help you.” Jean Paul confirmed that “I know
you're good, but you can help me for money?”
Jean Paul recalled two further encounters with Grozier that day. When she was eating
lunch he asked if she could identify the people who spoke with her. She replied that she could
not. As she was preparing to leave work, he asked again whether she could identify who spoke
with her, and she answered that she could not “because after everybody, my sister, my
brother, I don't know.”
Grozier admits asking Jean Paul whether anyone “claiming to be from Mardi Gras”
had visited her. He claims that the conversation was “at the second floor landing, which is
outside the housekeeping break room.” He admits asking “what were they telling you,” and
that Jean Paul replied that they “could get her better benefits and more pay and have a
better life for yourself.” He asked what they were asking in return and she answered, “$30
a month.” Grozier admits having a further conversation in which he asked if she knew the
people supposedly coming from Mardi Gras,” and she answered that she did not.”
I credit Jean Paul. Employees remember when they are called to the office. Grozier’s
initial comment, that Jean Paul could relax, is consistent with an assurance that this was not a
disciplinary situation. Grozier wanted information. I do not credit his testimony that the Union
was not mentioned. He interrogated Jean Paul regarding her reasons for supporting the Union
and thereafter, twice, sought to learn the identity of other supporters of the Union by asking who
had spoken with her.
Regarding the complaint allegations, there was no coercive interrogation with regard to
the union sympathies of Jean Paul, whose picture was on the document announcing the
organizing committee. There was also no threat, implied or otherwise, relating to benefits. Jean
Paul acknowledged that Grozier had “switch[ed]” her days when she needed that
accommodation and there was no threat to discontinue that accommodation. Grozier’s
questioning Jean Paul regarding the identity of who she had spoken to regarding the
Union inquired into the union sympathies and activities of other employees. The
Respondent, by interrogating employees regarding the union sympathies and activities of
other employees, violated Section 8(a)(1) of the Act.
D. The 8(a)(3) Allegations
1. Sochie Nnaemeka
a. Facts
Nnaemeka began working as a cocktail waitress on September 6. She reported to
Beverage Manager Bill Fodor. As already noted, both Nnaemeka and James Walsh were
“salts,” but the Company did not learn of that until the 10(j) proceeding. Nnaemeka was
discharged on November 3.
Nnaemeka made four or five home visits beginning on October 30. As discussed
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above regarding paragraph 10 of the complaint, she attempted to visit the home of
employee Ron Shultz. After Shultz mentioned that Nnaemeka and the “union lady” had
attempted to visit him, Fodor interrogated Nnaemeka regarding whether she had been
visited and concluded the conversation by asking, “You're not with the Union?”
A couple of days before Nnaemeka was discharged, Beverage Supervisor Nick
Sanvil, told her, “in a kind of mocking way,” that “he had heard that I was getting myself
into trouble.” She asked what he meant and “he just laughed.” Sanvil did not testify.
On November 3, Nnaemeka began work. After taking several orders she went to
the bar and gave them to the bartender. A supervisor was at the bar and asked her to
come to human resources with her. She was directed into an office at which Director of
Human Resources Steven Feinberg, Director of Food and Beverage Sallyanne Kelly,
Assistant Director of Food and Beverage Jay Hasan, and a security person were present.
Nnaemeka was asked to sit down. Kelly told her that “they were not satisfied with
my performance and that they were terminating me.” Nnaemeka asked her what in
particular. Kelly said the she “had a string of absences and tardies.” Nnaemeka replied
that she had “at most two” and that no supervisor had ever brought them to her attention.
Nnaemeka asked if she “could see them . . . if she had a record.” Kelly answered that she
did not. Nnaemeka asked, “[O]kay, well what is this based on?” Kelly answered that she
was “caught on surveillance loitering in the poker kitchen two nights ago.” Nnaemeka
responded that she was “probably taking my break.” Hasan said it was an “unauthorized
break.” Nnaemeka replied that she was “covered,” that “someone else was on the floor,
and I went to go have my lunch.” Nnaemeka asked if she was “being fired for union
activity.” Hasan shrugged and answered that Nnaemeka “could think whatever I wanted
to.” Kelly told Nnaemeka that she was in her “probation period, so they could review my
performance and decide whether they wanted to keep me or not, and they decided that
they don't want to.”
Although Fodor claimed that he “spoke to Nnaemeka about the latenesses” he gave
no specifics regarding when he did so or what he said to her. Fodor, in a memo regarding
an entire evening's activities, reported that Nnaemeka was absent that evening, but he did
not claim that he ever addressed that absence with her. Nnaemeka denied being absent
and, regarding tardies, said she had had “at most two.” I credit Nnaemeka that no issue
regarding attendance had been brought to her attention.
The Company presented a document that purportedly reflected Nnaemeka’s
attendance. Hasan stated that the document “most likely was prepared” by Administrative
Assistant Victoria Singer. He did not testify to when the document was prepared. When
asked whether Kelly had “a document that showed the absentee record” of Nnaemeka,
Hasan answered that Kelly had “documents in her hand.” He was then asked whether the
document presented at the hearing “appears to be the document that reflects the
attendance record of Ms. Nnaemeka.” He was not asked whether the document was one
of the “documents in her [Kelly’s] hand.” I credit Nnaemeka. Kelly had no document, and
she admitted that fact to Nnaemeka.
Nnaemeka recalled that two managers, Nick Sanvil and Johnny Quinones had seen
her eating in the Poker Room kitchen, and they were “aware that I was eating and sitting
there.” Neither made any comment to her. Hasan testified that, upon Nnaemeka being
seen in the kitchen, the supervisor “would have asked her to go back to her station.”
Hasan was asked, “He didn't do that, did he?” He answered, “I'm pretty sure he did.”
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Neither Sanvil nor Quinones testified. I credit Nnaemeka. She did nothing improper.
Nnaemeka was “praised on my performance” the week before she was
discharged and told that she would be transitioning to the VIP bar, where, because of tips,
“you do make more money there.” Beverage Manager Fodor did not deny informing
Nnaemeka that she would be transitioning to the VIP bar, but claimed that “[u]sually I put
the newer people into that bar.” He explained that “one wrong word to one of the high
rollers, you know, you have to be very careful. It's an eggshell type place. I just put people
in there because, you know, the better bartenders don't really want to work it and they've
been there long enough to where they don't have to.”
Fodor’s attempt to discount the significance of the transfer of Nnaemeka to
the VIP bar is incredible. I do not credit his testimony that the Company did not assign its
best bartenders to attend to the “high rollers.” Even if I accepted the credibility of that
testimony, if there had been any issue regarding unacceptable performance by Nnaemeka
during her probationary period, she would not have been informed of a forthcoming to
transfer to the VIP bar or any other bar. She would have been dismissed. She was not
dismissed until the Company became aware of her union activity.
b. Analysis and concluding findings
In assessing the evidence under the analytical framework of Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), I find that Nnaemeka engaged in union activity
and that the Respondent was aware of that activity. Beverage Manager Fodor did not deny that
employee Ron Shultz told him that Nnaemeka and the “union lady” had attempted to visit him.
After the announcement by the Union that it was visiting employees at their homes, I find that
the Respondent suspected that employees identified as making visits, as opposed to
having been visited, were engaging in organizational activity on behalf of the Union The
interrogations and threats relating to employee union activity, including specifically Fodor’s
interrogation of Nnaemeka, establish animus. Her discharge was an adverse action that
affected her employment. I find that the General Counsel has carried the burden of proving
that union activity was a substantial and motivating factor for the discharge. Manno Electric, 321
NLRB 278 (1996). Thus, the burden of going forward to establish that the same action would
have been taken against her is upon the Respondent.
The Respondent did not rely upon Nnaemeka’s attendance record as a basis for her
discharge. Kelly did not testify. When Kelly informed Nnaemeka that she was being
discharged because “of absences and tardies,” Nnaemeka denied being absent and,
regarding tardies, said she had had “at most two.” Although Fodor claimed that he “spoke
to Nnaemeka about the latenesses,” he gave no specifics regarding when or how he did
so. I credit Nnaemeka that no issue regarding attendance had been brought to her
attention. Kelly had no attendance document. When Nnaemeka asked Kelly whether she
had a record, Kelly answered that she did not. Nnaemeka asked, “[O]kay, well what is this
based on?” Kelly then abandoned the absences and tardies basis for the discharge and
answered that Nnaemeka was “caught on surveillance loitering in the poker kitchen two
nights ago.” The Respondent did not rely upon a document that did not exist at the time.
Two supervisors, Nick Sanvil and Johnny Quinones, had seen Nnaemeka in the
poker kitchen, taking a break and eating. Neither was called to deny that they had seen
her, that what she was doing was improper, or that they said nothing to her. Nothing was
said because Nnaemeka was not doing anything improper.
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The Change of Status form relating to Nnaemeka’s discharge states “failure to pass
probationary period.” Beverage Manager Fodor would not have informed Nnaemeka of a
forthcoming transfer to any bar, much less the VIP bar, if he had not found her to be a
more than satisfactory employee.
Probationary employees and salts are protected by the Act. When the reason for a
discharge is either false or does not exist, the Respondent has not rebutted General Counsel's
prima facie case. Limestone Apparel Corp., 255 NLRB 722 (1981). The Respondent, by
discharging Nnaemeka because of her union activity, violated Section 8(a)(3) of the Act.
2. Sabyn Gelin
Gelin had worked as a cage cashier for the Company since September 2006. She was
discharged on November 7. Cage cashiers pay customers for their winnings when the customer
presents a voucher, also referred to as a ticket, reflecting those winnings. Gelin did not testify
through an interpreter, but her native language is Creole as confirmed by a warning she was
given for speaking Creole with other employees as well as her accented testimony. Several
exchanges during her testimony confirm at least a minor language barrier.
Gelin became involved in the organizing campaign and began making house visits in
late October. There is no evidence that the Company obtained knowledge of that activity.
All monetary transactions at the casino are videotaped by surveillance cameras. On
November 5, a customer came to the cashier cage at which Gelin was working and presented a
ticket for $59.85 and placed an additional 15 cents on the counter, stating that he wanted 3
$20 dollar bills. Gelin cashed the ticket, gave the customer two $20 bills, one $10 bill, one
$5 bill, four $1 bills and 85 cents in change, and cleared her hands. Upon the completion
of a transaction, employees must clear their hands, i.e. show the palms of their hands
which the cameras record, thereby confirming that no theft occurred. Gelin then took the
additional 15 cents the customer had placed on the counter and the 85 cents in coins that
she had tendered to the customer and gave him a $1 bill. The customer demanded a $20
bill. Gelin explained to the customer that she had performed two procedures and “I'm not
allowed to do a third one.”
Gelin explained that the procedures she is required to follow are on a “paper taped
on the door” of the cashier’s cage. Neither party introduced the “paper taped on the door.”
Casino Operations Manager Charles Benitez, when asked whether there was a “limit to
the number of transactions that can be done,” answered “No.” I question the veracity of
that answer insofar as a memo dated November 6 from Chief Financial Officer Mary Ann
Robinson states that she respected the fact that Gelin “did not want to change up,” but she
“could have been more accommodating.” Gelin honestly believed that she could not
perform a third transaction with the same customer. She credibly testified that “You have
to do one procedure first, . . .cash the ticket, pay the person, and clear your hand. . . . [H]e
give me 15 cents. And I take the change and I give him a dollar. That make it two
procedures. So I'm not allowed to do a third one. So he was upset.” Benitez noted that,
insofar as the customer had requested $20 dollar bills at the outset, Gelin could have
taken the $19 in bills, the 85 cents, the additional 15 cents, and given him a $20 bill.
The customer, who Robinson’s memo describes as being confrontational, told Gelin
that he was a friend of Dan Adkins and he was “going to make sure I was fired.” The
customer stated that he wanted to talk to Gelin’s supervisor, and she called her
supervisor, Kristian Valdez, on the radio telephone and informed him she had an “issue
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with a customer.” He asked that she “call me on the phone.” She did so and explained the
situation. Valdez initially said that he was coming, but “a few seconds later he called me
back, he said do the transaction when he's on the phone with me.”
Gelin informed that customer that her supervisor had approved the transaction. He
asked why she had not done “it in the first place.” Gelin reexplaind that that she was “not
allowed to do it.” The customer put the money on the counter. Valdez had stayed on the
line. Gelin told Valdez that “the customer just threw the money on the counter.” The
surveillance video does not reflect that the money was thrown. It was shoved onto the
counter under the grate at the cashier window. Valdez told her to “leave it there, I'm
coming.” It took approximately 5 minutes for Valdez to arrive. During that time, Gelin
avoided any further interaction with the customer.
Valdez arrived, introduced himself and explained that the reason that Gelin could
not give him the $20 bill was because of the rules. “She don't make the rules, she have to
follow them.” The customer stated that he was “going to make sure the two of you don't
work here no more.” Valdez told Gelin to give the customer a $20 bill and she did.
Gelin asked Valdez “if everything is okay?” He answered, “[Y]eah, everything is
okay.” Gelin asked, “I'm not in trouble?” Valdez answered, [Y]ou doing your job, you just
follow the rules.” Gelin replied, “[O]kay.” Valdez did not testify.
The memo from Chief Financial Officer Robinson reports that the customer claimed
that, after being told to give him a $20 bill, Gelin refused to touch the money. She notes
that the surveillance tape was being obtained and that Benitez needed to speak with the
supervisor. It concludes that, if the customer’s account is correct, Gelin should be
disciplined for insubordination. It concludes that, although she respected that Gelin “did
not want to change up,“ she did not “exhibit the image of Mardi Gras that we want to
project to the public.”
The video confirms that Gelin refused to touch the money tendered by the
customer. It also confirms that the customer did not “throw” the money, although that is
what she reported to Valdez.
Gelin did not work on November 6. When she arrived at work on November 7 she
was directed to report to human resources.
Present at the human resources office were Director Feinberg, Slots Department
Director Charles Benitez, and a security officer. Feinberg told Gelin that she was
terminated. Gelin asked who fired her and Feinberg replied that it was not him, “it came
from above of me.” Gelin asked where Valdez was, that the customer had said that he was
“going to make sure the two of us get fired, why Kristian [Valdez] is not here with me?”
Either Feinberg or Benitez answered, “[D]on't worry about it.” Gelin was told that she was
disrespectful to the customer. Gelin replied that she was “not allowed to do it because of
the rules,” and, addressing Benitez, said, “Charlie, you're the one who put the rules on the
door for us to follow.” Benitez did not reply. Gelin questioned why the rules did not contain
an exception, that cashiers did that procedure every day and “[w]e never do like three
times.” Neither Feinberg nor Benitez responded. Gelin was asked to sign a paper. She
refused and asked whether this was “because I'm in the Union?” No one replied.
Benitez denied having any knowledge of the union activities or sympathies of Gelin.
He denied that she mentioned the Union at the time she was discharged. I credit Benitez.
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b. Analysis and concluding findings
Under the analytical framework of Wright Line, I find that Gelin engaged in union activity.
The record establishes animus. The record does not establish knowledge. Even if it did, the
Respondent established that it would have discharged Gelin in the absence of union activity.
Gelin claims to have begun making home visits in late October. She did not specify a
number, nor did she identify anyone that she visited. She acknowledges that she kept her visits
“private.” There is no evidence that she was involved in any conversation with any supervisor or
manager relating to the Union or visits from strangers. Charles Benitez credibly denied being
aware of any union involvement by Gelin.
Counsel for the General Counsel argues that the timing of the discharge, the 8(a)(1)
violations, the failure to present Valdez, and inconsistent testimony regarding disciplinary
procedures support a finding that Gelin was discriminatorily discharged. I disagree.
The timing of the discharge related to the incident. Benitez was directed by Chief
Financial Officer Robinson to investigate the claim of the customer that, after being told to
give him a $20 bill, Gelin refused to touch the money he placed on the counter. She notes
that the surveillance tape was being obtained and that Benitez needed to investigate
further. The failure of Valdez to testify is immaterial. Gelin admits that she was directed to
give the customer a $20 bill. That direction was retracted when Gelin informed Valdez that
the “customer just threw the money on the counter.” The surveillance tape contradicts that
statement which was the predicate for Valdez telling Gelin not to do anything, that he was
coming. Benitez noted that Gelin had a long record of various infractions, but that “write-
ups” expire after 6 months or a year, depending upon the infraction. Gelin’s prior write-ups
were not mentioned at her termination. The employee handbook specifies that a first
offense of lying or gross misconduct can result in dismissal.
The record does not establish that the Respondent had knowledge of Gelin’s union
activity. Even if it did, the Respondent established that it would have discharged her in the
absence of that activity. I shall recommend that this allegation be dismissed.
3. James Walsh
a. Facts
Walsh began working for the Company as a bartender on September 6. There is no
evidence of any shortcomings in his work performance. He reported to Beverage Manager Bill
Fodor. Walsh began making home visits in late October. As already discussed, he was asked
by Fodor whether he had been visited. He was discharged on November 8.
On November 8, shortly after Walsh began working at the bar to which he was
assigned, Food and Beverage Director Sallyanne Kelly told him to follow her, and she
escorted him to human resources and left him in an office with Assistant Food and
Beverage Director Jay Hasan, Human Resources Director Steven Feinberg, and a security
guard. Hasan informed Walsh that he was still within his 3 month probationary period, that
he had been employed for only 2 months, and that “they were deciding to end my
employment.” Walsh asked for a reason and Hasan answered that “because it was a
probationary period he didn't need a reason.” Walsh kept “pushing the issue,” and Hasan
told him it was “my work performance review.” Walsh asked to see the review, and was
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told that “it was purely observed.” Walsh asked Human Resource Director Feinberg if he
“thought this had anything to do with my union activity.” Feinberg answered that “he wasn't
allowed to answer that question.” Walsh asked the same question of Hasan who replied
“that was above him and he also wasn't allowed to answer that question.” Walsh noted
that Feinberg was “clearly rattled by the question” insofar as he avoided eye contact and
shuffled papers.
Feinberg did not testify. Walsh’s direct supervisor Bill Fodor was not present when
Walsh was discharged. Fodor did testify and addressed problems relating to the attendance of
Nnaemeka. He did not report any shortcomings in the work performance of Walsh or any
improper actions by him.
Hasan did testify and claimed that Walsh was discharged because of complaints by “two
different employees.” He stated that Christine Forbes came to him “and complained that
Steve [sic] . . . asked her for her cell number, he asked her for her address to meet with
her . . . .” Hasan claimed that Jacqueline Bello reported that Walsh approached her and
“asked a couple of questions about how does she like working for Mardi Gras, and she just
told him she was happy and she asked him to leave her alone.”
Hasan asserted that he “took their statement and passed it on to HR and my
Director.” No written statements were offered into evidence. As hereinafter discussed,
Hasan sent employee Terrell Blow to human resources to give a written statement with
regard to a short conversation he had with Steven Wetstein. Hasan admitted that he never
confronted Walsh regarding the reports of Forbes and Bello. Neither Forbes nor Bello
testified. Hasan stated that it “was determined” that Walsh “be terminated for his action,
for . . . he has been working for the Company less than 90 days and his behavior was not
acceptable.” The Company has no rule prohibiting employees from speaking with each
other about nonwork related subjects. Hasan did not report that either Forbes or Bello
claimed that their work was interrupted.
So far as this record shows, Walsh’s direct supervisor Beverage Manager Fodor was not
involved in the discharge decision. Hasan’s characterization of the information he received as
“complaints” does not comport with the evidence. Although stating that Forbes was “bothered
by” Walsh’s asking for her cell phone number and address, she did not report whether she
had given him that information or requested that he leave her alone. Hasan made no claim
that, after Bello asked Walsh to leave her alone, he had not complied with that request. The
“complaints” were not mentioned when Walsh was discharged.
b. Analysis and concluding findings
In assessing the evidence under the analytical framework of Wright Line, I find that
Walsh engaged in union activity. Although there is no direct evidence that the Respondent was
aware of that activity, Beverage Manager Fodor had asked Walsh whether he had been visited.
In Kajima Engineering & Construction, 331 NLRB 1604 (2000), the Board held that knowledge
may properly be inferred in circumstances establishing “an employer’s demonstrated knowledge
of general union activity, the employer’s demonstrated union animus, the timing of the discharge
in relation to the employee’s protected activities, and the pretextual reasons for the discharge
asserted by the employer.”
The exchange of letters on October 31 and the letter to Adkins from Wendi Walsh
establish that the Respondent was fully aware of the organizing effort of the Union. The record
establishs animus both by interrogations and threats. Walsh was discharged soon after Hasan
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learned of his contact with Forbes and Bello with no investigation.
I note that, insofar as the October 26 memorandum requested that employees report
visits by strangers, there could be no claim that Walsh was a stranger if the employee visited
had given him her telephone number and address.
There is no evidence that employees may not request telephone numbers or addresses
from fellow employees. Hasan did not report that Forbes requested that Walsh leave her alone.
Bello reported that she told Walsh to leave her alone, and there is no claim that Walsh did not
do so. I find that Hasan concluded that Walsh was requesting contact information from
employees in order to seek support for the Union. My conclusion in that regard is confirmed by
the failure of the Respondent to confront Walsh with the “complaints” in order to determine
whether they were complaints or comments.
Accepting one version of an event without obtaining or considering all the facts suggests
a discriminatory motive. As stated, with Board approval, in Bantek West, Inc., 344 NLRB 886,
895 (2005), “’The failure to conduct a meaningful investigation or to give the employee [who is
the subject of the investigation] an opportunity to explain’ are clear indicia of discriminatory
intent. K & M Electronics, 283 NLRB 279, 291 fn. 45 (1987).”
The Respondent did not obtain written statements from Forbes or Bello. There is no
explanation regarding why Forbes reported that she was “bothered.” There is no evidence,
following her request, that Walsh did not leave Bello alone. Hasan did not consult with Fodor,
who testified to no shortcomings by Walsh regarding his work as a bartender. The Respondent
never gave Walsh an opportunity to address the situation and did not, at the time of the
discharge, even inform him of the “complaints.”
Human Resources Director Feinberg did not testify. Walsh credibly testified that,
when being discharged, he asked Feinberg if he “thought this had anything to do with my
union activity.” Feinberg, who was “clearly rattled by the question” insofar as he avoided
eye contact and shuffled papers, answered that “he wasn't allowed to answer that
question.” Walsh asked the same question of Hasan who replied “that was above him and
he also wasn't allowed to answer that question.”
There is no evidence that employees may not request telephone numbers or addresses
from fellow employees. There is no evidence that employees are summarily discharged without
investigation when another employee complains about a specific interaction. When the reason
for a discharge is either false or does not exist, the Respondent has not rebutted General
Counsel's prima facie case. Limestone Apparel Corp., supra. The Respondent, by discharging
Walsh because of his union activity, violated Section 8(a)(3) of the Act.
4. Juna Dorlean
a. Facts
Dorlean was a housekeeping employee under the supervision of Jean Michel. She
began working for the Company in November 2007. Her native language is Creole, but she
speaks and understands some English. She testified with the assistance of an interpreter. She
and Supervisor Michel “mostly” speak Creole with each other. Michel reports to Facilities
Manager Tommy Grozier who speaks only English. Dorlean was discharged on November 11.
Dorlean signed a union authorization card on November 4 and thereafter made home
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visits. She recalled making about 15 such visits and specifically recalled attempting to speak
with an employee named Jackie, whose last name she does not know. Both attempts were by
telephone. Dorlean, so far as this record shows, did not tell Jackie what she wanted to speak
about with her. On the first occasion, Jackie told her that she was in class and on the second
occasion, she hung up the phone. Dorlean placed these calls as being on Tuesday and
Wednesday, November 8 and 9, shortly before she was discharged. The complaint alleges that
Dorlean was discharged on November 11, but she testified that she was discharged “on
Thursday when I went to work,” which would have been November 10. The change of status
form reflecting the discharge for gross misconduct is dated November 12.
Dorlean explained that, on Thursday, her supervisor, Jean Michel, told her to report to
Facilities Manager Tommy Grozier’s office. She did so. When testifying in English, Dorlean said
that she, a security person, Grozier and “Steve,” presumably Human Resources Director Steven
Feinberg, were present. When testifying in Creole, she did not mention “Steve.”
Grozier informed Dorlean that she was being fired because Supervisor Michel
“called me in his office and I didn't go.” He noted that she had taken a 5 minute break
before her scheduled 15 minute break. Dorlean claimed that “everybody do[es] it.“ She
requested to speak with ”Michael,” presumably Senior Operations Manager Michael
DeLuca. Grozier told her that she could make an appointment to speak with him. He gave
Dorlean a paper with a number to call. Dorlean said “they never answer the phone,” but
then she said that they “tell me to coming [come] back and they don’t tell me nothing.”
Michel explained that he had observed Dorlean, prior to her 7 p.m. break on Sunday,
October 30, out of her work area on the first floor ordering food at 6:25 p.m. on the second floor.
He acknowledged that employees are permitted to do that if they obtain permission from their
supervisor, but Dorlean had not obtained his permission. Michel was busy and did not speak
with Dorlean on Sunday. On Monday she did the “[s]ame thing.” He did not speak to her
immediately because he knew her shift did not end until after midnight. About 8 p.m., Michel
asked Dorlean to come to his office. She waked away from him. He called again and she
replied, “I’m working.” She did not report to his office until 15 or 20 minutes later. Michel
wrote a memo dated October 31 documenting the conduct and placed it under Grozier’s
office door because Grozier was on vacation.
Dorlean acknowledged that Michel asked her to come to his office, and claims she
did so within 5 minutes. She denied replying that she “was working.” I do not credit that
testimony. Michel would have had no need to document a delay of 5 minutes. She
asserted that Michel “didn't tell me anything, he didn't write me up, and then on Tuesday
[sic] I get fired.”
Grozier had, in early September, pursuant to a report from Michel regarding an incident
on September 3, spoken with Dorlean regarding her attitude. Michel reported that that Dorlean,
in Creole, had said “a lot of things,” that he cautioned her regarding her language, and that she
replied, “I don't care. You're [sic] going to get fired. I don't care.” Grozier wrote on the
September 3 report that he “[s]poke with Juna concerning her attitude.” Upon receiving the
report of October 31, Grozier spoke with Michel and human resources. They determined that
the counseling in September was her final chance and that Dorlean should be terminated. “We
decided . . . that’s it.”
Dorlean denied having any previous conversation with Grozier, being disciplined in
September, or stating that she did not care if she got fired. I do not credit that testimony. Michel
credibly testified that, when he cautioned her in September regarding what she was saying to
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him in Creole, Dorlean told that she did not care that he was going to fire her. The
contemporaneous notes made by Grozier on the typewritten memorandum dated September 3
confirm that he did have a conversation with her regarding her attitude.
Grozier and Michel both credibly denied that the Union played in part in the decision to
discharge Dorlean.
b. Analysis and concluding findings
In assessing the evidence under the analytical framework of Wright Line, I find that
Dorlean engaged in union activity. The record establishes animus. The record does not
establish knowledge, and even if it did, the Respondent established that it would have
discharged Dorlean in the absence of her union activity.
As already noted, the record does not establish that Dorlean, in her two unsuccessful
attempts to contact Jackie, told Jackie what she wanted to speak with her about. Dorlean, unlike
various other employees, did not report that any supervisor questioned her about visits.
Regarding leaving her work station to order food, Dorlean claimed that “everybody
do[es] it.“ The General Counsel presented no corroboration of that testimony. Michel was
clear that, although ordering food was permitted, the employee had to have permission to
leave the assigned work station in order to do so.
The brief of the General Counsel notes the timing of the discharge and the absence
of evidence that Grozier was “on vacation for such a long period.” It also notes that
abusing break periods is an offense subject to progressive discipline. The problem with
the foregoing arguments is that the memorandum prepared by Michel predated any union
activity by Dorlean and she was not discharged for abusing break periods.
Dorlean was discharged for gross misconduct, her attitude as shown in refusing to
obey the summons of her direct supervisor and responding, “I’m working.” Her insolent
refusal to comply with Michel’s directive after having been counseled regarding her
attitude by Grozier in September was the basis for her discharge. Refusals to comply with
supervisory directives are not subject to progressive discipline. Both Dorlean’s direct
supervisor and manager testified. There is no probative evidence that the decision to
discharge Dorlean related to her union activity.
The record does not establish that the Respondent had knowledge of Dorlean’s union
activity, and, even if it did, the Respondent established that it would have discharged her in the
absence of her union activity. I shall recommend that this allegation be dismissed.
5. Steven Wetstein
a. Facts
Wetstein began working for the Company in January 2011 as a saucier, preparing soups
and sauces for the French Quarter restaurant which is located on the third floor of the casino.
Wetstein learned of the organizational campaign in October and began speaking to fellow
workers on behalf of the Union and making home visits. He was discharged on November 23.
Wetstein recalled that, on November 9, the chef, identified as Chef Wally, commented
that he understood that people from the Union were visiting people’s homes and asked what a
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Union could do. Wetstein answered, “[H]igher wages.” Chef Wally then referred to having to pay
union dues and asked whether, if “you leave can you get them back.” Weinstein answered that
he did not know.
On November 22, Adkins spoke to the employees working in the French Quarter
restaurant. He told them the Union would be making “false promises,” that, contrary to what the
Union was saying, “there was no neutrality agreement” and “he was looking to sue over this.”
On November 23, Wetstein went from the third floor to the food storage area on the first
floor, something he does “very often,” to get some food. He saw Terrell Blow, the son of
Security Supervisor Tammy McArthur. Wetstein told Blow that “some of us are organizing a
union and I think we can do better with a union.” He asked if they could speak about it
outside of work. Blow answered that “he was busy with school.” Wetstein asked if they
could exchange phone numbers, Blow said that his phone had been turned off. The
conversation was less than a minute.
Wetstein recalled that Blow was either taking food out of one of the walk-ins or
preparing to take it to someplace outside of that area. He noted that Blow “didn't change
anything because of me.”
Blow reported his encounter with Wetstein to Assistant Food and Beverage Director
Jay Hasan, stating that Wetstein had “approached him, asking him for his cell number, his
home address, and to meet him outside to talk about whatever organization he was talking
about and to meet with him outside, and he was bothered by it.”
Hasan sent Blow to an administrative assistant in human resources where he
executed the following statement:
On 11/23/11 at about 10:00 am in the morning, I was in the cooler, and fellow employee
Steven Wetstein entered and started speaking to me about the union. He was asking me
if I wanted to join, if I wanted to exchange phone numbers, and if I could meet up with
him after work to talk about it. I replied that I am busy after work. so I can’t, and my
phone is currently disconnected, but I'm ok. He said ok, and asked me to get back with
him, but I told him that most likely I would not. I then walked away.
The foregoing statement reports no interference with work.
Hasan admitted that he recommended that Wetstein “be fired without getting Mr.
Wetstein's side of the story in person.” No one obtained Wetstein’s side of the story. The
statement made by Blow does not reflect any interference with his work. People can still
talk while sorting cans or lifting boxes.
Later that day, November 23, Assistant Food and Beverage Director Hasan came
into the French Quarter kitchen and took Wetstein to an office in human resources where
Director Feinberg, Food and Beverage Director Kelly, and Security Supervisor Tammy
McArthur, mother of Terrell Blow, were present. Wetstein recalled that Hasan remained,
but Hasan denied remaining. The foregoing disagreement is immaterial.
Feinberg told Wetstein that he was being terminated. Wetstein asked why.
Feinberg said that he had “interfered with the work of an employee who told me that he
was busy.” Wetstein asked who, and, upon receiving no answer, repeated, “[W]ho was it.”
Feinberg said Blow. Wetstein stated, [N]o, I didn't interfere with him in any way.” Wetstein
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asked if there was any “paperwork to document my termination.” Feinberg said, “[N]o.”
Wetstein said, “[W]ell, this is about the Union.” Feinberg said that it was not. Wetstein
responded that this was illegal that “I have a right to engage in legal union activity.”
McArthur asked for Wetstein’s keys. As he was leaving he said that he would “see
everyone there next when we had won a union contract and I'd been reinstated.”
Hasan, at the hearing, asserted that Wetstein’s discharge was related to a prior offense
of “double dipping,” using an unclean spoon to taste whatever was being cooked. Although
Hasan claimed that he recommended termination at that time and a “Group 2” discipline was
issued, no documentary evidence supporting that claim was introduced. The formal discharge
documents do not reflect any reliance upon progressive disciple, and even if they did, Wetstein
did nothing wrong on November 23. Hasan asserted that Wetstein was “out of his work area,”
but there is no probative evidence refuting Wetstein’s credible testimony that he goes to the
food storage area on the first floor “very often” to get food.
An unsigned memorandum, bearing Feinberg’s name, reports, "On November 23rd,
Steven Wetstein, a line cook was terminated for disrupting the workplace by interfering
with Terrell Blow's ability to work. Steven approached Food and Beverage employee
Terrell Blow about union-related inquiries while on company time." The “Change of Status”
form, the discharge document, reports the reason for discharge as “disrupting the
workplace by interfering with another employee's ability to work.” There is no reference to
progressive disciple or “double dipping a spoon.”
Wetstein confirmed that he and other employees spoke about nonwork related
subjects while working, the weather, commuting, things of that sort. There is no evidence
that discipline, much less discharge, was ever imposed for such conversations.
b. Analysis and concluding findings
In assessing the evidence under the analytical framework of Wright Line, I find that
Wetstein engaged in union activity and that the report of Blow establishes that the Respondent
was aware of that activity. The record establishes animus. His discharge was an adverse
action that affected his employment. I find that the General Counsel has carried the burden of
proving that union activity was a substantial and motivating factor for the discharge. Manno
Electric, 321 NLRB 278 (1996). Thus, the burden of going forward to establish that the same
action would have been taken against him is upon the Respondent.
There is no evidence that employees may not speak with each other regarding nonwork
related subjects or request telephone numbers or addresses from fellow employees. In this
instance, unlike the failure of the Respondent to obtain written statements from Forbes or Bello
with regard to the discharge of James Walsh, the Respondent did obtain a written statement.
That statement reflects no interference with the work being performed by Blow. Blow was either
taking food out of one of the walk-ins or preparing to take it to someplace outside of that
area and, as Wetstein credibly testified, Blow “didn't change anything because of me.”
Blow did not testify.
Although Hasan referred to prior derelictions by Wetstein, no documentation of those
alleged derelictions was presented at the hearing. The only reason stated when Wetstein was
discharged was Feinberg’s claim that he had “interfered with the work of an employee who
told me that he was busy.” Wetstein, after Feinberg identified Blow, stated, “[N]o, I didn't
interfere with him in any way.” There is no evidence to the contrary. The statement of Blow
reports no interference with his work. He told Wetstein that he was “busy after work.”
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When the reason for a discharge is either false or does not exist, the Respondent has
not rebutted General Counsel's prima facie case. Limestone Apparel Corp., supra. The
Respondent, by discharging Wetstein because of his union activity, violated Section 8(a)(3) of
the Act.
6. The discharges of the employees in the delegations.
a. Facts
As already discussed, a delegation from the Union sought to speak with Adkins on
November 17 and 18. The delegation that went to the casino on November 17 consisted of 14
people: Union Organizer Mike Hill, three other organizers, two community activists, the
Reverend Richard Aguilar and Jeanette Smith, four former employees who had been recently
discharged, and four current employees, Dianese Jean, Alicia Bradley, Amanda Hill, and
Tashana McKenzie.
Hill explained that the purpose of the visit was to introduce themselves to Adkins, give
him the flier showing the members of the organizing committee, and “hopefully sit down
and talk” regarding exercising “our rights to access of the casino.”
The Company operates an extensive video surveillance system in order to account for
conduct on the premises, including the conduct of its employees who regularly handle large
amounts of cash. The surveillance video of November 17 shows the delegation arriving outside
the casino and, from another camera, entering the casino. There is no audio.
The video shows the delegation following Hill and Aguilar to the reception desk. The
video reflects that Aguilar was the first to speak to the receptionist. Hill then enters the
conversation. The receptionist made a call. Hill testified that the receptionist reported that
Adkins was on a conference call and “if we could wait a few minutes they'd get back to
us.” The video reflects that, in less than 2 minutes, an employee approached the group
which then moved to an area away from the reception desk and between, but out of the way of,
the two entrance doors. As reflected on the video, multiple customers, including a male
customer in a red shirt, a male customer in a blue and white striped shirt, and a female
customer with a pocketbook, walked through or around the delegation. There was no purposeful
impeding of access, and any delay was incidental.
Shortly after the delegation moved to the area between the two entrance doors, Director
of Security Richard Hopke, accompanied by others, approached the delegation and told them
that they needed to leave. Hill introduced himself and explained that they were there to
introduce themselves to Adkins and get access to the casino. He showed the folder he was
carrying to Hopke. Hopke replied that there was no meeting, “that he's going to call the cops
and arrest us if we didn't leave.” Hill answered that there was “no reason to do that,” and
referred to the agreement. Hopke answered that, as far as he was aware, “there is no
agreement.” Hopke refused to take the folder. Hill placed it on the reception desk. Hopke
walked by and knocked it off, and one of the other security guard stepped on it. The
delegation left.
A delegation from the Union led by Organizer Hill returned to the casino November 18.
Neither Aguilar nor Smith accompanied this delegation. The delegation consisted of 10 people:
Union Organizer Mike Hill, three other organizers, three of the recently discharged employees,
and three current employees, Amanda Hill and Tashana McKenzie, who had been in the
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November 17 delegation but who had not, at that point, been discharged, and Theresa
Daniels-Muse who had not been present on November 17. Hill explained that, having been
denied a meeting the previous day, Adkins might have changed his mind, so that the
group could introduce themselves and obtain access pursuant to the MOA. On this
occasion the surveillance video reflects that security personnel appeared in 1 minute and
10 seconds. The delegation obeyed the instruction to leave the reception area. They went
outside where the events discussed above regarding paragraph 15 of the complaint
occurred. The video from November 18 reflects no interference with the access of customers.
Dianese Jean had worked as a cage cashier since 2006. She accompanied the
delegation on November 17. She worked on November 18. Near the end of her shift, her
supervisor directed her to report to human resources. She was accompanied by Casino Shift
Manager Michael Patterson. At human resources, Director Feinberg, a security guard,
Patterson, and Jean were present. Feinberg informed Jean that she had been terminated. Jean
asked why and Feinberg replied, “[Y]ou know what you did, you violating work rules, you
know what you did.” He noted that it was an “executive decision.” Jean asked whether she
was “supposed to have a termination letter,” and Feinberg did not reply. He handed her a
“post-it” with a phone number and told her that, if she wanted to appeal her termination, a
meeting would be set up with “with you and Cathy [Reside].”
Alicia Bradley had worked as a “Players Club” representative since January 2011. She
provided assistance to individuals who obtained Players Club cards. Her shift was from 4 p.m.
until midnight. After going to the casino with the delegation on the 17th, she worked her normal
shift. On the 18th, shortly after she began her shift, she was directed to go to human resources
where she met with Director Feinberg, a security guard, and her manager, Elizabeth Hobart.
Feinberg told Bradley that the Company had decided to terminate her. She asked for what
reason. He answered, “[F]or violating company policy.” Bradley asked which policy, could
he “show me the policy in writing.” Feinberg answered, “[Y]ou know what you did.” Bradley
asked whether this had “anything to do with me being a part of the Union.” Feinberg
answered, “I'm not allowed to answer that question.” Bradley asked who decided to
terminate her, and Feinberg answered, “[T]he Executive Office.” Bradley asked if he could
be more specific and Feinberg told her, “Dan Adkins, Cathy Reside.” He then gave her a
“sticky note” relating to any appeal of the discharge decision.
Amanda Hill, who had been employed since November 2006, worked as a money
sweeper, collecting money from the slot machines and taking it to the money room. She worked
from 4 a.m. until 8 a.m., and worked before returning to the casino on November 18 with the
delegation. Her next workday would have been the early morning of November 21, but her
supervisor called her and told her not to report, to meet at human resources at noon on the 21st.
She did so. Hill met with Director Feinberg and a security guard. Feinberg informed her that she
was terminated. She asked for a letter but was not given one. Feinberg told her that “it was
coming from the Executive, it wasn't them.” He gave her a “sticky note” with a telephone
number. Hill called and got an appointment to meet with Adkins the first week of December.
That meeting is discussed above with regard to paragraph 16 of the complaint.
Tashana McKenzie was a floor attendant who began working at the casino in March
2007. As already discussed, her supervisor, Evans Etienne told her to “watch her back.”
McKenzie was not scheduled to work on either the 17th or 18th. After accompanying the
delegation on the 18th she received a voice mail message telling her not to return to work on the
19th, to report to human resources at 10 a.m. on Monday, the 21st. As McKenzie was waiting for
her appointment, Slots Department Director Charles Benitez walked over and said, “I can't
believe I'm losing two of my best floor attendants,” referring to McKenzie and Daniels-
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Muse. At human resources McKenzie met with Director Feinberg and Benitez. A security
guard was present. McKenzie asked if she could record their meeting. She was excused
from the meeting and, when recalled into the meeting, was told that “it won’t hold up in
court” and that she did not have their consent “to record as to why I'm being fired.”
McKenzie put her phone, which apparently was also a recorder, on the desk and stated
that she “wasn't going to record it without his consent.” Feinberg told her that he did not
“believe a word that I'm saying, for me to get out.” She was not given a document
reflecting her termination. When asked why she sought to record the meeting, McKenzie
explained that she “felt as if I was being fired for being there to try to talk to Dan Adkins on
the neutrality agreement.”
Theresa Daniels-Muse was also a floor attendant and had worked at the casino since
November 2006. She had not been in the delegation that went to the casino on November 17.
Following the visit she was told not to report on her next scheduled day, but to report to Human
Resources on Monday, the 21st. She and McKenzie went together. McKenzie had met with
Feinberg first. Daniels-Muse entered the room in which Feinberg, Benitez, and a security
guard, Tammy, were present. She nodded at Benitez, acknowledging his presence. Fienberg
told her, “[W]e want to talk to you.” Daniels-Muse said, “[O]kay,” and asked “if the
conversation could be recorded.” Feinberg replied that the conversation was over. The
security guard, Tammy, asked if she had anything left in her locker, and Daniels-Muse
explained that she already knew that she was going to be fired because “they never tell
me not to report to work, and to come to Human Resources, I knew my time was up.”
Feinberg did not testify. Adkins testified that the employees were discharged for being
“disruptive,” and he asserted that they “completely blocked the entrance for several
minutes.” That assertion is incorrect. There is no claim that the members of the delegation
engaged in any chanting or that they locked arms creating a barrier. The video reflects that, on
November 17, they stood together behind Hill and Aguilar when Hill requested to meet with
Adkins. The presence of the group, until they moved to the side, caused customers to either go
around the group or work their way through. Any impeding was incidental. The surveillance
video shows customers consistently going into the casino without any difficulty. Adkins
acknowledged that customers “eventually” got through, but the delegation “did not
voluntarily move out of the way.” He admitted that there “was less than a minute's worth of
delay” to any customer but that “one minute, that's a long time.” The video reflects that any
delay was less than 10 seconds. There is no evidence that any customer’s access to the
casino was purposely impeded. The video of November 18 reflects no disruption.
The change of status forms for all five employees report that the reason for termination
was “violating company work rules,” but no rule is cited. When Adkins was called by the
Respondent at the hearing, counsel for the Respondent referred him to paragraph 2 on page 55
of the employee handbook which, inter alia, provides:
If an employee is in a group of individuals that are not Mardi Gras employees and are
not acting in accordance to the Mardi Gras standards or are not obeying House Rules
the employee conduct thorough association may be subject to disciplinary action up to or
including termination.
When examined pursuant to Section 611(c), Adkins characterized the presence of the
delegation as “disruptive,” but he cited no rule. Adkins did not cite any rule when testifying at the
10(j) proceeding. Although asserting that Organizer Hill “shoved aside” a gentleman at the
reception desk on November 17, he cited no misconduct by any employee.
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b. Analysis and concluding findings.
The delegation went to the casino in order to speak with Adkins regarding the access
provided in the MOA. Although Adkins had, in his letter of October 31, refused to meet with the
Union, the letter did not assert that the MOA had expired. The employees who went with the
delegation were obviously supporting the organizational effort of the Union. Their support was
protected concerted activity. The Board, in Red Top Cab & Baggage Co., 145 NLRB 1433
(1964), held that “[c]oncerted activities in pursuit of a legitimate employee objective do not lose
their protected character because engaged in concertedly with nonemployees who happen to
have a legitimate concurrent interest with employees.” Id. at 1450.
The employees’ activity in support of the organizational objective of the Union,
regardless of the viability of MOA, was protected union activity. Whether they were “mistaken in
suspecting the Respondent of reneging on its agreement” to give the Union access pursuant to
the MOA is immaterial insofar as there is no evidence that the employees were acting in bad
faith. Crown Plaza LaGuardia, 357 NLRB No. 95. slip op. at 3 (2011).
The Respondent argues that the video of November 17 shows that Organizer Hill
“effectively shoved aside” a gentleman at the reception desk. The video does not reveal any
shoving. Even if it did, precedent establishes that, in situations involving multiple employees, the
Board will “analyze each employee’s specific conduct” before “finding that an employee has lost
the protection of the Act.” Crown Plaza LaGuardia, supra, slip op. at 4.
Insofar as the employees were discharged for engaging in protected concerted union
activity, the proper analysis is that prescribed in Atlantic Steel Co., 245 NLRB 814 (1979). As
restated in Crown Plaza LaGuardia, the Board examines four factors to determine whether
employees’ alleged improper conduct during otherwise protected activity warrants a forfeiture of
the Act’s protection: (1) the place of the discussion; (2) the subject matter of the discussion; (3)
the nature of the employee’s outburst or alleged misconduct; and (4) whether the conduct was
provoked by an employer’s unfair labor practice. The place was the entrance to a public
gambling casino. The discussion was a request that Adkins meet with the delegation. There was
no provocation relating to any outburst because there was no outburst. On November 17 the
delegation moved to the side of the reception area when asked to do so and left the reception
area when requested. On November 18, after being present for less than 2 minutes, the
delegation left the reception area when requested to do so. The alleged misconduct consisted of
participating in the protected concerted activity of seeking to meet with Adkins concerning the
right of the Union to organize on the premises as provided by the MOA.
Contrary to the testimony of Adkins, review of the surveillance videos establishes that
the delegation did not “completely” block “the entrance for several minutes,” The
surveillance videos show patrons moving around and through the delegation and entering the
casino. The longest it took anyone observed on the surveillance video of November 17 to do so
was 10 seconds, far less than a stop at a traffic light. There was no chanting or locked arms
blocking access. There was no disruption. The video of November 18 reflects no disruption.
The employees who engaged in the protected concerted activity of going with a
delegation seeking to meet with Adkins engaged in no misconduct that deprived them of the
protection of the Act. The Respondent suspended Theresa Daniels-Muse, Tashana McKenzie,
and Amanda Hill by directing them not to report to work but to report to human resources on
November 21. The Respondent, by discharging, Dianese Jean, Alicia Bradley and suspending
and discharging Theresa Daniels-Muse, Tashana McKenzie, and Amanda Hill because of their
participation in protected concerted union activity violated Sections 8(a)(1) and (3) of the Act.
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Conclusions of Law
1. By coercively interrogating employees regarding their union sympathies and the union
activities of other employees, by threatening employees with unspecified reprisals, by
threatening employees with arrest for engaging in protected concerted union activities, and by
informing employees that they had been discharged because they engaged in protected
concerted union activities, the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By suspending Theresa Daniels-Muse, Tashana McKenzie, and Amanda Hill., and by
discharging Sochie Nnaemeka, James Walsh, Dianese Jean, Alicia Bradley, Theresa Daniels-
Muse, Tashana McKenzie, Amanda Hill, and Steven Wetstein the Respondent has engaged in
unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having unlawfully suspended Theresa Daniels-Muse, Tashana
McKenzie, and Amanda Hill and then discharging them and by discharging Sochie Nnaemeka,
James Walsh, Dianese Jean, Alicia Bradley, and Steven Wetstein the Respondent has engaged
in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act it must offer them reinstatement and make them whole for any
loss of earnings and other benefits. Backpay shall be computed on a quarterly basis from
computed on a quarterly basis from the respective dates of their suspensions and discharges to
date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate 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), enf. denied on other grounds sub.nom. Jackson
Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
The Respondent will also be ordered to post an appropriate notice.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended5
ORDER
The Respondent, Hartman and Tyner, Inc., d/b/a Mardi Gras Casino and Hollywood
Concessions, Inc., Hallandale Beach, Florida, its officers, agents, successors, and assigns,
shall
1. Cease and desist from

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
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(a) Coercively interrogating employees regarding their union sympathies and the union
activities of other employees.
(b) Threatening employees with unspecified reprisals because of their union activities.
(c) Threatening employees with arrest for engaging in protected concerted union
activities.
(d) Informing employees that they have been discharged because they engaged in
protected concerted union activities.
(e) Suspending and discharging employees because of their union activities in support of
UNITE HERE! Local 355, affiliated with UNITE HERE! or any other labor organization.
(f) 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.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Sochie Nnaemeka, James
Walsh, Dianese Jean, Alicia Bradley, Theresa Daniels-Muse, Tashana McKenzie, Amanda Hill,
and Steven Wetstein full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make whole Sochie Nnaemeka, James Walsh, Dianese Jean, Alicia Bradley,
Theresa Daniels-Muse, Tashana McKenzie, Amanda Hill, and Steven Wetstein for the
discrimination against them, in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful suspensions and discharges of Theresa Daniels-Muse, Tashana
McKenzie, and Amanda Hill and the discharges of Sochie Nnaemeka, James Walsh, Dianese
Jean, Alicia Bradley, and Steven Wetstein and within 3 days thereafter, notify them in writing
that this has been done and that the suspensions and discharges will not be used against them
in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to determine the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facilities in Hallandale Beach,
Florida, copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms
provided by the Regional Director for Region 12, after being signed by the Respondent's

6 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.”
JD(ATL)–21–12
5
10
15
20
25
30
35
40
45
29
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. 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 duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since October 30, 2011.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of
the Act not specifically found.
Dated, Washington, D.C., September 18, 2012.
_____________________
George Carson II
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we 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
WE WILL NOT coercively interrogate you regarding your union sympathies or the union
activities of your fellow employees.
WE WILL NOT threaten you with unspecified reprisals because of your union activities.
WE WILL NOT threaten you with arrest for engaging in protected concerted union activities.
WE WILL NOT inform you that you have been discharged because you engaged in protected
concerted union activities.
WE WILL NOT suspend or discharge you because of your union activities in support of UNITE
HERE!. Local 355, affiliated with UNITE HERE! or any other labor organization.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Sochie Nnaemeka, James Walsh,
Dianese Jean, Alicia Bradley, Theresa Daniels-Muse, Tashana McKenzie, Amanda Hill, and
Steven Wetstein full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make whole Sochie Nnaemeka, James Walsh, Dianese Jean, Alicia Bradley, Theresa
Daniels-Muse, Tashana McKenzie, Amanda Hill, and Steven Wetstein for the discrimination
against them in the manner set forth in the remedy section of the decision.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful suspensions and discharges of Theresa Daniels-Muse, Tashana McKenzie, and
Amanda Hill and the unlawful discharges of Sochie Nnaemeka, James Walsh, Dianese Jean,
Alicia Bradley, and Steven Wetstein, and WE WILL, within 3 days thereafter, notify each of them
in writing that this has been done and that the suspensions and discharges will not be used
against them in any way.
HARTMAN AND TYNER, INC. D/B/A MARDI GRAS
CASINO AND HOLLYWOOD CONCESSIONS, INC.
(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.
201 E. Kennedy Blvd., South Trust Plaza, Suite 530, Tampa, FL 33602–5824, (813) 228–2641,
Hours: 8 a.m. to 4:30 p.m.
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, (813) 228-2455