Holdings Acquisition Co L.P., d/b/a Rivers Casino

National Labor Relations Board - Board Decisions

Apr 26, 2011

356 N.L.R.B. 1151 (N.L.R.B. 2011)

RIVERS CASINO
356 NLRB No. 142
1151
Holdings Acquisition Co. L.P. d/b/a Rivers Casino
and International Union, Security, Police and
Fire Professionals of America (SPFPA). Case 6–
RC–12701
April 26, 2011
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held November 9, 2009, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows 35 votes were cast for and 38
against the Petitioner, with no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs and, contrary to the hearing officer’s
recommendation, finds that the Employer’s imposition
and enforcement of an overly broad no-distribution poli-
cy, surveillance of union activity, prohibition on union
buttons, and grant of a benefit on the day of the election
was objectionable conduct that warrants setting aside the
election and directing that a new election be held.1 In
reaching this conclusion, we find that the hearing officer
erred by failing to find certain conduct objectionable and
by failing to assess the objectionable conduct as a whole
to determine whether it affected the results of the elec-
tion.
1. Alleged objectionable conduct
Overbroad No-Distribution Policy
Objection 7 alleges that the Employer “imposed and/or
enforced” an overbroad policy prohibiting the distribu-
tion of informational materials. The hearing officer over-
ruled this objection, finding that, although the Employ-
er’s conduct violated the Act, the conduct was isolated
and did not affect the results of the election. We disa-
gree.
The facts are undisputed. The Union petitioned for an
election among the Employer’s security employees. One
or 2 weeks before the election, Andre Barnabei, the Em-
ployer’s vice president of human resources, received a
call from the security department stating that there was a
disruption in the section of the parking garage reserved
for employees because someone was passing out union
materials. Barnabei testified that the Employer did not

1 No exceptions were filed to the hearing officer’s recommendation
to overrule Objections 1–7, 10–13, 15, and 19.
have a rule concerning the distribution of materials on
company property.
When Barnabei arrived at the parking garage, he dis-
covered off-duty security employee Brian Bradley stand-
ing alone, with T-shirts to offer to other employees.
Barnabei testified that he did not see what the T-shirts
said, but he believed that they supported the union
cause.2 Barnabei told Bradley that he could not distrib-
ute the T-shirts because it was causing a distraction.
Bradley stopped distributing the T-shirts, but stayed in
the parking garage to talk with other employees. The
hearing officer found, and neither party disputes, that
Bradley was off duty at the time of the incident and that
the parking garage was not a working area. Barnabei
testified that other employees had complained about
Bradley’s conduct.
It is well settled that off-duty employees have a right
under Section 7 to disseminate union material in
nonwork areas. See, e.g., Nashville Plastics Products,
313 NLRB 462 (1993) (finding that employer violated
Sec. 8(a)(1) by prohibiting off-duty employees from dis-
tributing union literature on company property); Tri-
County Medical Center, 222 NLRB 1089 (1976) (except
where justified by business reasons, a rule that denies
off-duty employees entry to parking lots, gates, and other
outside nonworking areas will be found invalid). In ad-
dition, it is settled that opposition of other employees to
Section 7 activity does not constitute a valid business
justification for banning it. See Power Equipment Co.,
135 NLRB 945, 965 (1962) (finding that employee com-
plaints about coworkers wearing union bowling shirts
was not sufficient to justify ban on shirts), enfd. in perti-
nent part 313 F.2d 438 (6th Cir. 1963); accord: Mead
Corp., 314 NLRB 732, 735 fn. 14 (1994) (citing Power
Equipment Co.). See also Jasper Seating Co., 285
NLRB 550, 550 (1987), enfd. 857 F.2d 419 (7th Cir.
1988).
Accordingly, we find that the Employer engaged in ob-
jectionable conduct when it prohibited Bradley, an off-
duty employee, from passing out union T-shirts in a
nonworking area during nonworking time.
Unlawful Surveillance
Again, the facts surrounding this allegation are undis-
puted. After directing Bradley to stop distributing the T-
shirts, Barnabei stayed in the parking garage for 15 to 20
minutes talking to Bradley. During this time, Bradley
stopped several passing employees to talk about the Un-
ion. Barnabei testified that he was standing close enough
to overhear Bradley tell an employee about an upcoming
union meeting.

2 The record does not establish what message the T-shirts bore.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1152
The hearing officer found that Barnabei did not engage
in objectionable conduct by continuing to stand next to
Bradley in the parking garage after preventing Bradley
from distributing the T-shirts. In reaching this conclu-
sion, the hearing officer reasoned that “Bradley knew full
well that Barnabei was there, and did not stop his con-
duct and efforts to speak with employees.”
Contrary to the hearing officer, we find that Barnabei
engaged in objectionable conduct when he remained in
the parking garage talking to Bradley and observing his
conduct. The Board has recognized that, although an
employer’s “routine observation” of open, public union
activity on or near its property does not constitute unlaw-
ful surveillance, an employer violates the Act when “it
surveils employees engaged in Section 7 activity by ob-
serving them in a way that is ‘out of the ordinary’ and
thereby coercive.” Aladdin Gaming, LLC, 345 NLRB
585, 585–586 (2005); see also PartyLite Worldwide, 344
NLRB 1342, 1342 fn. 5 (2005) (finding surveillance un-
lawful where managers stood in close proximity to
handbillers); Loudon Steel, Inc., 340 NLRB 307, 313
(2003) (same). To determine whether surveillance is
coercive, the Board looks to such factors as “the duration
of the observation, the employer’s distance from its em-
ployees while observing them, and whether the employer
engaged in other coercive conduct during its observa-
tion.” Aladdin Gaming, 345 NLRB at 586 (citing Sands
Hotel & Casino, San Juan, 306 NLRB 172 (1992), enfd.
sub nom. mem. S.J.P.R., Inc. v. NLRB, 993 F.2d 913
(D.C. Cir. 1993)). Here, it is clear that there was nothing
“routine” about Barnabei’s surveillance of Bradley’s
actions. Barnabei, a high-level manager, remained in
close proximity to Bradley in a nonwork area immediate-
ly after having directed Bradley to stop distributing union
T-shirts. Further, Barnabei stood close enough to Brad-
ley to overhear conversations about the Union between
off-duty employees. Accordingly, we find that
Barnabei’s conduct was objectionable. See Hoschton
Garment Co., 279 NLRB 565, 566 (1986).
Prohibition on Wearing Union Buttons
On November 4, 2009, 5 days before the election, Se-
curity Supervisor John Kovach informed employees be-
fore the start of the graveyard (night) shift that they could
not wear union buttons on their uniforms. Kovach then
asked at least two employees to remove their union but-
tons. As employee Dan Homa was attempting to remove
his button, Kovach approached him and “assisted” him in
the removal of the button; this action was witnessed by at
least three other employees.
The following evening, Human Resources Vice Presi-
dent Barnabei and Supervisor Felix Diax held a preshift
meeting with the graveyard shift employees. Diaz in-
formed the employees that they could wear union buttons
and that Kovach’s asking them to remove the buttons the
previous day had been “a misunderstanding.” Barnabei
testified that he was unsure whether the five employees
who were present when Kovach told employees to re-
move their buttons were at the preshift meeting.
Barnabei also testified in general terms about one-on-one
meetings that took place on the morning of November 5,
2009, regarding the union buttons. Barnabei did not in-
dicate which employees he talked to or what was said.
The hearing officer found that, although Kovach’s No-
vember 4 actions were coercive and violated the Act, the
conduct was not objectionable because the Employer
effectively repudiated the unlawful conduct. We agree
with the hearing officer’s conclusion that Kovach’s ac-
tions were objectionable, but we disagree with his further
finding that the Employer effectively repudiated the con-
duct. In order for a repudiation to be effective, such re-
pudiation must be “timely,” “unambiguous,” “specific in
nature to the coercive conduct,” and “free from other
proscribed illegal conduct.” Passavant Memorial Area
Hospital, 237 NLRB 138, 138 (1978), citing Douglas
Division, 228 NLRB 1016 (1997). Furthermore, there
must be adequate publication of the repudiation to the
employees involved, and the employer must not engage
in any further proscribed conduct after the publication.
Finally, the repudiation or disavowal of coercive conduct
must include an assurance to employees that, going for-
ward, the employer will not interfere with the exercise of
their Section 7 rights. Id. at 138–139.
The record establishes that 24 hours after the employ-
ees were asked to remove their union buttons Supervisor
Diaz apologized to employees and stated that “they could
continue wearing their buttons if they wanted to.” This
statement fails to satisfy all of the requirements set forth
in Passavant. First, the Employer’s attempted repudia-
tion was not sufficiently clear because the Employer did
not admit any wrongdoing, but rather stated that the ear-
lier instruction to remove the buttons was a “misunder-
standing.” See Powelltown Coal Co., 354 NLRB 419,
422 (2009), incorporated by reference in Powelltown
Coal Co., 355 NLRB 407 (2010) (finding unlawful con-
duct was not repudiated by document that refers to clear-
ing up “confusion”); Holly Farms Corp., 311 NLRB 273,
274 (1993) (finding that repudiation did not negate the
coercive effect of an unlawful unilateral change where
the employer did not admit to wrongdoing and the repu-
diation did not occur in an atmosphere free from other
coercive conduct), enfd. 48 F.3d 1360 (4th Cir. 1995),
affd. on other grounds 517 U.S. 392 (1996). Second, the
Employer’s statement did not include an assurance that
the Employer would not interfere with employee rights in
RIVERS CASINO 1153
the future. See Bell Halter, Inc., 276 NLRB 1208, 1213–
1214 (1985). Accordingly, we find that the objectionable
conduct was not effectively repudiated.
Grant of Extra Break on Election Day
On election day, voting took place from 7 to 9 a.m.
and from 3 to 5 p.m. In Objections 16–18, the Petitioner
alleges that the Employer engaged in objectionable con-
duct by granting some employee-voters an extra break
that day. It is undisputed that on election day when the
polls opened at 7 a.m., Supervisor Diaz told the approx-
imately 12 to 15 employees working the graveyard shift
(from 12 to 8 a.m.) that they could take an additional
break for a short period for any purpose. Each of the
employees working the graveyard shift took advantage of
the extra break. The extra time off was not offered to
day-shift employees working during the 3 to 5 p.m. vot-
ing period, however, because by 7:30 a.m., Diaz was
informed that employees were supposed to vote during
their regularly scheduled break.3
The hearing officer found that while “the extra benefit
of time off was conferred on approximately 15 percent of
the eligible security personnel,” the benefit was small
and not objectionable as it “appears unlikely that the in-
cident would interfere with the [employees’] freedom of
choice.” We disagree.
We find that, although the extra break was character-
ized by the Petitioner as a “grant of benefit,” this action
by the Employer was not an ordinary grant of benefit.
First, it was granted on election day for the clear purpose
of permitting employees to vote during the extra break.
Second, the Employer’s action was in direct contraven-
tion of the ground rules agreed to by the parties to the
election.4
The Employer’s conduct raises concerns under both
grant of benefit precedent and prior decisions concerning
conduct that creates the impression that a party controls
aspects of the election process. See Alco Iron & Metal
Co., 269 NLRB 590, 591–592 (1984). But whether the
conduct is characterized as a grant of benefit or as an

3 Although there is no direct evidence of the Employer’s motive, the
fact that only one group of eligible voters was given the extra break
raises concerns that the change in working conditions on election day
might have been designed to make it easier for only those employees
whom the Employer believed were opposed to union representation to
vote. In fact, the hearing officer stated, “[s]ince the language describ-
ing the voting schedule was closely monitored by all parties, and the
final schedule was posted days before the election, Diaz’s offer of extra
time off because he was under a mistaken belief about a release sched-
ule is suspect.”
4 The Employer proposed a release schedule that would have al-
lowed employees to vote during their worktimes, but that schedule was
not approved by the parties. The parties’ final agreement on the voting
schedule provided that employees could vote “during working times if
on a regularly scheduled break.”
infringement on the neutrality of the election process,
there was an impermissible impact on employee free
choice.
The purpose of a ground rules agreement such as the
one entered into in this case is to insure that all parties
agree about the details of the election, including whether
and how employees will be released from work to vote.
Without the agreement of all parties, neither the employ-
er nor the union is permitted to control any aspect of the
election process or convey the impression to eligible em-
ployees that it does so.5 Here, where the parties had en-
tered into a well-publicized agreement specifying that
employees were to vote during their breaktime, the
graveyard-shift employees would have understood that
they had been given an extra break on election day solely
as a matter of the Employer’s beneficence and discretion
and that the break was intended to facilitate their voting.
Thus, right before the employees cast their ballots, the
Employer’s action unfairly signaled its authority to grant
and thus to take away benefits (what the Supreme Court
has called “the fist inside the velvet glove,” NLRB v. Ex-
change Parts Co., 375 U.S. 405, 409 (1964)), and sug-
gested to the employees that the Employer controlled
aspects of the election process, i.e., when they were per-
mitted to vote.6 Accordingly, we find that the Employ-
er’s actions constituted objectionable conduct.
2. Impact of objectionable conduct on the election
Having found that the Employer engaged in certain ob-
jectionable conduct, we must now determine whether the
conduct warrants setting aside the election. In resolving
the question of whether party misconduct is de minimis
or whether it has the tendency to interfere with the em-
ployee’s freedom of choice, we consider several factors:
the number of incidents, their severity, the extent of dis-
semination, the size of the unit, the temporal proximity
of the misconduct to the election, the closeness of the
final vote, and other relevant factors. See Cedars-Sinai

5 Thus, the Board has overturned election results when a Board agent
delegated the task of translating voting instructions to a union observer,
see Alco Iron, supra at 591–592, and the D.C. Circuit has reversed the
Board when it declined to do the same when a Board agent sent union
representatives into the workplace to release employees to vote, see
North of Market Senior Services v. NLRB, 204 F.3d 1163, 1168 (D.C.
Cir. 2000).
6 The fact that the Employer’s conduct took place on election day,
indeed, just before many if not all of the graveyard shift employees cast
their ballots is also grounds for heightened scrutiny under Board prece-
dent. See, e.g., Kalin Construction Co., 321 NLRB 649, 651 (1996)
(“conduct that is otherwise unobjectionable can disturb laboratory
conditions if it occurs during, or immediately before, the election”);
Milchem, Inc., 170 NLRB 362, 362 (1968) (“final minutes before an
employee casts his vote should be his own, as free from interference as
possible”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1154
Medical Center, 342 NLRB 596, 597 (2004); see also
Caron International, 246 NLRB 1120 (1979).
To begin, we find that the Employer engaged in four
instances of objectionable conduct: it twice impermissi-
bly restricted employees’ right to engage in union activi-
ty at the workplace (distribution of T-shirts and prohibi-
tion on union buttons), it surveilled union activity, and it
impermissibly granted a benefit to employees on the day
of the election. Contrary to the hearing officer, we find
that the objectionable conduct was more than minimal.
In considering the severity of the Employer’s conduct,
we find that the Employer engaged in conduct that im-
permissibly interfered with both the dissemination of
campaign material and the free flow of information dur-
ing the critical period. The Employer engaged in addi-
tional misconduct on the day of election. Accordingly,
we find that the Employer’s objectionable conduct was
sufficiently serious to warrant setting aside the results of
the election.
In reaching this conclusion, we have considered that
the number of employees who were affected by the Em-
ployer’s objectionable conduct is sufficient to require
setting aside the results of the election given the 3-vote
margin of victory.
Accordingly, we find that the hearing officer erred in
finding that the Employer’s conduct was de minimis and
in overruling the Petitioner’s objections. We sustain the
Petitioner’s objections numbered 7, 8, 9, 14, and 16–18,
and direct that a second election be held.
[Direction of Second Election omitted from publica-
tion.]

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