MGM Grand Hotel, LLC d/b/a MGM Grand

National Labor Relations Board - Administrative Judge Opinions

Sep 3, 2014

28-CA-119372 (N.L.R.B. Sep. 3, 2014)

JD(NY)–36-14
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
MGM GRAND HOTEL, LLC
d/b/a MGM GRAND
and Case No. 28-CA-119372
CLAYTON SIMMONS, An Individual
Larry Smith, Esq. and Nathan Higley, Esq., Counsel for the General Counsel.
Paul Trimmer, Esq. and Ashley Eddy, Esq., Jackson Lewis LLP, Counsel for the Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on July 15
and 16, 2014 in Las Vegas, Nevada. The Complaint, which issued on March 31, 2014 and was
based upon an unfair labor practice charge that was filed on December 19, 20131 by Clayton
Simmons, an individual, alleges that on about December 12 MGM Grand Hotel LLC, d/b/a MGM
Grand, herein called Respondent, by Tiffany Rodzach, its Director of Food and Beverage and a
supervisor and agent of the Respondent, denied the request of Simmons to be represented at
an interview by Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226
and Bartenders Union Local 156, affiliated with UNITE HERE, herein called the Union, his
collective bargaining representative, even though he had reasonable cause to believe that the
interview would result in disciplinary action being taken against him, and she conducted the
interview, and on about December 13 Respondent suspended Simmons pending an
investigation of him. It is alleged that by these activities, the Respondent violated Section
8(a)(1)(3) of the Act. It is further alleged that at the same meeting on December 12 the
Respondent, by James Makridis, its Chef, threatened its employees with unspecified reprisals
because they engaged in union activities by asking to be represented by a Union representative
at the meeting.
I. Jurisdiction and Labor Organization Status
Respondent admits, and I find, that it has been an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act, and that the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
II. The Facts
MGM Grand, one of the largest hotels in the world with almost 7,000 rooms, has a
casino that is an important income source. In that regard, the Respondent has “high end” guests
in a number of categories, such as “VIP” and “Noir,” who are often “Comped” by the hotel due to
their “high roller” status. Simmons is employed by the Respondent as a room service order taker
in the food and beverage department. He works in an open office about ten feet by twenty feet,

1 Unless stated otherwise, all dates referred to herein relate to the year 2013.
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containing about four to eight desks, although Simmons testified that there are only three or four
order takers on each shift. The desks are close enough to each other that guests on the phone
with order takers can hear other order takers speaking. The genesis of this case was a
telephone order that Simmons received from the wife of a VIP guest on December 8, which
resulted in a disciplinary write up, a suspension pending investigation, and a suspension.
A. December 8 Telephone Calls
On December 8 Simmons was working the 4:00 P.M. to midnight shift when he received
a call from a Ms. Ruiz, who placed an order with him. He checked the computer program that
they employ, OPERA, and saw that the room was in her husband’s name and that there was no
specific authorization for her to charge her purchase to the room. After she had given him her
order, he asked her what her form of payment was going to be and she replied that she was
going to charge it to the room. He testified that he “…politely informed her that she was not
listed to the room and that if she would like to …discuss this matter with the front desk, that I
would transfer her over and that they would be more than willing to update her status.” Ms. Ruiz
became very hostile to him, and asked him questions that he could not answer because he
could not make the changes that she wanted. He apologized to her, told her that if her husband
was in the room that he could sign for it, but “…she wasn’t really too happy with that” and he
transferred her call to the front desk, at which time, “…Jay, the front desk supervisor, told me to
go ahead and release the call, because I did explain the situation to him, that this guest was
trying to sign to the room.” He testified that about thirty minutes later, he spoke to Jay, who told
him that he had done the right thing and, in addition, Jay inserted a note in OPERA (a “trade
line”) saying, “…he…spoke to me…that I told her the right thing.”
Shortly thereafter, Simmons told the other two other order takers in the room, Carolyn
and Mary, that he had just spoken to Jay from the front desk and if they received a call from
Room 10142, the guest would have to use a credit card or pay cash, unless her husband was in
the room to sign for it. Carolyn then gestured to him and he looked on her computer screen and
saw that she was speaking to the guest in Room 10142. At the conclusion of the call, Carolyn
told him that Ms. Ruiz had asked for his name.
There was testimony about the hotel rules regarding room charges. Jason Galvez, the
assistant manager of in room dining, testified that when someone checks into the hotel, an entry
is made in OPERA stating who is authorized to charge orders to the room, and only the front
desk can change that status. In that situation, the room service order taker can transfer the call
to the front desk or can call the front desk directly to correct the situation. Simmons testified that
the order takers do not know whether the guest placing the order is the typical guest or is a VIP
or comped guest; if the person calling in the order is not authorized to charge the order to the
room:
We politely tell them that if they would like to pay cash for it, they can do so at the time of
delivery. If they would like to use a different method of payment, which is credit card, we
can take a credit card over the phone, or if the person that is assigned to the room is in
the room, they can sign for it.
He testified that this is true whether the guest is a VIP guest or not. He was asked whether this
policy has changed in any way since he has been an order taker:
A No. As far as what I know, no.
Q And you’ve received no written guidance that would suggest otherwise? That’s your
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testimony?
A Nothing that I’m aware of, no.
Respondent introduced into evidence a memo sent by food service management to room
service order takers dated February 16 and entitled: “Subject: VIP Guest List.” It states:
As of February 16, 2013 an updated “VIP Guest List” will be distributed to all order
takers by 5pm each day, once the new list is distributed, the list from the day before will
be discarded by the Order takers. All order takers must have the current list with them at
all times during their shift.
As the guest call [sic] Room Service to place an order, the Order takers are to look
through the VIP List, if the guest is on the VIP List, stars will be entered on the ticket.
This assures that the cooks as well as the servers know the guest is a VIP.
If the guest is on the list and showing “Cash Only” the Order taker is to take the order
and bill it to “Manual Room Charge”. The Order taker will not question the guest, the
order taker will not transfer the guest to the Front desk. After the order is taken, the
Order taker is to notify the Manager on Duty. [Emphasis supplied]
Necessary discipline action will be enforced if the above procedure is not followed.
When Simmons was shown this memo he testified, “I don’t believe I was there on the date at
issue.” However the memo has his signature with the note, “I don’t agree with this, but will sign.”
He then testified that he did sign it, but that the memo was subsequently overturned, but he
could not state by whom, or when. He was then shown a memo accompanying a notice of a
meeting for Order Takers on March 22, stating:
In 2013 In Room Dining had an incident where the CEO of a large convention group was
denied room service because he did not have a credit card on file to secure his room for
incidental charges. He didn’t have a credit card on file because he was a comp
reservation due to the large piece of business his company contracted with MGM Grand.
As a result of the incident, In Room Dining Management changed their policies on how
to handle such situations moving forward from 3/22/2013. Order takers were instructed
to not police the situation. They should take the guest order. After they are off the phone
with the guest they should alert the manager that there is not [sic] credit card securing
the room or that the person placing the order may not be the person the room is
registered to. The manager will then make a decision on how to proceed and investigate
further as they deem necessary.
Attached is a copy of the memo that was posted indicating the required scheduled times
of those meetings.
The attached stated that the meeting subject was “To Openly Discuss Customer Service
Concerns and Menu Issues.” Attendance was mandatory for four named employees, including
Simmons.
B. December 12 Meeting
On December 12, shortly before midnight, Simmons was asked to attend a meeting with
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Rodzach, Galvez, who became the assistant manager of in-room dining in about September,
and Makridis,” and there are major credibility issues as to what occurred at this meeting.
Simmons testified that while he was answering phone orders on that evening, Rodzach tapped
on the window of the order takers’ room and said that she would like to see him in her office,
which is adjacent to the order takers’ room, and that she had tried to get “a regular shop
steward, but it being that late at night, she found…a bar steward, which is…equivalent.” When
he completed his phone orders, he walked into the manager’s office and Galvez and Makridis
were there at that time. About five minutes later, Rodzach came into the room while holding a
paper in her hand. While “slapping her finger on the paper” that she was holding, she told
Simmons that he was rude, discourteous, and was not “the room service police,” and that he
was unprofessional in the performance of his job. “She at one point asked me during her
slapping of the paper whether I did it. She asked me if I was rude or even if I was discourteous.
She informed me that the guest complaint was really quite serious. And I let her go for a while. It
seemed… like four or five minutes without any type interruptions.” When she stopped talking,
she handed the paper to Galvez, who was sitting close to Simmons, and Simmons asked if he
could see it. “Jason placed the write-up---or paper in my hand and I read approximately two
lines or… the first couple of sentences…” and put the paper on the desk.2 Rodzach began
saying that the guest complaint was that he was rude and discourteous and Simmons tried to
say something, but Rodzach kept talking. On the third occasion he attempted to interrupt her by
saying , “excuse me,” he raised his voice “just a tad bit more” in order to get their attention and
said that he did not want to talk any further about the incident without his shop steward. When
they “pretended like they did not hear me,” he repeated it, and said, “Where is my shop
steward…or my bar steward that you told me would be coming?” Rodzach did not respond to
his request, and repeated that he was rude, discourteous and was not the room service police,
and asked, “Weren’t you here when we told you about the cash customers and what you’re
supposed to do? We’ve been through this before. I want to know, man, did you do it…were you
rude to the guest?” Simmons responded that he was not going to discuss the incident further
and was going to leave the room. He stood up and Makridis said that if he left the room, “then I
was going to be sent home,” so he sat back down. Rodzach repeated that he was rude and
unprofessional and he again asked for the shop steward that he had promised to provide, and
that he was “…ending this meeting in its whole entirety and I am walking out of this room.” As
he was leaving the office, Rodzach said that she didn’t want him back on the phones, and he
replied that was fine with him as he was going to security, and he left the office and went to
Respondent’s security department, where he completed a “voluntary statement” of what
occurred in the office. He testified that he did not use any profanity while in the manager’s office
and raised his voice only to get Rodzach’s attention.

2 In the affidavit that Simmons gave to the Board, he stated that Rodzach handed Galvez
“the disciplinary write-up,” and that Galvez placed “the write-up” in his hand,” but insisted that he
didn’t know what it was other than “just a piece of paper.” In a statement that Simmons prepared
for the security department, he wrote: “She knows better not to talk about disciplinary action
without my union steward or bar steward.” This statement also states that at this meeting,
Rodzach gave him “…a written- which it should have been a verbal.” When asked how he knew
that if he never saw the discipline, he testified that “he just assumed” that it was a written
warning. Another affidavit of his states that it was felt that he “…was out of line because I stated
I was not going to sign any disciplinary action;” in a later sentence, he states that he told
Rodzach that he was not going “…to sign the disciplinary action” and “that we should not have
been discussing the disciplinary action at all without a shop steward present.” Further, Tanara
Pastore, employed by the Respondent as a cocktail server and a Union steward, testified that
Simmons told her “…that they called him in the office to issue him discipline…” Yet, he
continued to deny that he saw the write up on December 12.
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Simmons was shown a document entitled: “Counseling Notice” which states that it was a
written warning and was prepared on December 9. It states that Simmons was extremely rude
to a VIP guest, who was very furious when she called the front desk manager to complain about
him. The Notice also states that any further incidents of rude and inconsiderate behavior will
lead to disciplinary action up to termination, and that Simmons “refused to sign and refused
beverage shop steward.” He testified that this is not the document that Galvez handed him at
the meeting on December 12: “…it was something similar, but not this form…it was more or less
of a summary…it didn’t have anything on the top and it didn’t have anything on the bottom.”
Rodzach, who left the Respondent’s employ in February 2014, testified that after
receiving customer complaints about employees, she asks her assistants to investigate the
matter and to notify her of the facts: “If its severe enough…we do a write up.” On December 8
she received an email from Michelle Suson, a VIP manager, to Martha Houston, an assistant
manager, describing the complaint by Mr. Ruiz about how “extremely rude” Simmons was to his
wife. She asked Houston and her other assistant manager Doreen Al-Turkmani to speak to
Simmons and learn what occurred. They reported to her that the guest was upset by what had
occurred, and Rodzach determined that due to the severity of the guest complaint, discipline
was warranted and on December 9 she prepared the Counseling Notice that was to be given to
Simmons on December 12. Earlier that evening she asked Makridis to be present at the
meeting with Simmons to act as a witness, and she also asked Galvez to be present. He was
the newest assistant manager and she wanted him there for training purposes, “to witness the
process.” She asked Simmons to come in and when he came into the office, Galvez was
reading over the Counseling Notice. When Simmons walked in, she told him that she was going
to be issuing him a discipline pertaining to a guest complaint that occurred a few days earlier.
She then told him that unfortunately she did not have a culinary department steward available,
but a beverage steward was available and she could get him by making a phone call, but he did
not respond to this offer. Instead, he “ripped” the paper out of Galvez’ hand and began yelling,” I
don’t have to take this. You’re not writing me up. This is all wrong. I spoke to Doreen Al-
Turkmani and Houston about it.” She didn’t ask him any questions, because, “I didn’t have a
chance.” Simmons said that the meeting was over and he was walking out of the meeting.
Makridis then told him that if he walked out of the door he was walking off the job. She “tried to
defuse the situation” by telling Simmons that since he was upset, he might want to take an early
out for the shift. At that point, Simmons left the office. She immediately prepared an email to her
superior telling him what occurred at the meeting and the following day she discussed it with
him and decided to issue Simmons a Suspension Pending Investigation which issued, and was
effective, December 13 and, on that date, she met with Simmons, Pastore and another steward
and read the SPI to him and told him that it was due to his actions on the prior evening.
Galvez testified that on December 12 he was still a manager in training and attended the
meeting together with Rodzach and Makridis. Earlier that evening Rodzach asked him if he had
ever seen a write up before and he answered, only when he was in the military. She asked him
if he would like to attend the meeting later that evening and he said that he would like to learn
how it takes place. The meeting began at about 11:45 that evening. Simmons walked into the
room with Rodzach right behind him. When they entered the room Galvez was holding the write
up that Rodzach had written. After entering the room, Rodzach told Simmons that a culinary
steward was not available, but that she could get a beverage steward, but Simmons did not
respond to this statement. He said that he was being threatened and harassed and was not
properly represented at the meeting, but he never asked for a steward to represent him at the
meeting and Rodzach never asked him any questions. Simmons was yelling and speaking in a
loud voice saying that this is not right, and “this is bullshit.” Rodzach asked, “Can I say
something?” but Simmons interrupted her. Makridis interrupted Simmons and said, “Clayton,
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give her a chance to speak,” but he kept talking. Simmons continued to yell and talk loudly,
being rude and disrespectful. Simmons “snatched” the write up out of his hand while he was
reading it and continued to yell or speak loudly. As Simmons started walking toward the door to
leave the room, Rodzach told him that if he walked out of the meeting, he would be sent home
and Makridis said that if he walked out the door he was walking off the job. Before leaving the
office, he said that he was going to the Security Department to file a report of harassment and
threats committed by Rodzach and Makridis.
Makridis testified that Rodzach asked him to attend the meeting on December 12 to
witness her giving Simmons a written warning for being rude to a guest. Rodzach began the
meeting by telling Simmons that she was going to issue him a warning for being rude and
discourteous to a guest and that while she did not have available a steward in the food
department, she could get one from the beverage department, but he never responded to this
offer. Instead, he grabbed the warning out of Galvez’ hand and began yelling at them. At that
time, Makridis said, “Please sit down and give Tiffany a chance to explain to you what’s going
on.” Simmons then said, “This is bullshit and I’m leaving” and said that he would have them all
fired. Makridis told him that “if he walks out and leaves, he’s walking off his job.”3 Simmons then
said, “I’m leaving and I’m going to security.” He characterized Simmons actions at this meeting
as insubordinate, rude and obnoxious.
Maureen Keefe-Wiseman is employed by the Respondent as a human resources
business partner. One aspect of her job is investigations involving, at the time, the culinary,
catering and room service departments. On December 16, Leann Wilson, also a human
resources business partner, told her that Rodzach told her of the December 12 incident
involving Simmons, who was suspended pending investigation as a result of the incident. As
part of her investigation she interviewed Rodzach who told her of the guest complaint that lead
to the meeting, and what occurred at the December 12 meeting. She was also given statements
about the December 12 meeting that were prepared by Makridis and Galvez, as well as the SPI
that was given to Simmons. She then arranged a “due process meeting” on December 17,
which was attended by Simmons, Pastore, Wilson and herself. He denied that he did anything
wrong in his conversation with Ms. Ruiz and that Rodzach created a “hostile environment” in the
December 12 meeting and that he was not being rude. After this meeting she investigated a
claim made by Simmons that “Jay” or “J”, a male front desk manager, had written a note in
OPERA that said that he acted properly in his conversation with Ms. Ruiz. She investigated the
employees at the front desk and found that there was no employee named Jay, and that the
only employee with the initial J was a woman, Jennifer Davis, of the concierge VIP lounge,
which is the front desk where the VIP customers check in. She also felt that in order to
investigate the December 8 situation fully, she should interview Caroline Kusiak, the order taker
who spoke to Ms. Ruiz in the subsequent conversation that evening. In notes that Wiseman
took at the meeting with Kusiak on December 20, she wrote that Kusiak said that Ms. Ruiz
overheard what Simmons said while she was on the phone with her, and that she was upset
and said that she would call the front desk, but that Simmons’ demeanor was normal, not
negative. She was also asked:
Do you recall a meeting back in March when we discussed that order takers are not the
police and when this situation comes up that you should have a manager assist?

3 Section 18.01(a) of the contract between the Employer and the Union provides that the
Employer may impose an immediate suspension or discharge upon an employee who walks off
the job during a shift.
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CK: Yes. We were told to basically just let everyone charge to the room they are calling
from.
MKW: Does Clayton do this?
CK: Clayton gets very technical. He says it is credit card fraud if the person calling isn’t
registered to the room. He is still a stickler to how we used to do it.
A few minutes after this meeting, Kusiak came to Wiseman’s office and told her that she felt like
a “snitch,” but wanted to return to tell her what had occurred on December 8. The guest told her
that Simmons was very rude to her. In addition, after the guest complaint was entered into the
OPERA system, Simmons made an addition to these comments to make it seem that he did not
do anything wrong. When Wiseman investigated this allegation, she found that there was an
entry about Ms. Ruiz’ complaint about Simmons, and that on December 8 at 5:31 P.M.,
Simmons made a “comment update” stating: “clayton from room service was not rude. He just
explained the policy and Mrs. Ruiz didn’t like the explanation given.” Wiseman then spoke to
Suson, who had spoken to Ms. Ruiz about her complaint about Simmons and logged it in
OPERA, which is customary upon receiving a customer complaint. Suson told Wiseman that
she received a call from Simmons who was upset about the comments about him in OPERA
and that she did not write the comments that were added (“Clayton… was not rude…).
On December 26, Wiseman held another meeting with Simmons with her new boss,
Monica Dorsey, and Pastore. She testified that Dorsey asked Simmons if he had been denied a
shop steward at the December 12 meeting, and he said no, he had not been refused one. He
was asked if he had edited the OPERA notes, and “he was not forthcoming in telling us he had
edited the notes,” although he eventually admitted that he did enter that note. In addition, he did
not allege that he had been interrogated, or asked questions by, Rodzach at the December 12
meeting. After this meeting, she met with Dorsey to determine what discipline, if any, was
appropriate for Simmons, and they determined that he would be issued a five day suspension
with an opportunity to write a plan on how he could be more successful as an employee. She
met with him on January 1, 2014, with a steward present and on January 3, he returned and
they reviewed his plan. He returned to work on January 3, 2014.
III. Analysis
There are major credibility issues regarding the events of December 8, December 12
but, in this situation, I find that this determination is not a difficult one. Rodzach, Makridis and
Galvez all appeared to be credible witnesses testifying to the events of the evening of
December 12 as best they could recollect it. It is not surprising that their testimony did not match
perfectly. The meeting took place seven months earlier and it was a turbulent meeting, which
may have contributed to the differences in their testimony. Additionally, I can see no reason why
the Respondent would be “out to get” Simmons. The food and beverage employees at the hotel
were represented by the Union and the testimony establishes that the Respondent was careful
in following the terms of the contract in dealing with its unionized employees. Counsel for the
General Counsel, in his opening statement, argued that the fact that Respondent had three
representatives at the meeting was further evidence that it was an investigatory meeting.
However, the testimony of Galvez and Rodzach clearly established that Galvez was a
supervisor in training on that day, and was asked to attend in order to experience such an
interview.
On the other hand, I found Simmons to be an untrustworthy witness whose testimony
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had many inconsistencies. In asserting that he handled the call from Ms. Ruiz properly,
Simmons testified that the policy regarding VIP guests had not changed and that he had never
received training otherwise. When shown the February 16 memo to food service order takers
regarding a change in the procedure for VIP guests, he testified that he didn’t believe that he
was there for the meeting. When shown that he had attended the meeting, but did not agree
with the new policy, he testified that he did attend, but that the new policy was subsequently
overturned, although he could not specify when, and by whom. Additionally, Simmons testified
that he was never shown, or given, the written warning on December 12 (which I do not credit),
but he used the word “disciplinary,” “discipline” or “write up” numerous times in his affidavits, his
testimony, and his conversation with Pastore to describe the December 12 meeting. Finally, his
testimony that “Jay” a front desk manager exonerated him from any wrongdoing, while,
apparently, Jay does not exist, and his insertion in OPERA that he did nothing wrong further
illustrates that his testimony is not trustworthy.
Based upon the credited testimony of Rodzach, Galvez and Makridis, I find that the
Counseling Notice that Rodzach gave Simmons on December 12 was written on December 9.
When Simmons came into the office she told him that she was issuing him a discipline for being
rude to a guest on December 8, but that although she did not have a culinary department
steward available, a beverage steward was available and could be contacted by phone. He did
not respond to this offer, but took the write up out of Galvez’ hand and yelled, “I don’t have to
take this. This is wrong. This is bullshit,” and threatened that he would have their jobs. He also
said that the meeting was over and he was leaving. Rodzach said that he might want to take an
early out if he wanted to leave, and Makridis told him that if he left, he was walking off the job.
He then said that he was going to the Security Department and left the office.
The law is clear that employees are entitled to Weingarten4 representation in either
“investigatory” or “disciplinary” interviews except for “those conducted for the exclusive purpose
of notifying an employee of previously determined disciplinary action.” Baton Rouge Water
Works Company, 246 NLRB 995, 997 (1979). However, even if an employer meets with an
employee to inform him/her of previously determined disciplinary action, if the employer then
proceeds to question the employee in order to bolster its decision, the right to representation
applies. Titanium Metals Corporation, 340 NLRB 766, 774 (2003).
As the Counseling Notice was prepared on December 9, and as I credit Rodzach,
Galvez and Makridis, I find that the purpose of the meeting was simply to inform Simmons of the
discipline. Counsel for the General Counsel alleges that Rodzach attempted to discuss the
December 8 situation with Simmons, and he was therefore entitled to Union representation
under Titanium Metals, supra. I disagree. Although he might have been entitled to
representation if she had questioned him about the event, the credited evidence establishes that
because of Simmons’ actions at the meeting, she never had an opportunity to question him.
Further, as I have credited Respondent’s witnesses, I find that at the beginning of the meeting,
Rodzach told Simmons that while she did not have a culinary steward available, she could
obtain a beverage steward for the meeting, but he never responded. Therefore, even though I
have found that Simmons was not entitled to a representative at this meeting, as it was simply
to notify him of the discipline, one was offered to him. I therefore recommend that this allegation
be dismissed.
It is next alleged that the Respondent violated Section 8(a)(1) of the Act when Makridis
told Simmons that if he left the office he was walking off his job. Without question, a threat to an

4 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
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employee in retaliation for engaging in protected concerted activities, violates Section 8(a)(1) of
the Act. However, in order to establish such a violation, there must be a threat as well as
protected concerted activities. As I have found that Simmons never engaged in protected
concerted activities at the December 12 meeting, even if Makridis’ statement can be construed
to be a threat, which I need not decide, I recommend that this allegation be dismissed.
The final allegation of the Complaint is that on December 13, the Respondent
suspended Simmons pending its investigation of him, in violation of Section 8(a)(1)(3) of the
Act. 5 This is to be determined under the test set forth in Wright Line, 251 NLRB 1083 (1980),
whereby Counsel for the General Counsel must make a prima facie showing sufficient to
support the inference that the employee’s protected conduct was a “motivating factor” in the
Respondent’s decision. Based upon the credited facts herein, there was no protected conduct
and even if there were, his behavior at the December 12 meeting justified the SPI that was
given to him. I therefore recommend that this allegation, as well, be dismissed.
Conclusions of Law
1. Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Union has been a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent did not violate Section 8(a)(1)(3) of the Act as alleged in the
Complaint.
On these findings of fact, conclusions of law and based on the entire record, I hereby
issue the following recommended6
ORDER
It is recommended that the Complaint be dismissed in its entirety.
Dated, Washington, D.C. September 3, 2014
_______________________________
Joel P. Biblowitz
Administrative Law Judge

5 There is no allegation that Respondent’s five day suspension given to Simmons on
January 1, 2013, violated the Act.
6 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.