Palms Hotel & Casino

National Labor Relations Board - Board Decisions

Aug 15, 2005

344 N.L.R.B. 1363 (N.L.R.B. 2005)

PALMS HOTEL & CASINO
344 NLRB No. 159
1363
Fiesta Hotel Corporation d/b/a Palms Hotel and Ca-
sino and Local Joint Executive Board of Las Ve-
gas, Culinary Workers Union, Local 226 and
Bartenders Union, Local 165, AFL–CIO, a/w
Hotel Employees and Restaurant Employees In-
ternational Union, AFL–CIO. Case 28–CA–
17853
August 15, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 30, 2003, Administrative Law Judge
Burton Litvack issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.1
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) of the Act by interrogating em-
ployee Martin Perez, impliedly threatening him with dis-
charge, telling employees that they were prohibited from
discussing their working conditions,2 and promulgating
and maintaining in effect a rule prohibiting employees
from loitering on company premises before or after
working hours.3 We reverse, however, the judge’s find-

1 The judge dismissed complaint allegations that the Respondent
unlawfully changed employee Carlos Interiano’s days off schedule and
laid him off. The Respondent excepts to the judge’s subsidiary findings
that Interiano engaged in concerted protected activities and that the
General Counsel presented a prima facie case of discrimination against
Interiano. No party excepts to the dismissals of the allegations con-
cerning Interiano’s days off schedule and layoff. Therefore, we find it
unnecessary to pass on the Respondent’s exceptions concerning the
judge’s subsidiary findings and related legal analysis.
There are no exceptions regarding any other complaint allegation
that the judge dismissed.
2 We agree with the judge that Supervisor Juan Medina’s statement
to a group of employees that they should “stop it” when they were
discussing complaints about overtime pay and lack of breaks violated
Sec. 8(a)(1). However, we do not agree with the judge’s characteriza-
tion of Medina’s statement as promulgation of a rule. We find, rather,
that Medina’s statement was simply an unlawful order. We shall revise
the judge’s Order accordingly.
3 See, e.g., Lutheran Heritage Village-Livonia, 343 NLRB No. 75 fn.
16 (2004). Member Schaumber notes that the Board’s holding here
does not suggest that a more narrowly tailored rule with respect to
loitering might not survive scrutiny.
Contrary to his colleagues, Chairman Battista would find that the
Respondent’s rule regarding loitering is lawful. Id. at fn. 4. The rule
does not explicitly forbid Sec. 7 activity. Further, it was not promul-
gated in response to Sec. 7 activity, nor has it been applied to such
activity. Finally, employees do not ordinarily, or reasonably, refer to
ings that the Respondent violated Section 8(a)(3) of the
Act by issuing a warning notice to Perez and by dis-
charging him. We also reverse the judge’s finding that
the Respondent violated Section 8(a)(1) by promulgating
and maintaining a rule prohibiting employees from en-
gaging in “conduct which is or has the effect of being
injurious, offensive, threatening, intimidating, coercing,
or interfering with” other employees.
1. Regarding the 8(a)(3) allegations, we find, contrary
to the judge, that the Respondent established that it
would have issued the warning notice to Perez and dis-
charged him even in the absence of his union activity.
The Respondent issued the warning notice to Perez after
he engaged in misconduct unrelated to union activity and
subsequently discharged him along with 30 to 40 other
employees as part of a general staff reduction.
During the fall of 2001, the Respondent hired most of
the approximately 2000 employees needed to staff its
new hotel and casino, which opened on November 17,
2001. All the newly-hired employees were probationary.
Andrew Pike, who was in charge of the Little Buddha
Restaurant in the hotel during that period, gave uncon-
troverted testimony that, when a new restaurant is
opened, it is normally staffed 25 to 30 percent “heavy”
and that, after the employees become proficient at their
jobs, it is not necessary to have the “extra hands.”
Perez, an experienced cook and a union member, was
hired by Harris Okashige, the Respondent’s executive
chef, and began working at the Respondent’s Fantasy
Market Buffet on November 27. After starting work,
Perez received a letter from the Union about an upcom-
ing organizing rally. He had three conversations with
coworkers encouraging them to attend the rally. Perez
carried a sign at the rally in front of the Respondent’s
facility on December 3, which about 500 people at-
tended. Three of the Respondent’s security guards ob-
served the rally.
Perez subsequently engaged in several incidents of
misconduct or poor performance during his probationary
period:
(1) In November, Okashige noticed empty pans and
pans crusted over with food at Perez’ buffet station and
told Perez that they were not up to the Respondent’s
standards. Perez responded that he was waiting for the
pans to be totally empty before changing them. Okashige
repeated that the pans were not up to the Respondent’s
standards. Perez stated that he would change the pans.
(2) Sous chef James Kinney, a supervisor, intervened
in an argument between Perez and fellow cook Beverly

their organizing activities as “loitering.” Accordingly, Chairman Bat-
tista would not find that the rule violates Sec. 8(a)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1364
Egbert. Kinney called them into the buffet office and
told Perez that they had been taught how to cook Leba-
nese food by a Lebanese chef and that Perez could not
change recipes without first speaking to Okashige. At
hearing, Perez first denied refusing to follow Kinney’s
directions about recipes but then admitted that he had
done so on one occasion.
(3) In a separate incident, Supervisor Kinney told
Perez that he was slicing meat improperly. According to
Egbert, the Respondent could not use the meat because
Perez had sliced it too thick, so it had to be thrown away.
Cook Richard Morrow and cook’s helper Ernestina
Guerrero similarly testified that Perez was carving meat
the wrong way and that room chef Michael Kingston,
Perez’ supervisor, showed him the proper way. How-
ever, when Kingston walked away, Perez stated that he
had been in the business a long time and knew how to do
things, and he continued to carve the meat improperly.
The judge credited Egbert, Morrow, and Guerrero, find-
ing them all to be candid and veracious witnesses.
(4) On about December 1, Perez was assigned to assist
Egbert at the Lebanese buffet station. Perez initially fol-
lowed Egbert’s directions but subsequently “started
changing things” and telling her how he thought the food
should be cooked. He refused to follow her direction to
remove a chicken from the oven and “started to not want
to do anything.” According to Egbert, “He would just
walk around and talk to his friends.” Egbert complained
to Kingston that Perez was not preparing food the way
that the owner required. Kingston told Perez that he
needed to follow the guidelines because that was the way
that the owner wanted it. At the hearing, Perez admitted
that he had refused to follow Egbert’s directions.
(5) While working with Morrow, Perez repeatedly
called Morrow derogatory names under his breath in
Spanish, which were translated as “snitch, bitch, a vari-
ant of gay . . . or whore.”4 According to Morrow, who
the judge credited, Perez uttered these epithets numerous
times a day and continued to do so as long as he worked
in the buffet. Morrow was quite upset by Perez’ conduct.
He complained to Kingston that Perez was calling him
names and making his life miserable, and Kingston said
that he would take care of it. However, when Perez’
name-calling did not cease, Morrow complained to Oka-
shige and threatened to quit over Perez’ misconduct.
According to Okashige, he had Perez brought to his of-
fice and spoke to him regarding Morrow’s allegations,
but Perez denied them. At the hearing, however, Perez
admitted that he called Morrow names five times. Perez

4 See judge’s decision, fn. 39.
asserted that he eventually stopped calling Morrow
names.5
During the last week in December, Perez spoke to co-
worker Guerrero about supporting the Union and asked
her for her address and phone number. Guerrero told
Perez to leave her alone, not bother her about the Union
again, and reported him to Kingston. On December 28,
Perez was called to Okashige’s office and questioned by
Okashige and Fred Harmon, the Respondent’s director of
human resources. Harmon asked Perez if he had talked
to his coworkers about the Union. Perez denied doing
so. Harmon said that Perez should not solicit during
worktime but could do so during breaks and lunch.
Harmon added that they did not want the Union and that
the Respondent would be providing improved pay and
benefits. Perez replied that he did not like or want the
Union either. Harmon and Okashige began laughing,
and Okashige said that he did not want to fire Perez be-
cause of his work experience and that they were going to
keep him.6
On Monday morning, December 31, Perez, who had
been diagnosed with bronchitis the prior Friday, decided
when he awoke that he was too ill to work. Perez under-
stood that the Respondent’s policy required employees to
notify their supervisor of any expected absence as soon
as possible and, preferably, no later than 4 hours prior to
their shift. Nevertheless, rather than promptly telephon-
ing Kingston, Perez did not inform the Respondent that
he was too sick to work until he arrived at the start of his
December 31 shift. When provided this last minute in-
formation, Kingston glared angrily at Perez and told him
to go home. Perez returned to work on January 2, 2002,
after obtaining a medical release.
On Monday, January 7, Kingston gave Perez a written
warning, dated December 31, stating that, when he re-
ported for work at 8 a.m. and said he was sick and could
not work, Perez violated rule no. 6 of the team member
guide by “violating the 4 hour call in policy and not giv-
ing management proper notice to replace him for the day,
hurting business by not being set up on time.” The call-
in policy, set forth in the Respondent’s team member
guide, requires employees to “personally notify your
supervisor or a Member of your department of your ex-

5 Perez denied ever being questioned by anyone “regarding the bad
language.” However, he never denied that Okashige spoke to him
regarding Morrow. Perez testified that he would have ceased using
epithets against Morrow “because I would have gotten tired of telling
him.” The judge cited this testimony as an example of assertions by
Perez that “defied belief.” See judge’s decision at fn. 56 and accompa-
nying text.
6 On the basis of this meeting, the judge found that the Respondent
unlawfully interrogated Perez and impliedly threatened him with dis-
charge. As noted above, we adopt these findings.
PALMS HOTEL & CASINO 1365
pected absence . . . as soon as possible, preferably no
later than four (4) hours prior to the beginning of your
scheduled shift.”
During the second week of January, Executive Chef
Okashige attended management meetings, where it was
pointed out that employees were getting close to the end
of their probationary period, that staffing levels were
higher than anticipated, and that business tapers off after
the holiday season. In light of the reduced staffing
needs, Okashige began terminating probationary em-
ployees who were not meeting the Respondent’s expecta-
tions.
On the following Monday, January 14, Supervisor
Kingston informed Perez that he had been fired and
would be replaced because he “didn’t pass probation.”
Kingston escorted Perez to Okashige’s office. Okashige
gave Perez his termination notice, dated January 9, which
stated as the reason for separation: “Introductory pe-
riod[.] Did not meet introductory standards or depart-
ment standards and expectation of management.”
Applying Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), the judge found that the General Counsel met his
initial burden of showing that the Respondent had
knowledge of Perez’ union activity and that antiunion
animus was a motivating factor in the Respondent’s deci-
sions to issue the warning to him and to discharge him.
The judge further found that the Respondent failed to
show that it would have taken the same actions against
Perez even in the absence of his union activity. We do
not agree. Contrary to the judge, we find that the Re-
spondent established that it would have taken the same
action against Perez even in the absence of his union
activity.
After initially hiring a large staff for its November
grand opening and the upcoming holiday season, the
Respondent found itself overstaffed when business
slowed down after the holidays. Additionally, many of
its employees were nearing the end of their probationary
periods. Therefore, to determine how to reduce its ex-
cess staffing, Executive Chef Okashige reviewed person-
nel files and obtained feedback from the chefs regarding
which probationary employees were not meeting the Re-
spondent’s standards.
Based on this information, Executive Chef Okashige
discharged 30 to 40 employees, including 7 to 10 from
the Fantasy Market Buffet, out of a kitchen staff of ap-
proximately 200. Perez, as well as his fellow buffet
cooks Corbett Sayles, Jin Zhan Ma, and Marvin Cabrera,
were among those discharged. According to Okashige,
he selected Perez for discharge based on performance
issues, which included the empty food pans at his buffet
station, Kinney’s report that Perez was not following his
instructions, Egbert’s complaints about Perez’ refusal to
cooperate with her, Perez’ insulting epithets toward Mor-
row, Perez’ harassment of Guerrero, and Perez’ failure to
notify his supervisor promptly that he would be unable to
work on December 31. Sayles, Ma, and Cabrera were
selected for discharge based on similar shortcomings—
problems in getting along with their coworkers and poor
food presentation at their buffet stations. There is no
contention or evidence that Sayles, Ma, or Cabrera were
union supporters.
In sum, Perez was discharged as part of a staff reduc-
tion of probationary employees prompted by business
reasons. There is no evidence or contention that the gen-
eral staff reduction was unlawfully motivated. Further, it
is undisputed that Perez engaged in multiple incidents of
misconduct and poor performance, several of which gen-
erated complaints from his coworkers. Additionally,
other buffet cooks who had not engaged in union activity
and whose performance, although flawed, was not as
deficient as that of Perez were also discharged as part of
the staff reduction. Accordingly, we find that the Re-
spondent has met its burden of showing that it would
have discharged Perez even in the absence of union ac-
tivity.
The judge reached a contrary conclusion, but we find
his reasoning unpersuasive. The judge found “compel-
ling” the fact that the Respondent failed to discipline or
immediately discharge Perez after any individual act of
misconduct but instead took action against him only after
it learned of his support for the Union. The judge found
the Respondent’s supposed inaction was “tantamount to
condonation” of the misconduct. Further, the judge spe-
cifically relied on Perez’ testimony that no supervisor
ever spoke to him about his misconduct.
Even the judge’s own account of the facts, however,
makes plain that the Respondent did, in fact, speak to
Perez about various incidents of misconduct. Thus, Ex-
ecutive Chef Okashige informed Perez that the empty
pans and pans crusted over with food at Perez’ buffet
station were not up to the Respondent’s standards. Sous
Chef Kinney intervened in an argument and told Perez
that he was not permitted to change recipes without Oka-
shige’s approval. Kinney told Perez on another occasion
that he was slicing meat improperly; indeed, Perez ad-
mitted receiving “verbal counseling” for refusing to fol-
low Kinney’s directions. Room Chef Kingston told
Perez that he needed to follow the Respondent’s food
preparation guidelines after Egbert complained to King-
ston that Perez was failing to do so. After Guerrero
complained to Kingston that Perez was bothering her by
asking her to support the Union and requesting her ad-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1366
dress and phone number, Director of Human Resources
Harmon told Perez that he should not solicit during
worktime. Accordingly, the judge’s finding that, prior to
the Respondent’s learning of Perez’ support for the Un-
ion, no supervisor ever spoke to Perez about his miscon-
duct is contrary to the record.
More importantly, the judge failed to consider that
Perez’ discharge occurred in the context of a general
reduction in staff in which the Respondent sought to se-
lect for discharge its poorest performing employees.
Thus, while no single instance of misconduct by Perez
prompted the Respondent to discharge him at the time it
occurred, Perez’ cumulative record of misconduct and
complaints against him by his coworkers made him a
logical candidate for inclusion in the staff reduction.
Indeed, even in this respect Perez was treated the same as
buffet cooks Sayles, Ma, and Cabrera, who were concur-
rently chosen for discharge based on their cumulative
poor performance, rather than discharged immediately
following any particular instance of poor performance.
Thus, even though Perez was selected for discharge at a
time when the Respondent knew of his union support,
this does not undermine the Respondent’s strong show-
ing that, irrespective of his union support, Perez would
have been included in the staff reduction based on his
poor work performance. We, therefore, find that the Re-
spondent has shown that it would have discharged Perez
even in the absence of union activity. Accordingly, we
shall dismiss the complaint allegation that the Respon-
dent’s discharge of Perez violated the Act.
We also find, contrary to the judge, that the Respon-
dent’s January 7 warning to Perez did not violate the Act.
The Respondent issued the warning to Perez for failing
to notify it prior to his starting time that he would be un-
able to work on December 31. The warning cited Perez
for not complying with rule 6 of the Respondent’s team
member guide by “violating the 4 hour call in policy and
not giving management proper notice to replace him for
the day, hurting business by not being set up on time.”
Perez was aware of the Respondent’s requirement that
employees notify their supervisor of any expected ab-
sence as soon as possible and preferably no later than 4
hours prior to their shift. Rather than promptly inform-
ing his supervisor when he decided that he was too ill to
work, however, Perez did not give notice until the actual
start of his shift on December 31. The Respondent was
understandably displeased by Perez’ failure to call in,
particularly as New Year’s Eve was an especially busy
day for the Respondent’s business. Indeed, as the warn-
ing notice stated, in “not giving management proper no-
tice to replace him for the day,” Perez “hurt business by
[preventing the Respondent from] being set up on time.”
Given Perez’ breach of the Respondent’s established rule
by failing to call in regarding his absence on an espe-
cially busy workday, and in light of Perez’ prior per-
formance deficiencies, we find that the Respondent has
shown that it would have issued the warning to Perez
regardless of his union activity.
In reaching a contrary conclusion, the judge noted the
warning notice stated that Perez had violated the Re-
spondent’s “4 hour call in policy,” but that the Respon-
dent’s rule required an employee to notify his supervisor
of his absence “as soon as possible,” and not necessarily
4 hours prior to his reporting time. The judge also found
that Kingston’s and Okashige’s testimony concerning the
warning to Perez was inconsistent. Finally, the judge
noted that it was unusual for the Respondent to give a
written warning to a probationary employee, such as
Perez. We find the judge’s reasoning unpersuasive.
Although the warning notice issued to Perez used the
term “4-hour call in policy” to refer to the rule, the rule
itself requires each employee to notify the Respondent of
absences “as soon as possible, preferably four (4) hours
prior to the beginning of your scheduled shift.” By fail-
ing to promptly telephone the Respondent to give it ad-
vance notice when he decided that he was too sick to
work, Perez violated the rule in that he failed to notify
the Respondent as soon as possible of his absence.7 The
fact that the Respondent used the term “4-hour call in
policy” in Perez’ warning to refer to the rule was incon-
sequential. Perez was aware of the rule’s requirements.
In any event, the warning further stated that Perez failed
to “giv[e] management proper notice to replace him for
the day,” and thus identified the precise nature of Perez’
infraction.
Additionally, unlike the judge, we do not find particu-
larly significant the fact that there were discrepancies
between Kingston’s and Okashige’s testimony concern-
ing the warning to Perez. While Kingston and Okashige
had different recollections regarding which of them
drafted the warning, and Okashige recounted Perez’ prior
misconduct as a factor in deciding to issue the warning
while Kingston focused solely on Perez’ failure to call in
to give notice of his absence, we do not find these ac-
counts so fundamentally at odds as to undermine the le-
gitimacy of the warning notice. Whether expressly
stated or not, Perez’ record of prior misconduct undoubt-
edly was a factor the Respondent’s decision to issue him
the warning. Moreover, given Perez’ record of miscon-

7 We do not agree with the judge that Perez arguably complied with
the Respondent’s rule by dressing and driving to the Respondent’s
facility to report his inability to work. Such action was clearly contrary
to the rule’s express requirement that the Respondent be notified “as
soon as possible” concerning an employee’s absence.
PALMS HOTEL & CASINO 1367
duct, we do not find it remarkable that the Respondent
chose to issue him a written warning for this incident,
even though it was unusual for the Respondent to issue
written warnings to probationary employees. Accord-
ingly, as we find, contrary to the judge, that the Respon-
dent has shown that it would have issued the warning to
Perez even in the absence of union activity, we reverse
the judge and dismiss the complaint allegation that the
Respondent’s issuance of the warning to Perez violated
the Act.
2. The Respondent’s team member guide, distributed
to all employees, contains standards of conduct rules.
Standards of conduct rule 10 forbids employees from
engaging in “any type of conduct, which is or has the
effect of being injurious, offensive, threatening, intimi-
dating, coercing, or interfering with fellow Team Mem-
bers or patrons.” The judge found that the Respondent’s
promulgation and maintenance of rule 10 violated Sec-
tion 8(a)(1) because the rule was facially violative of the
Act. We do not agree.
In determining whether the Respondent’s maintenance
of rule 10 violated Section 8(a)(1), we look to the analy-
sis set forth in Lutheran Heritage Village-Livonia.8 In
that case, the Board stated:
[A]n employer violates Section 8(a)(1) when it
maintains a work rule that reasonably tends to chill
employees in the exercise of their Section 7 rights.
Lafayette Park Hotel, 326 NLRB 824, 825 (1998).
In determining whether a challenged rule is unlaw-
ful, the Board must, however, give the rule a reason-
able reading. It must refrain from reading particular
phrases in isolation, and it must not presume im-
proper interference with employee rights. Id. at 825,
827. Consistent with the foregoing, our inquiry into
whether the maintenance of a challenged rule is
unlawful begins with the issue of whether the rule
explicitly restricts activities protected by Section 7.
If it does, we will find the rule unlawful.
If the rule does not explicitly restrict activity pro-
tected by Section 7, the violation is dependent upon
a showing of one of the following: (1) employees
would reasonably construe the language to prohibit
Section 7 activity; (2) the rule was promulgated in
response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights.9
Applying the above analysis, we find first that the Re-
spondent’s rule 10 does not explicitly restrict activities
protected by Section 7. Rule 10 prohibits “conduct
which is or has the effect of being injurious, offensive,

8 343 NLRB No. 75 (2004).
9 Id., slip op. at 1–2 (fn. omitted).
threatening, intimidating, coercing, or interfering with
fellow Team Members or patrons.” In barring such con-
duct, rule 10 does not explicitly restrict Section 7 activi-
ties.
Additionally, the Respondent did not promulgate rule
10 in response to union activity nor has it applied rule 10
to restrict the exercise of Section 7 rights.10 Indeed, there
is no complaint allegation that the Respondent unlaw-
fully enforced rule 10.
We therefore turn to the issue of whether, absent any
evidence that the Respondent has ever impermissibly
applied—or even threatened to apply—the rule to Sec-
tion 7 activities, its employees “would reasonably con-
strue” rule 10 to prohibit Section 7 activity. We find that
the General Counsel has not established that a reasonable
employee reading rule 10 would construe it to prohibit
conduct protected by Section 7.
As the Board stated in Lutheran Heritage Village-
Livonia, supra, in determining whether a challenged
work rule is unlawful, the rule must be given a reason-
able reading, phrases should not be read in isolation, and
improper interference with employees’ rights is not to be
presumed. In adopting that standard, the Board was
guided by, and cited to, the D.C. Circuit’s decision in
Adtranz ABB Daimler-Benz Transp., N.A. v. NLRB, 253
F.3d 19 (2001), denying enf. in part to 331 NLRB 291
(2000). In Adtranz, the D.C. Circuit vacated as “utterly
without merit” the Board’s finding that a handbook pro-
hibition against the use of “threatening or abusive lan-
guage” potentially chilled the exercise of Section 7 activ-
ity and therefore violated the Act. In so holding, the Ad-
tranz court stressed that threatening and abusive lan-
guage are not inherent aspects of union organizing or
other Section 7 activities,11 and specifically rejected the
argument that the mere “unrealized potential” that “the
rule could reasonably be interpreted as barring lawful
union organizing propaganda” rendered the rule facially
invalid. 253 F.3d at 25–26 (internal quotation omitted).
In our view, the D.C. Circuit’s reasoning in Adtranz
applies with equal force to rule 10, which by its terms,
prohibits only “conduct which is or has the effect of be-
ing injurious, offensive, threatening, intimidating, coerc-
ing, or interfering with fellow Team Members or pa-

10 An example of a rule that would be unlawful because it was
promulgated in response to protected union activity would be a no-
solicitation rule adopted shortly after organizational activities had be-
gun under circumstances in which the employer previously permitted
solicitations and there was no legitimate business justification for the
new rule.
11 The court observed: “In the simplest terms, it is preposterous that
employees are incapable of organizing a union or exercising their other
statutory rights under the NLRA without resort to abusive or threaten-
ing language.” 253 F.3d at 26.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1368
trons.” Such conduct is no more inherently entwined
with Section 7 activity than the “threatening and abu-
sive” language at issue in Adtranz or the prohibitions
against “verbal abuse,” “abusive or profane language,” or
“harassment” found lawful in Lutheran Heritage Village.
Nor are the rule’s terms so amorphous that reasonable
employees would be incapable of grasping the expecta-
tion that they comport themselves with general notions of
civility and decorum in the workplace. Indeed, even our
dissenting colleague does not appear to dispute that the
conduct prohibited by rule 10 is, in many instances, un-
protected by the Act. Concededly, there may be in-
stances where protected conduct has an untoward effect
on an employee (e.g. he/she is subjectively offended by a
peaceful solicitation). However, the rule has never been
applied, or intended to apply, to that situation. We
would not speculate that a reasonable reader of the rule
would read the rule as applying to that situation.12
Our dissenting colleague also argues that the inclusion
of the language “or has the effect of being” injurious,
etc., exacerbates the ambiguity she perceives in rule 10.
In her view, the rule would chill a reasonable employee
from engaging in the exercise of peaceful Section 7 ac-
tivity because such an employee would: (1) reasonably
construe the rule as applying to a situation where a hy-
persensitive employee is subjectively offended by peace-
ful Section 7 activity, (2) would reasonably anticipate
that the subjectively offended hypersensitive employee
would report the complaint to management, and (3)
would reasonably anticipate, in the absence of any evi-
dence of such a predilection, that management would
conclude that the peaceful, objectively inoffensive con-
duct which inspired the hypersensitive reaction violated
the rule and warrants discipline. The mere recitation of
the premises underlying our colleague’s argument effec-
tively answers it. We are simply unwilling to engage in
such speculation in order to condemn as unlawful a fa-
cially neutral workrule that is not aimed at Section 7 ac-
tivity and was neither adopted in response to such activ-
ity nor enforced against it.
Finally, nothing in the Board’s decision in Lutheran
Heritage Village or our decision today is inconsistent
with the principle, cited by our colleague, that ambigui-
ties in a document are to be construed against its drafter.
As the cases cited by the dissent illustrate, that principle
has generally been applied to rules limiting solicitation or

12 Lutheran Heritage Village, supra, slip op. at 2. See also Adtranz
ABB Daimler-Benz Transp. N.A., Inc. v. NLRB, 253 F.3d 19, 25 (D.C.
Cir. 2001) (rule banning abusive or threatening language was lawful).
distribution of literature.13 Those rules, of course, explic-
itly touch upon Section 7 activity.14 But where, as here,
the rule does not address Section 7 activity, the mere fact
that it could be read in that fashion will not establish its
illegality.15 We hew to the principles articulated in Lu-
theran Heritage Village and the cases cited therein and
decline to parse through workrules, viewing phrases in
isolation, and attributing to employers an intent to inter-
fere with employee rights, in order to divine ambiguities
that will render such rules unlawful. Accordingly, we
reverse the judge and find that the Respondent’s promul-
gation and maintenance of rule 10 did not violate Section
8(a)(1).
ORDER
The National Labor Relations Board orders that the
Respondent, Fiesta Hotel Corporation d/b/a Palms Hotel
and Casino, Las Vegas, Nevada, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees regarding their union
sympathies and activities.
(b) Impliedly threatening its employees with discharge
because they have engaged in activities in support of the
Union.
(c) Informing its employees that they are prohibited
from discussing their working conditions.
(d) Promulgating and maintaining in effect, in its team
member guide, a standards of conduct rule prohibiting
employees from loitering in company premises before or
after working hours.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Expunge standards of conduct rule 46 from its team
member guide.
(b) Within 14 days after service by the Region, post at
its facility in Las Vegas, Nevada, copies of the attached
notice marked “Appendix.”16 Copies of the notice, in

13 Norris/O’Bannon, 307 NLRB 1236, 1245 (1992) (overbroad no-
solicitation, no-distribution rule). NLRB v. Miller, 341 F.2d 870, 874
(2d Cir. 1965) (overbroad no-solicitation rule).
14 Lutheran Heritage Village, supra, slip op. at 1 fn. 5.
15 Id. at 2. See also Cintas, 344 NLRB No. 118, slip op. at 1, 4
(2005) (applying Lutheran Heritage Village standard to confidentiality
rule without citing to ambiguity principle relied on by judge). Compare
Lafayette Park Hotel, 326 NLRB 824, 828 (1998) (applying ambiguity
principle in rejecting employer’s argument that rule barring access for
off-duty employees was narrower in scope than its text suggested).
16 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
PALMS HOTEL & CASINO 1369
English and Spanish, on forms provided by the Regional
Director for Region 28, after being signed by the Re-
spondent’s 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 no-
tices 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 Re-
spondent 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 December 28, 2001.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
MEMBER LIEBMAN, dissenting in part.
Applying the Board’s recent decision in Lutheran
Heritage Village-Livonia,1 the majority finds that the
General Counsel has not demonstrated that a reasonable
employee would construe the standard of conduct rule 10
to prohibit conduct prohibited by Section 7. I disagree,
and would instead find that an employee would reasona-
bly construe the rule’s language as including protected
activity, and would thus be chilled in his exercise of Sec-
tion 7 rights. For this reason, I would find that the rule
violates Section 8(a)(1).2
I.
An employer violates Section 8(a)(1) when it main-
tains a work rule that reasonably tends to chill employees
in the exercise of their Section 7 rights. Lafayette Park
Hotel, 326 NLRB 824, 825 (1998), enfd. mem. 203 F.3d
52 (D.C. Cir. 1999). The Board has previously found
such work rules to be unlawful when they discourage
protected conduct based on whether it is “subjectively
offensive” to other employees or managers. See, e.g.,
Tawas Industries, 336 NLRB 318, 322 (2001). See also
Consolidated Diesel Co., 332 NLRB 1019, 1020 fn. 6
(2000) (collecting cases). Otherwise, employees’ pro-
tected activity would be subject to the sensitivities of
other members of the work force, thus establishing a la-

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 343 NLRB No. 75 (2004). Member Walsh and I dissented from
that decision. See slip op. at 4.
2 I concur in the reversal of the 8(a)(3) violations found by the judge
involving Martin Perez, as well as the other aspects of the majority’s
decision.
bor law variant of the “heckler’s veto” forbidden in con-
stitutional law. See Brown v. State of La., 383 U.S. 131,
133 fn. 1 (1966). Indeed, in accord with Section 7’s tra-
ditional protection of robust and spirited activity—within
the limits of the employer’s right to an orderly work-
place3—the Board has found the most persistent solicita-
tion to be protected, even when it annoys or disturbs
other employees. See, e.g., RCN Corp., 333 NLRB 295,
300 (2001); Bank of St. Louis, 191 NLRB 669, 673
(1971), enfd. 456 F.2d 1234 (8th Cir. 1972).
II.
Here, the Respondent’s standards of conduct rule 10
prohibits “conduct which is or has the effect of being
injurious, offensive, threatening, intimidating, coercing
or interfering with fellow Team Members or patrons”
(emphasis added). The question, then, is whether an em-
ployee reasonably would read the rule as covering un-
wanted or persistent solicitation—protected activity. I
would find that the language of the rule indicates that an
employee would reasonably read the rule in this manner.
To begin, the judge was correct in citing the “amor-
phous nature” of the language used to describe prohibited
conduct as the basis for finding rule 10 unlawful. An
employee simply cannot be sure what conduct the em-
ployer might consider “injurious” or “offensive” or “in-
timidating” or “interfering with” other workers. The
ambiguity of these words gives the employer great dis-
cretion in defining them and in deciding when to impose
discipline—enough discretion to invalidate the rule under
established law. See, e.g., Advance Transportation Co.,
310 NLRB 920, 925 (1993). Indeed, it is well estab-
lished that any ambiguity in a rule should be construed
against the employer. See, e.g., Lafayette Park Hotel,
supra, 326 NLRB at 828, citing Norris/O’Bannon, 307
NLRB 1236, 1245 (1992). As the Second Circuit stated
40 years ago in enforcing the Board’s invalidation of a
confusingly-worded work rule: “[T]he risk of ambiguity
must be held against the promulgator of the rule rather
than against the employees who are supposed to abide by
it.” NLRB v. Miller, 341 F.2d 870, 874 (2d Cir. 1965).4
This ambiguity is exacerbated by the rule’s explicit
reference to the “effect” of prohibited conduct. The

3 “No restriction may be placed on the employees’ right to discuss
self-organization among themselves, unless the employer can demon-
strate that a restriction is necessary to maintain production or disci-
pline.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956).
4 As I have observed before, employers might minimize facial chal-
lenges to their workplace rules by notifying employees of their rights
under Sec. 7 of the Act and advising them that workrules are not in-
tended, and should not be construed, to interfere with the employees’
rights. See Lutheran Heritage Village, supra, 343 NLRB No. 75, slip
op. at 7 fn. 7; Safeway, Inc., 338 NLRB 525, 528 (2002) (Member
Liebman, dissenting).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1370
wording of the rule explicitly indicates that an em-
ployee’s conduct can violate the rule by his conduct’s
effect on others: a coworker merely needs to feel injured,
offended, threatened, intimidated, coerced, or interfered
with, by the conduct in question. Thus, an employee’s
solicitation activity may objectively conform with rule
10 as noninjurious, nonoffensive (and so forth), but
would still violate the rule if it were perceived by another
employee as “offensive,” or even “interference,” for ex-
ample. Contrary to the majority, there is nothing specu-
lative about this interpretation—the “effect” language is
part of the rule. To avoid discipline, then, an employee
would be wise to curtail his solicitation activity, despite
its protected status under Section 7. In this way, rule 10,
on its face, chills the exercise of employees’ rights under
the Act.
III.
Today’s decision threatens to allow employers to take
advantage of the chilling effect of ambiguous rules. To
the extent that protected activity is discouraged this way,
the employer need never issue an explicit prohibition
against it or engage in retaliation after the fact. The re-
sult, of course, is every bit as contrary to the Act’s goals.
Accordingly, I dissent.
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate you regarding your union
sympathies or activities.
WE WILL NOT impliedly threaten you with discharge
because of your activities in support of the Union.
WE WILL NOT inform you that you are prohibited from
discussing your working conditions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
under the National Labor Relations Act.
WE WILL expunge standards of conduct rule 46 from
our team member guide
FIESTA HOTEL CORPORATION D/B/A PALMS
HOTEL AND CASINO
Winkfield Twyman Jr., Esq. and Stephen E. Wamser, Esq., for
the General Counsel.
Warren L. Nelson, Esq. (Fisher & Philips LLP), of Irvine, Cali-
fornia, for the Respondent.
Richard G. McCracken, Esq. (McCracken, Stemerman, Bowen
& Holsbery) and Kevin Kline, of Las Vegas, Nevada, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. Local Joint
Executive Board of Las Vegas, Culinary Workers Union, Local
226, and Bartenders Union, Local 165, AFL–CIO, a/w Hotel
Employees and Restaurant Employees International Union,
AFL–CIO (Union), filed the original and amended unfair labor
practice charges in the above-captioned matter on March 29
and May 31, 2002, respectively. After an investigation, on
May 31, 2002, the Acting Regional Director of Region 28 of
the National Labor Relations Board (Board), issued a com-
plaint, alleging that Fiesta Hotel Corporation d/b/a Palms Hotel
and Casino (Respondent), had engaged in, and continues to
engage in, acts and conduct violative of Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act). Respondent
timely filed an answer, essentially denying the commission of
any of the alleged unfair labor practices. Pursuant to a notice of
hearing, a trial on the merits of the unfair labor practice allega-
tions was held before the undersigned administrative law judge
in Las Vegas, Nevada, on October 22 through 24, 2002, and
February 4 and March 17, 2003. During the hearing, each party
was afforded the opportunity to examine and to cross-examine
witnesses, to offer into the record any relevant documentary
evidence, to argue their respective legal positions orally, and to
file a posthearing brief. Counsel for the General Counsel and
counsel for Respondent filed posthearing briefs, and the under-
signed closely perused these documents. Accordingly, based
upon the entire record herein, including the posthearing briefs
and my observation of the testimonial demeanor of each of the
witnesses, I issue the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Respondent, a State of Nevada
corporation, with an office and place of business located on
Flamingo Road in Las Vegas, Nevada, has been engaged in the
gaming and lodging industry, operating a hotel and casino,
herein called Respondent’s facility. During the 12-month pe-
riod ending March 29, 2002, in the normal course and conduct
of its business operations described above, Respondent derived
gross revenues in excess of $500,000 and purchased and re-
ceived at its Las Vegas facility goods, valued in excess of
$50,000, directly from suppliers located outside the State of
PALMS HOTEL & CASINO 1371
Nevada. Respondent admits that, at all times material herein, it
has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that, at all times material, the Union has
been a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ISSUES
The complaint alleges that Respondent has maintained vari-
ous work rules, including a confidentiality provision and rules
prohibiting injurious, offensive, threatening, intimidating, and
coercive conduct, loitering on its premises before and after
working hours, and eating and loitering in the employees’ din-
ing room on days off, which, on their face, are violative of Sec-
tion 8(a)(1) of the Act. In addition, the complaint alleges that
Respondent changed the work schedule of and, subsequently,
laid off its employee, Carlos Interiano, in violation of Section
8(a)(1) of the Act and issued a warning notice to and, subse-
quently, terminated its employee, Martin Perez, in violation of
Section 8(a)(1) and (3) of the Act. Further, the complaint al-
leges that Respondent engaged in conduct, violative of Section
8(a)(1) of the Act, by prohibiting its employees from concert-
edly discussing complaints about their wages, hours, and work-
ing conditions, complaining to their supervisors about their
wages, hours, and working conditions, and directing their fel-
low employees to complain to their supervisors about their
wages, hours, and working conditions, by disparaging employ-
ees who engaged in the above-described acts and conduct, by
interrogating its employees about their union membership,
sympathies, and activities, and by threatening employees with
discharge for engaging in union activities. Respondent denied
engaging in the alleged unfair labor practices and contends that
it laid off Interiano and discharged Perez for legitimate business
reasons.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Disciplining and Discharge of Martin Perez
Respondent owns and operates the Palms Hotel and Casino,
which is located on Flamingo Road in Las Vegas, Nevada, and
which had its grand opening on November 17, 2001. The re-
cord establishes that, in addition to three restaurants, which are
managed by their owners, who lease space for them from Re-
spondent,1 there are five food outlets (a coffee shop, the Fan-
tasy Market Buffet, Gardena’s Restaurant, the “team” dining
room (TDR), and room service) at Respondent’s facility and
that Harris Okashige is Respondent’s executive chef2 and re-
sponsible for the production and quality of the food served by
each and for the overall supervision of the employee comple-
ment at the above food outlets and the facility’s main kitchen.3

1 These restaurants are Nines, Alazay, and Little Buddha.
2 Respondent admits that Okashige is a supervisor within the mean-
ing of Sec. 2(11) of the Act.
3 Okashige estimated that there are approximately 200 employees
under his supervision and that these employees are classified as cooks,
cooks helpers, sous chefs, and room chefs.
The record further establishes that Respondent’s Fantasy Mar-
ket Buffet is a typical Las Vegas-style buffet and specializes in
“stations” for barbeque, Chinese, Lebanese, Mediterranean, and
Italian foods and a bakery; that Mike Kingston is the room chef
and responsible for all kitchen functions, including the training,
scheduling, evaluation, and supervision of the 30 cooks, cooks
helpers, and runners working in the buffet; and that James
Kinney is a sous chef in that food outlet.4 The record also es-
tablishes that, at all times material herein, Fred Harmon, was
Respondent’s director of human resources; that his office was
located on Flamingo Road across from Respondent’s facility;
that, in the weeks prior to the opening of the facility, he and his
staff interviewed and hired approximately 2000 employees; and
that he directed a staff responsible for training and acquainting
each of the new hires with Respondent’s personnel policies and
procedures.5
The record reveals that Okashige interviewed alleged dis-
criminatee, Martin Perez, on November 26, 2001 and offered
him a job as a cook in the Fantasy Market Buffet and that the
latter began working for Respondent the next day, being as-
signed to the Lebanese station6 of the buffet. According to
Perez, who had been a member of the Union since 1999 and
had 12 years experience as a cook but none in Lebanese cook-
ing, on his first day of work, he received training in how to
prepare the Lebanese food from a chef, who subsequently left
Respondent’s employ. Perez testified that, shortly after com-
mencing to work for Respondent, he received a letter from the
Union, advising him of the Union’s interest in organizing Re-
spondent’s employees and of a rally which would be held out-
side of Respondent’s facility on December 4 and that, on the
day before the scheduled union rally, and on the day of the
rally, he had three conversations with coworkers regarding
employment-related problems during which he discussed the
Union. The first occurred in the morning, on December 3,
when he spoke to two dishwashers in the dishwashing area of
the kitchen, and they “. . . started complaining to me that [Re-
spondent] made them work overtime and . . . didn’t pay them
for [working].” Perez told his coworkers about the Union and
invited them to participate in the upcoming rally. The second
conversation occurred later in the employees’ breakroom when
he spoke with three other cooks about work-related problems
and told them about the union rally. The third conversation
occurred the next morning during which he spoke with three
dishwashers, who related complaints concerning their treatment
by a manager; Perez informed them of the rally, scheduled for
later in the day, and suggested they demonstrate their support
for the Union by attending. The record further reveals that,
later in the day, approximately 500 supporters of the Union
rallied in front of Respondent’s facility at 4 in the afternoon.
Perez, who was off-duty, attended, and “I took one of the signs

4 Respondent admitted that Kingston and Kinney were supervisors
within the meaning of Sec. 2(11) of the Act.
A sous chef acts as the assistant to the room chef.
5 Respondent’s employees, in Respondent’s vernacular, are known
as “team members.”
6 Apparently, as the owner of Respondent’s facility is of Lebanese
decent, this food station was an important one, and the food had to be
cooked to the taste of the owners.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1372
up that said no contract no peace and explained about the prob-
lems I had.” Asked if any managers witnessed his attendance
and participation during the rally, Perez, who believed he was
the only Respondent employee participating, stated that three
security guards, wearing black suits and sunglasses, stood out-
side the main entrance of the facility during the rally and ob-
served what transpired.
There is no dispute that, one day in the last week of Decem-
ber an incident, involving Perez and a cook’s helper, Ernestina
Guerrero, occurred at the barbeque station on the buffet line.
While I shall discuss it in greater detail infra, I note that, during
a conversation between the two employees7 as they worked,
Perez spoke favorably about the Union, mentioning the benefits
which the latter would seek for the employees, and asking for
Guerrero’s phone number and home address and for her support
for the Union.8 Rather than responding favorably to Perez’
requests,9 Guerrero asked him to leave her alone and not to
bother her about the Union again. Executive Chef Okashige
testified that, upset over Perez’ conduct, on December 27,
Guerrero came to his office10 and complained that Perez had
been harassing her, by soliciting for the Union and asking for
her address and telephone number. Assertedly after speaking to
Perez by himself, Okashige informed Respondent’s director of
human resources, Fred Harmon, about the Perez-Guerrero inci-
dent, including Perez’ asserted harassment and union solicita-
tion of her. Harmon instructed Okashige to arrange a meeting
with Perez for the next day, and there is also no dispute that
such a meeting between Perez, Okashige, and Harmon occurred
on Friday, December 28.11
On that date, at approximately 11 a.m., according to the al-
leged discriminatee, James Kinney instructed him to report to
Okashige’s office, and, when he arrived at the executive chef’s
office, Perez found Okashige and another manager, whose
name he did not recall,12 waiting there for him. “They” closed
the door, and the second manager, whose name Perez did not
recall, asked “. . . ‘We don’t know you, but did you talk to co-
workers about the Union?’” Perez denied the allegation, “and
they started talking to me about the Union, and they said that
they didn’t want the Union and that they were going to give
good benefits to me and better wages.” To this, Perez said he
did not like the Union and did not want the Union, which was

7 Perez testified that the conversation lasted “around ten minutes;”
while Guerrero recalled their conversation as lasting for “two hours.”
8 According to Guerrero, Perez solicited her signature presumably
for an authorization card.
9 According to Guerrero, during their conversation, Perez requested
her telephone number twice and solicited her signature for the Union
six to eight times.
10 Okashige asserted that Michael Kingston had referred Guerrero to
his office. Guerrero, however, testified that she only told Kingston
about the incident and specifically denied relating what occurred to
Okashige.
11 Perez placed the meeting as occurring at least 1 week after the in-
cident with Guerrero.
12 During cross-examination of Perez, Respondent’s attorney pointed
to Harmon and asked Perez if he was the other person in the room.
Perez said he did not recall and added that the man was wearing a coat
and tie. During his testimony, Harmon admitted he was the person but
denied wearing a coat and tie on that day.
why he was working at Respondent’s facility. At this com-
ment, both managers began laughing, and Okashige said that
they did not want to fire him because of his work experience
and that “‘we’re going to keep you.’” Perez inquired about a
wage increase, and Okashige said Perez would eventually be
paid $14 per hour. At this point, the conversation ended, and
Perez left the office. During cross-examination, when asked if
the person, who spoke to him, mentioned the no-solicitation
policy in the employees’ handbook, Person replied, “I don’t
recall too well, but I think they did talk to me about the hand-
book and that they were going to give the benefits and guaran-
tees.”13 Then, Perez specifically denied being shown the no-
solicitation policy but admitted that Okashige and the other
manager mentioned that he should not be soliciting during
worktime but that he could do so during breaks and lunch.
As to the recollections of Perez and Okashige regarding this
meeting, Okashige recalled that, after he introduced Harmon to
Perez, Harmon “. . . did all the talking,” saying “. . . ‘that there
were allegations . . . that you are involved in harassing team
members and soliciting phone numbers and addresses to give
the Union’. . . . Fred also let Martin know that he couldn’t
solicit while he was on the job. If he wanted to talk about Un-
ion issues, he could talk about it on his break time in designated
break areas.”14 According to Respondent’s executive chef,
Perez “denied Harmon’s accusation . . . after Fred had said to
him about the allegations of soliciting and stuff like that.” As
to his version of the conversation, Harmon, who, as the man-
agement representative for Respondent,15 remained in the hear-
ing room and listened to Okashige’s account, testified, “I ex-
plained to [Perez] that we had received a complaint from a
fellow team member and that her complaint was that he was
disrupting her while she was trying to work. He kind of had a
questioning look on his face, so I gave him the specifics of
what she had claimed. I told him that she had said . . . he was
asking her continuously for her address and . . . her phone
number so she could provide it for the Union . . . he was shak-
ing his head and he said . . . I don’t like the Union. And I told
him this wasn’t about whether he liked the Union or not, it was
just about being disruptive on the work line. . . . And I ex-
plained to him that if he wanted to have those types of conver-
sations . . . he could have [them] down in the break room and

13 As will be discussed infra, upon being hired, new employees are
given copies of Respondent’s team member guide, which is the em-
ployees’ handbook and which contains their terms and conditions of
employment. Fred Harmon testified that, during their orientations, his
staff informed the new employees of Respondent’s “expectations” and
their responsibilities pursuant to Respondent’s employment policies.
Respondent’s solicitation and distribution of literature policy, as set
forth in its employees’ handbook, prohibits employees from “. . . dis-
tribut[ing] literature or printed materials of any kind, sell[ing] mer-
chandise or solicit[ing] for any other cause during working time. . . .
[T]eam Members who are not on working time . . . may not solicit from
Team Members who are on working time for any cause or distribute
literature of any kind to them. You also cannot distribute literature or
printed materials of any kind in working areas at any time. . . .”
14 The transcript incorrectly has the word “could” before the word
“solicit” and is hereby corrected.
15 All other witnesses were sequestered.
PALMS HOTEL & CASINO 1373
also in the team member dining room. . . . I reiterated that he
wasn’t in trouble. . . .”16
According to Perez, also on December 28, he became ill and,
during the afternoon, consulted a doctor in a local health
clinic,17 was diagnosed with acute bronchitis18 and was given a
prescription for twice-daily doses of a spray from an inhaler.
He testified that he last breathed in spray from the inhaler at
approximately 8 on Sunday night and fell asleep, intending to
report for work the next day but that, when he awoke on Mon-
day morning at 6, he felt “dizzy” and “my head was turning.”
Asserting that he felt too ill to work and admitting that he was
aware of Respondent’s attendance/call-in policy, which re-
quires employees (team members) to “. . . personally notify
your supervisor or a member of your department of your ex-
pected absence . . . as soon as possible, preferably no later than
four (4) hours prior to the beginning of your scheduled shift,”
rather than telephoning Michael Kingston, Perez dressed and
drove to Respondent’s facility in order to inform Kingston of
his illness and “. . . that I couldn’t work.”19 Arriving at Re-
spondent’s facility,20 he went up to the buffet area, spoke to
Kingston, and explained that he felt too sick to work that day,
New Year’s Eve. Kingston glared at Perez with “a mad expres-
sion” and told him to go home. The next day, New Years Day,
Perez reported for work; however, “Chef Mike told me to go
back home and told me that I had to show him paper work
where the doctor said that I was able to work again.” Perez left
the hotel, returned to the medical clinic, which he had visited
on the previous Friday, spoke to the doctor who had treated
him, and obtained a medical release, enabling him to return to
work. He returned to work the next day, Wednesday, and
worked the remainder of the week without incident.
On Monday, January 7, 2002, Perez reported for work and
was given a written warning, termed a “ written coaching,”21 by

16 Respondent offered into the record a document, R. Exh. 16, dated
December 28, 2001, which Harmon identified as a file memorandum he
drafted after the meeting with Perez and which contains his purported
recollection of the conversation.
17 Perez claimed that he felt ill during the meeting with Okashige and
Harmon.
During direct examination, after initially testifying he became ill on
or about December 31, after being shown a calendar, Perez changed his
testimony, stating that he first became ill on December 28. However,
later, during cross-examination, after denying he previously testified
that he visited a doctor later in the day on December 28, and after being
shown R. Exh. 1, a form with the title “Guadalupe Medical Centers”
and bearing the date December 28, 2001, Perez conceded he visited the
health clinic on December 28.
18 Perez claimed that he was ill with bronchitis and asthma. How-
ever, there is nothing on the clinic’s form to indicate he suffered from
the latter disease.
19 Perez explained that he failed to follow the call-in procedure as he
had fallen asleep the night before believing he would be well enough to
work the next day.
20 Perez’ work shift began at 8 a.m.
21 Respondent’s disciplinary procedure is a progressive one, known
as “coaching action.” Said procedure, which entails oral, written, and
final warnings, culminating in possible termination, is utilized to en-
force Respondent’s 70 standards of conduct, work rules, and job poli-
cies, as set forth in its team member guide, and to ensure its employees’
his supervisor, Kingston.22 Said document, General Counsel’s
Exhibit 7, signed, on December 31, 2001, by Okashige and
Kingston, states that, when he reported for work at 8 a.m. and
said he was sick and could not work, Perez acted in violation of
rule no. 6 of the team member guide23 by “. . . violating the 4
hour call in policy and not giving management proper notice to
replace him for the day. . . .”24 Perez testified that, when King-
ston gave him the written warning, he told the alleged discrimi-
natee “. . . that he gave me a warning because I hadn’t called
four hours before, and that is why he was giving people warn-
ings.”25 While he signed the warning notice, Perez wrote on it,
“I don’t feel good with this warning because I tried to come to
work.” A week later, on Monday, January 14, 2002, after
clocking in and starting to work, Perez was informed by King-
ston that he (Perez) had been fired and would be replaced be-
cause he “didn’t pass probation.”26 Moments later, Kingston
accompanied Perez to Harris Okashige’s office where the latter
gave Perez his termination document notice.27 According to
Perez, he asked me to sign, and I refused to sign. Then he

maintain proper job performance, work habits, conduct, demeanor, and
“overall attitude.”
22 The first 90 days of employment for all new employees is known
as their “introductory” period, which is Respondent’s terminology for
an employee’s probation period. Whether for new employees, unlike
those who have completed 90 days of employment, Respondent is
required to utilize its progressive coaching action procedure prior to
discharge is unclear. Thus, Michael Kingston testified that Respon-
dent’s progressive discipline policy is followed on all occasions; how-
ever, “depending on the severity of the act,” such as a worker stabbing
another worker in his head with a fork, it may not be followed. Asked
if there is any difference in discipline when an employee is in his intro-
ductory period as opposed to after completing 90 days, he replied, “no,”
and, when asked if he is required to give write-ups prior to dismissal
during an employee’s introductory period, he answered, “Yes, as a
supervisor, I need to do my job.” Harris Okashige stated that, during
the introductory period, rather than disciplining employees, Respondent
“. . . like[s] to try to coach people and train them and teach them our
policies and procedures. And then get them headed in the right direc-
tion . . . and be part of our team.” However, Fred Harmon stated that
he has never instructed supervisors not to give progressive discipline to
introductory period employees, and he stated that there have been occa-
sions on which progressive coaching action has been taken against new
employees. In the latter regard, Okashige stated that, in early 2002, he
gave written warnings, for failure to adhere to Respondent’s clock-in
procedure, to two newly hired cooks in the Gardena’s restaurant.
23 Standard of conduct no. 6 is “Failure to follow rules, directions,
instructions, policies or procedures of the company whether oral or
written.”
24 There is no mention, in the warning notice, of any prior coaching
violations.
25 The transcript is incorrect as to the word before “called” and is
hereby corrected as set forth above.
26 According to Perez, Kingston told him, “‘Martin, I am going to
replace you,’” which “. . . ‘means you’re fired.’ . . . And I asked him,
`Who personally is firing me?’ . . . And he said, ‘I personally am firing
you.’”
27 Said document, GC Exh. 8, is signed by Respondent’s general
manager, Jim Hughes, Carol Bauck, a human resources manager, and
Okashige and states as the reason for Perez’ discharge, “Introductory
period. Did not meet introductory standards or department standards
and expectations of management.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1374
wrote down that I refused to sign the termination. Perez stated
that Okashige failed to explain why he had been discharged,
“. . . and I asked him for some paper where it said why I was
terminated, and they never gave me it.”
With regard to allegation pertaining to the warning notice,
dated January 7, Michael Kingston testified that, for a ho-
tel/casino, New Year’s Eve and New Year’s Day (December 31
and January 1) are the busiest days of the year; that Perez was
late reporting for work on December 31, and wore regular
rather than a cook’s clothing; and that, when he arrived, Perez
announced he would not be able to work and produced a doc-
tor’s note, which was more than one day old. According to
Kingston, inasmuch as Perez reported late for work and was not
in uniform and as Perez had a “predated” medical excuse, he
decided28 to issue a written warning to the former.29 Kingston,
who appeared to acknowledge that the handwritten comments
on the document were his,30 conceded the foregoing were his
only reasons for giving Perez the warning notice over the De-
cember 31 incident.31 During cross-examination, Kingston
explained that, as calling in prior to the work shift “. . . gives us
a little more time to get whatever they have to get done, and try
to get somebody from another kitchen, and change the work-
load to make quicker items or whatever it takes,” the warning
notice emphasized Perez’ failure to adhere to Respondent’s
four hour call-in requirement.32 In this regard, also during
cross-examination, Kingston explained his problem with the
dating of Perez’ medical excuse—“I believe it was because he
had the previous days off,” and “he had two days to call be-
fore.” Finally, Kingston further testified that he brought the
coaching document to Okashige for his signature and that, in
his presence, Okashige “looked at” and then signed the docu-
ment.33 Contradicting Kingston, Harris Okashige asserted that
he was the supervisory official who decided to give the January
7 warning notice to Perez and that he was the individual who
drafted the document. Thus, when asked who made the deci-
sion to do so, Respondent’s executive chef declared, “I did at
the end . . . it was based on . . . my chef’s feedback to me and
what [Perez] did as an employee.” According to Okashige,

28 In response to Respondent’s counsel’s question as to whether the
date of Perez’ medical note had any impact on his decision to issue the
warning notice to the alleged discriminatee, Kingston replied, “Yes.”
29 Asked what he meant on the warning notice by stating Perez’ fail-
ure to adhere to the company policy hurt business, Kingston answered,
“By not having enough personnel to set up on time it affects the cus-
tomers that are coming in.” Asked if he recalled specifically how
Perez’ absence affected customers that morning, Kingston answered,
“Well, no. . . .”
30 While Kingston never was asked whether his handwriting appears
on the document, he did admit he did not write on the warning notice
that Perez was not in uniform when he reported for work on December
31.
31 Kingston admitted that there is no mention of Perez not being in
uniform in the coaching document or of the predated doctor’s excuse.
32 Kingston emphasized that “the proper procedure is to call in four
hours before your shift. Martin had had the whole weekend off . . . .”
He added that all Perez was required to do was to leave a voice mail
message for the department, “or you can leave it with security.”
33 According to Kingston, Okashige said nothing about the absence
of previous related coaching dates and reasons in the document.
“. . . it was brought to my attention from [Kingston] that [Perez]
didn’t call in on time, and it left him in a jam. Kingston said
that he was “frustrated” because “that is one of our busiest days
of the season” and that, as Respondent already had “a lot of
issues” with Perez, he wanted Okashige “. . . ‘to think about it
and look at what we have here.’”34 Okashige agreed to do so,
examined his “documentation”35 on Perez, recalled “some of
the issues at hand,” and “I just felt at that point . . . it is serious
enough that Martin needs to realize that it can’t go on any
more.” Thereupon, Okashige testified that he drafted the warn-
ing notice, informed Kingston “. . . that I was going to go ahead
and formally write it on the coaching document and issue it to
Perez,”36 and gave it to the alleged discriminatee. Noting that
the precipitating reason for the written coaching was Perez’
“failure to adhere to Respondent’s call-in procedure and by
providing notice of his intent to be absent four hours prior to
the start of his work shift,” Okashige testified that Perez’ file
contained paperwork pertaining to several past serious coaching
“incidents” and, as, after each, he had afforded Perez “opportu-
nities” to correct his misbehavior, he (Okashige) felt giving
Perez a warning notice on this occasion was necessary to make
the latter realize he needed to become “serious about being a
Palms team member.” As to these prior incidents, Okashige
listed one, involving himself and Perez, Perez’ failure to follow
directions given to him by a sous chef, James Kinney, problems
between Perez and another cook, Beverly Egbert, Perez’ pen-
chant for using derogatory Spanish epithets when referring to
another cook, Richard Morrow,37 and Perez’ harassment of
Ernestina Guerrero.
Concerning the incident between himself and Perez, Oka-
shige testified that, on one occasion towards the end of Novem-
ber, while walking the food line, he came up to Perez’ station
and noticed empty pans and others crusted over with food. The
executive chef explained to Perez that empty food pans and
ones crusted over with food were not up to Respondent’s stan-
dards, and Perez responded that he was waiting for all the pans
to be “totally empty” before changing them. Okashige reiter-
ated that such conditions were beneath Respondent’s standards,
and Perez said he would change the pans.38 As to the incident

34 During direct examination by counsel for the General Counsel,
Kingston testified that, subsequent to deciding to issue GC Exh. 7 to
Perez but prior to the latter’s termination, he was asked by Okashige to
provide all of his documentation on Perez to him. Bluntly put, accord-
ing to Kingston, Okashige did not say why, but “he is my boss. I do
what I’m told.” Subsequently, he changed his testimony, stating that he
gave this material to Okashige prior to December 31.
35 At one point in his testimony, Okashige stated that he keeps a di-
ary of verbal disciplines. Asked if he maintains an actual diary, Re-
spondent’s executive chef changed his testimony, stating that he makes
notes on a “piece of paper” as reminders of conversations with his
supervisors. Subsequently, he again changed his testimony, stating “I
don’t keep them. I don’t maintain them . . . unless it is a severe situa-
tion, and then I will document it . . . in a log book.”
36 Okashige specifically denied that Kingston alone decided to give
the warning notice to Perez and minimized Kingston’s role in the epi-
sode—“His role was just to inform Martin that I needed to see him in
my office.”
37 Okashige takes notes of coaching incidents on yellow legal tablets.
38 Okashige considered this a verbal coaching.
PALMS HOTEL & CASINO 1375
between Kinney and Perez, according to Okashige, “. . . James
Kinney approached me that he had problems with Martin Perez
. . . not following directions from him and wanting to do things
on his own and wanting to change things.” Regarding Beverly
Egbert, Okashige stated this incident occurred at the same time
as that between Kinney and Perez and involved Egbert asking
“. . . for help from Martin, and Martin didn’t want to help.
Martin was trying to explain to her how he felt Lebanese cook-
ing should be done, and this is how he knew it was right, and
not the way we were doing it. He was giving her a hard time
about how her preparation of the chicken was supposed to be.”
In late December, “. . . Richard Morrow had an incident with
Martin Perez. There was some name calling done [with Perez
going to Morrow] saying puta and maricon . . . to . . . Morrow
to the point where . . . Morrow was just totally upset and didn’t
want to function any more for that day.39 Finally, as described
above, the Guerrero incident assertedly involved Perez solicit-
ing the former to support the Union and asking her for her ad-
dress and telephone number while both were working. Oka-
shige further testified that the only one of the above-described
incidents, about which he had personal knowledge, was that
which concerned himself and Perez. With regard to the others,
according to Okashige, Kinney reported problems with Perez to
him; Egbert “flagged [him] down” in the buffet and complained
about Perez;40 and Morrow and Guerrero each came to his of-
fice, complaining about Perez’ misconduct.41
Asked why he failed to give Perez a written coaching notice
after any of the above incidents, which occurred prior to De-
cember 31, Okashige replied that it was Perez’ probation pe-
riod, and “. . . we like to try to coach people and train them and
teach them our policies and procedures. And then get them
headed in the right direction . . . and be part of our team.”
Asked why, in these circumstances, he felt compelled to issue a
written warning after Perez’ failure to call in 4 hours prior to
his shift on December 31,42 Okashige replied that, while Re-
spondent was affording new employees, such as Perez, “lee-
way” in adhering to its polices and practices, “. . . we have
coached him, and we have helped him . . . we gave him oppor-
tunities . . . to stop and then all of a sudden you don’t call in for
four hours prior to your shift. It kind of shows disrespect for
your job.” Finally, with regard to General Counsel’s exhibit 7,
asked, when he presented the written coaching to Perez,
whether he explained to the latter the reasons for it, Okashige
replied, “I did . . . I explained to him about the handbook and
where it states there has to be four hours notice. . . . He said he

39 Apparently, both words are derogatory and insulting Spanish epi-
thets, with puta meaning snitch, bitch, or a variant of gay and maricon
meaning bitch or whore.
40 According to Okashige, Egbert said Perez wanted to “change
things” at the Lebanese station and insisted he had more knowledge as
to how to cook the food than did she. As a result, according to the
executive chef, he spoke to James Kinney and asked him to make sure
Perez did not change any of the Lebanese food recipes.
41 Okashige testified that he spoke to Perez regarding the Morrow
and Guerrero incidents and that Perez denied engaging in any of the
alleged misconduct.
42 According to Okashige, Respondent does not routinely discipline
team members for not adhering to the 4-hour call-in rule.
knew that. I also explained to him that [we had given him
many opportunities to improve his behavior] . . . ‘We try to
help you and correct you. . . . But to me it looks like . . . you
really don’t care about your job.’” Asked again if Perez under-
stood the warning concerning all of his previous misconduct,
Okashige replied, “Yes . . . because I did bring up the other
instances.” Then, asked why he failed to document the prior
misconduct on the warning notice, Okashige said the document
was “. . . just items that we had verbally coached him with. . . .
I didn’t feel that it was so severe that I had to list all those items
on the sheet. I mean . . . it was basically for the four hour call-
in.”43 Then, when pointed to the fact that Perez’ comments on
the warning notice only refer to the contents of the document,
Okashige insisted he told Perez “. . . that there was a number of
items that he was not following.”
Tuning to Respondent’s defense to the allegation that it
unlawfully discharged Perez on January 9, 2002, the former
contends that, as were numerous other employees, Perez was
terminated as part of its effort to reduce its work force from the
level believed necessary for the opening of the facility in No-
vember. In this regard, Okashige testified that, in the second
week of January, “. . . there were management meetings and at
[them], it was brought to our attention that . . . we were getting
close to the end of the probationary period . . . our staffing lev-
els are higher than we anticipated because of opening, and now
it is time to look at staffing levels.”44 Also, “. . . of course . . .
business tapers after the holiday season.” Therefore, “given
. . . those factors, we decided to look at labor and did we really
need as much labor as we hired in to open the hotel. . . . I
started reviewing files and talked to other chefs and other out-
lets and in the buffet outlet for that fact, and gotten feedback.
And based on all the feedback . . . we started to go ahead and
eliminate team members that we felt wouldn’t meet our proba-
tionary period because they didn’t live up to the standards that
we expected them to.”45 In these regards, the record establishes
that, as of December 31, 2001, Respondent employed “close to
200” kitchen employees in the food outlets over which Oka-
shige was in charge, that, after Respondent concluded its staff-
ing reductions in these food outlets, Respondent employed
between 165 and 170 employees in Okashige’s department,46
that Harris Okashige personally terminated the 30 to 40 em-
ployees in his department during the 2-month period after the
opening of Respondent’s facility, and that, in the buffet, “. . .
close to seven to 10 maybe cooks, prep cooks, and runners”

43 Okashige admitted that, but for Perez’ failure to adhere to Re-
spondent’s call-in policy, a written coaching document would not have
been given to the alleged discriminatee.
44 As to these management meetings, Okashige testified that he at-
tended “a few” at the end of December and the beginning of January,
that these were conducted by the general manager, the assistant general
manager, and the director of human resources, and that all department
heads, their assistants, and their supervisors attended.
45 Based upon his review, Okashige concluded his departments were
“maybe just a little bit” overstaffed.
46 Asked if he was actually instructed to reduce his employee com-
plement, Okashige replied, “I wasn’t really told to do it. I was told to
look at the levels and if that was adequate, did we need that much, did
we need more, or did we need less.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1376
were discharged. In the latter regard, Respondent offered evi-
dence regarding three other buffet cooks (Corbett Sayles, Jin
Zhan Ma, and Marvin Cabrera), who were discharged on or
about January 9, with each selected for discharge for perform-
ance-related reasons47 and none for conduct similar to that en-
gaged in by Perez.48 Specifically with regard to the latter, Oka-
shige testified that he selected Perez for discharge “based upon
his performance,” which includes, besides the New Year’s Eve
incident, the empty food pans, which he discovered one day,
James Kinney’s report that Perez was not following his instruc-
tions, Beverly Egbert’s complaints about Perez, the latter’s use
of insulting Spanish epithets directed toward Morrow, and the
harassment of Ernestina Guerrero.
Regarding the incident between James Kinney and Perez,
while Respondent failed to call the former as a witness, Beverly
Egbert, who was hired and continues to work as a Lebanese
food cook in the buffet, testified that, one day, she and Perez
began arguing; Kinney intervened and called them into the
buffet office. He told them that Perez couldn’t change the reci-
pes; that they had been taught how to cook Lebanese food by a
Lebanese chef, and that, if Perez wanted to change anything, he
should first speak to Okashige. On another occasion, according
to Egbert, she observed and overheard Kinney objecting to how
Perez was slicing meat, and “they could not use it because it
was too thick so they had to throw away the meat.”49 Perez
denied ever refusing to follow Kinney’s directions about reci-
pes, saying “. . . I would always ask for the recipe,” and they
would say he would be given the recipe “later,” but “. . . they
would never give it to me.” However, during cross-
examination, Perez changed his testimony, admitting that he
refused to follow Kinney’s work directions on one occasion. “I
was working and he . . . told me to do something else and I
didn’t pay attention to him. Then he took me to the office, and
he said that when he says something I had to do it at that instant
. . . and I didn’t pay attention to him.”
As to the Beverly Egbert’s problems with Perez, she testified
that, on or about December 1, 2001, Perez was assigned to
work with her at the Lebanese buffet station as a “cook

47 According to Okashige, Sayles, Jin Zhen Ma, and Cabrera were
each selected for discharge for basically the same reasons—problems in
not getting along with fellow employees and food presentation at their
buffet stations.
48 According to Okashige, of the many employees, who failed to
survive their probationary periods, only Perez received a written coach-
ing, and none engaged in acts of name calling and harassment as did
Perez.
49 Richard Morrow, a cook on the barbeque station of the buffet and
Ernestina Guerrero, a cook’s helper at the station, corroborated Egbert.
Morrow testified that, on one occasion while he worked with Perez,
“. . . Chef Mike came up and directly told [Perez] how to carve the
brisket.” When Kingston walked away, Perez said “. . . something
about how long he has been in the business, and he knows how to do
things. . . .” Guerrero testified that “Mr. Perez was carving meat the
wrong way. And Mike Kingston came by to check, and he told [Perez]
. . . he was carving it the wrong way, and he showed him the correct
way to do that.” When Kingston walked away, Perez continued doing
the wrong way.
helper”50 and that, as such, “. . . he is supposed to help me.
Whatever I need, he is supposed to help me do it. If I am cook-
ing the food and I have other things that needs [sic] to be done,
he is supposed to take on for that and do it.”51 According to
Egbert, she showed Perez “everything” for cooking the Leba-
nese food, and, for a while, he followed her directions. How-
ever, “he started changing things” and telling her how he
thought the food should be cooked. Asked if she ever saw him
actually change a recipe, Egbert said, “No, not when I was
there. . . . I did the cooking so he couldn’t change anything.”
Asked if Perez asked to change a recipe, Egbert replied, “He
didn’t ask. He just said, ‘Well, this is what I think.’” Egbert
recalled one occasion during which she and Perez argued about
cooking a chicken. She instructed him to remove a chicken
from the oven, and Perez said he was a cook and not a cook’s
helper, and “from then on he started to not want to do anything.
If I say okay can you do this and do that, he wouldn’t do it. He
would just walk around and talk to his friends. . . . He didn’t do
anything.”52 Michael Kingston testified that Egbert came to
him with complaints about Perez’ work, saying the latter was
not preparing food in the way the owners required and was
trying to change the recipes. According to him, Egbert “. . .
was confused. She said you showed me how to do this like
that, and he wants to change it, and he said it should be done
like this. She was getting all stressed out.” Thereafter, accord-
ing to Kingston, he approached Perez and said “you need to do
it in the guidelines. This is the way you do it . . . ‘because this
is the way the owner wants it.’” Perez denied ever telling any-
one that he wanted to change any recipe without authorization;
however, he did admit “the first that I worked at the Palms
buffet, the [cook] in charge of the Lebanese food . . . showed
me how to cook the Lebanese food. And on the second day
when I met [Beverly Egbert], that is when I noticed that she
was cooking everything wrong, and I told her and she said that
she had started working there when the Palms Hotel had
started.” During cross-examination, Perez accused Egbert of
“always being jealous” and not permitting him to see what she
was doing. However, asked if he, in fact, refused to follow her
directions, Perez admitted, “That’s correct.”
Regarding Perez’ name-calling directed toward Richard
Morrow, the latter testified that, for a while, Perez was assigned
to work with him, that other buffet workers, including Egbert,
“. . . told me that [Perez] was saying . . . that I was gay and
making comments like that, and that he personally heard the
alleged discriminatee utter “. . . comments . . . under his breath
. . . saying things in Spanish like maricon and puta. . . .” Mor-
row further testified that he heard the epithets “numerous times
on a daily basis, that such continued as long as Perez worked in
the buffet, and that Perez’ conduct upset him “very much” to

50 Kingston defined a cook’s helper as an individual who does “. . . a
little bit less than a cook. They are based on their knowledge as far as
how much they can actually do.”
51 Contrary to what Egbert may have believed, Respondent conceded
that Perez was classified as a cook.
52 Whatever her problems with Perez, Egbert did not have much ex-
perience working with him as, when asked how long she worked with
the alleged discriminatee, Egbert replied, “I would say not even a good
week.”
PALMS HOTEL & CASINO 1377
the point that “I actually had to go file a complaint.”53 Accord-
ing to Morrow, he complained directly to Kingston, and “I told
him that [Perez] was . . . calling me names and making my life
miserable, and he said . . . he would take care of it.”54 How-
ever, Perez’ misconduct did not cease, and, eventually Morrow
confronted Okashige, threatening to quit because of what was
happening. During cross-examination, Morrow conceded that
he failed to complain each time he overheard one of Perez’
epithets, but “I told Chef Mike, and I filed a written complaint,
and I also told him that it had to be stopped.”55 Besides cor-
roborating Morrow that the latter did, in fact, come to his office
with his complaint about Perez, Harris Okashige testified that,
immediately thereafter, he had Perez brought to his office and
told him there were “allegations from a team member” regard-
ing name-calling in Spanish, the meaning of which Perez would
know. The latter denied engaging in such misconduct, and
Okashige then specified Morrow as the complaining employee.
According to Okashige, Perez again denied the allegation.
During direct examination, Perez admitted using the pejoratives
puta three times and maricon two times in describing Richard
Morrow but averred that the latter did not appear to be bothered
by the epithets. During his cross-examination, Perez specifi-
cally denied being questioned by Kingston or any other super-
visor regarding his alleged use of foul language directed to
Morrow and doubted that Morrow would have complained to
his supervisors “because they didn’t call me to the office.” He
added that he eventually stopped his name calling as “another
co-worker . . . said that [Morrow] was a good worker and for
me to stop calling him like that, and that is when I stopped it”
and that, in any event, he would have stopped on his own “be-
cause I would have gotten tired of telling him.”
The final incident, which caused Okashige to select Perez for
discharge, was the alleged discriminatee’s harassment of Guer-
rero. In this regard, the latter testified that she was carving
meat, work which involved sharp knives and hot food, one day
when Perez began speaking to her “. . . about joining the Un-
ion.” According to her, “[Perez] told me that the Union would
give me good benefits, and they would help me in my job if I
needed any kind of help, and if I [was] . . . either fired or hav-
ing problems . . . they would help me out.” Also, Perez “. . .
wanted my phone number and my address and he also wanted
. . . to see if I could sign to be in the Union.” Guerrero added
that the conversation continued for 2 hours and that, during it,

53 Asked for the circumstances of these comments, Morrow replied,
“. . . if I was working in the back we have a window where you put
food out. He would come to the window and ask for food and he would
say ‘I need mashed potato maricon,’ and I know that doesn’t mean
please.”
54 Kingston corroborated Morrow that the latter came to see him as
he was “upset” because Perez was continually calling him “some sort
of names,” the Spanish equivalents for “whore” and “fag.” According
to Kingston, he took a statement from Morrow and informed Okashige
as to what Morrow reported.
55 Respondent maintains a “No Harassment Policy” in its team
member guide. It states that “any type of harassment—involving co-
workers, guests, or other visitors to our property—is illegal and a viola-
tion of our company policy.” Further, among the prohibited acts of
harassment covered by the provision is sexual harassment, and this
includes “unwelcome sexual teasing, jokes, remarks, or questions.”
Perez asked for her phone number twice and for her to sign
with the Union six to eight times. As she did not “want to be
bothered” by Perez, she reported the incident to Mike Kingston,
and he requested her to file a complaint form. Although Guer-
rero specifically denied reporting Perez’ conduct to Okashige,
the latter testified that Kingston sent Guerrero to his office, that
she explained to him what occurred, and that, as a result, he
sent for and met with Perez later in the day in his office. Ac-
cording to Respondent’s executive chef, he told Perez “. . . that
I had a team member come to me and [make] . . . allegations
that he was harassing her and that . . . this . . . needed to stop.”
Perez denied harassing anyone, and Okashige said such conduct
would not be tolerated. Assertedly, Perez said he understood.
While admitting that, during one 10 minute conversation at
their work station, he asked Guerrero for her telephone number
and address and asked her to support the Union and that Guer-
rero responded by saying she did not want to hear anything
about the Union and asked him to leave her alone, Perez spe-
cifically denied speaking to any supervisor about the incident.
According to Harris Okashige, in light of the above-described
incidents, he decided to select Martin Perez for discharge to
help accomplish Respondent’s desire to reduce its staff after the
opening of its facility—“At this point . . . I felt that all the is-
sues that Martin had it was time to say goodbye to him.”
Michael Kingston’s role, if any, in the decisionmaking proc-
ess is unclear. Thus, asked, by me, if he was directly consulted
with regard to the discharge of Perez, Kingston, who testified
that Okashige told him he was discharging Perez because of his
failure to pass his 90-day probation period, answered, “Yes, I
believe I was”; however, when asked the same question again,
Kingston stated, “I don’t believe so. . . .” Then, asked by me if
he recommended that Perez be discharged, Kingston, who ad-
mitted having authority to recommend termination of employ-
ees, replied, “I think recommendation is my own personal feel-
ings . . . my recommendation is just maybe documentating the
stuff that goes on. I mean, I don’t go up and say . . . I think we
should fire this guy.” Subsequently, after stating he was not
involved in the discharge decision, when asked by counsel for
the General Counsel if he recommended the discharge of Perez,
Kingston changed his testimony, saying “I guess I did.” What-
ever he may or may not have said to Okashige, Kingston was
clear that, pursuant to Okashige’s request, he provided “. . . all
the information that I had on Martin Perez as far as what I had
talked to him about, and daily actions, and the witness state-
ments, and that kind of stuff. . . .” Finally, according to King-
ston, he did not become aware that Perez had been discharged
until Okashige telephoned him with the news and instructed
him to tell the alleged discriminatee. As to what Okashige told
him, Kingston recalled Okashige merely saying Perez had
failed to meet the 90-day probation period. As to his version of
the discharge conversation with the alleged discriminatee, Oka-
shige testified that, after reaching his decision to discharge
Perez, he met with the latter and explained to him that he was
being terminated. Perez became “upset,” said he would not
sign anything, and walked out of Okashige’s office. Asked if
he discussed with Perez the reasons for his discharge, Okashige
said, “I didn’t,” and, contradicting Perez, said, because he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1378
walked out, “. . . Martin didn’t want to give me a chance to
discuss anything.”
Finally, with regard to Respondent’s termination of Perez,
counsel for the General Counsel contends that Respondent’s
position statements, submitted to the Board during the investi-
gation of the Union’s unfair labor practice charge, reveal incon-
sistent and shifting defenses. In this regard, in his position
letter, dated March 22, 2002, counsel for Respondent stated that
Perez “. . . was terminated during his introductory period for
failing to meet the department standards and expectations of the
Employer. The Employer considered all aspects of his per-
formance from his hire date . . . through January 7, 2002. Dur-
ing his brief period of employment, Mr. Perez received numer-
ous verbal counselings and a written coaching . . . pertaining to
his failure to follow Company rules, policies, and procedures.”
Counsel then listed Perez’ alleged violations of Respondent’s
policies, including the epithets directed toward Morrow, prepar-
ing food in an unauthorized manner and altering recipes on two
occasions, telling Egbert and others that they did not have to
follow sous chef Kinney’s directions, failing to maintain his
work schedule and varying it without authorization, and failing
to adhere to the proper procedure for providing notice of inabil-
ity to work.
In determining whether the unfair labor practice allegations
of the complaint, pertaining to Martin Perez, are meritorious, I
initially must consider the credibility of the witnesses. In this
regard, current employees, Richard Morrow, Beverly Egbert,
and Ernestina Guerrero impressed me as being candid and ve-
racious witnesses, and each is worthy of belief and credit.
None of the other witnesses were as impressive. Thus, while
the demeanor of each was not that of a deceitful witness, nei-
ther Martin Perez nor Michael Kingston appeared to be entirely
forthright. Perez was contradictory and made assertions which
defied belief,56 and Kingston was contradictory and evasive in
his responses to questions regarding his role, if any, in the dis-
charge of Perez. However, as between the two individuals, the
alleged discriminatee was the more credible witness. Unlike
Perez and Kingston, neither the demeanor, while testifying, of
Harris Okashige nor the demeanor, while testifying, of Fred
Harmon was that of a particularly trustworthy witness. On, at
least, one important point, Okashige’s testimony was at odds
with a more credible witness57 and not corroborated by an-
other,58 and Harmon, who remained in the hearing room while
others were sequestered and listened to Okashige’s account of a
crucial meeting with Perez, appeared to be testifying in a man-
ner solely to buttress the defense of his former employer.59

56 On this point, I note his denial of ever refusing to follow James
Kinney’s directions and his contention that he would have ceased his
use of epithets against Richard Morrow “because I would have gotten
tired of telling him.”
57 His assertion that Ernestina Guerrero personally complained to
him about Perez’ harassment was specifically denied by Guerrero.
58 Kingston failed to corroborate Okashige that the former sent Guer-
rero to his office with her complaint.
59 At its peril, Respondent permitted Harmon, who, as he was essen-
tial to Respondent in order to assist its attorney, to remain in the hear-
ing room during Okashige’s testimony. Another disinterested individ-
ual could have been selected for this function during the latter’s testi-
Accordingly, I shall rely upon Okashige’s and Harmon’s ver-
sions of conversations and events herein only when not contro-
verted by a more credible witness, and, whenever the testimony
of Perez and that of Okashige and/or Harmon conflict, I shall
give credence to the alleged discriminatee’s version of events.
The complaint alleges that Respondent engaged in conduct,
violative of Section 8(a)(1) of the Act by interrogating Perez
about his activities in support of the Union and by threatening
him with discharge because of his union activities. In this re-
gard, there is no dispute that Okashige and Harmon met with
Perez in Okashige’s office on Friday, December 28, 2001.60
Based upon my above-stated credibility resolutions, I find that,
during said meeting, Harmon asked Perez “. . . we don’t know
you but did you talk to co-workers about the Union,” that Perez
denied engaging in the asserted conduct, that Harmon then
informed Perez he should not be soliciting during worktime but
could do so during breaks and told him of Respondent’s antipa-
thy for the Union and of the benefits and wages, which it would
be paying to its employees; that Perez replied that he did not
like the Union and did not want the Union; that Harmon and
Okashige began laughing and the latter said they did not want
to fire him because of his work experience and “we’re going to
keep you.” While counsel for Respondent contends that the
above-described meeting was prompted not by Perez’ union
organizing but, rather, by Guerrero’s complaint of harassment,
it is clear from Harmon’s question that his concern was Perez’
union solicitation and not Guerrero’s asserted inquietude over
Perez’ conduct. Whether Harmon’s question constituted
unlawful interrogation depends upon whether, under “all the
circumstances,” Harmon’s question reasonably tended to re-
strain, coerce, or interfere with Perez’ Section 7 rights. Ross-
more House, 269 NLRB 1176, 1177 (1984). Notwithstanding
that Harmon did refer to Respondent’s unchallenged no-
solicitation rule, I note that Perez was not an open and avowed
union adherent, that the interrogation occurred in the executive
chef’s office and was conducted by Respondent’s director of
human resources, that both men are admitted supervisors and
that, as will be discussed infra, the questioning was accompa-
nied by a blatantly unlawful implied threat of discharge. In
these circumstances, I conclude that Harmon’s interrogation of
Perez was coercive and violative of Section 8(a)(1) of the Act.
Eaton Technologies, 322 NLRB 848, 850 (1997); 3E Co., 313
NLRB 12, 16 (1993). Regarding Okashige’s comment to Perez
that Respondent did not desire to terminate him and would
retain him as an employee, I can see no purpose for Okashige’s
comment, which immediately followed Harmon’s interrogation,
other than as a thinly veiled threat of termination to ensure that
Perez understood Respondent’s opposition to the Union and the
consequences of his continued conduct in support of the Union.

mony. Further, given my assessment of Harmon’s credibility, I place
no reliance upon the document, which purportedly corroborates his
version of the December 28 meeting with Perez.
60 I specifically do not credit Okashige that he met with either Guer-
rero or Perez before the December 28 meeting. In this regard, I believe
that Okashige became aware of Guerrero’s complaint about Perez from
Kingston and that, because of the alleged union solicitation by Perez,
Okashige alerted Harmon and the latter instructed Okashige to arrange
a meeting between himself and Perez.
PALMS HOTEL & CASINO 1379
Clearly, “threatening employees, whether explicitly or implic-
itly, with termination of employment if they engage in union
activities is a well-established violation of Section 8(a)(1) of
the Act..” 3E Co., supra; Kona 60 Minute Photo, 277 NLRB
867 (1985). Accordingly, I find that Okashige’s implied threat
of discharge to Perez was likewise violative of Section 8(a)(1)
of the Act.
Turning to the warning notice, which Respondent issued to
Perez on January 7, 2002, Respondent’s discharge of Perez 2
days later on January 9, the complaint alleges, and counsel for
the General Counsel argues, that Respondent’s acts were under-
taken in violation of Section 8(a)(1) and (3) of the Act. In this
regard, traditional Board law is well settled. Thus, as explained
by the Board in Naomi Knitting Plant, 328 NLRB 1279, 1281
(1999), pursuant to Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir.1981), cert. denied 455 U.S. 989
(1981), approved in Transportation Management Corp., 462
U.S. 393 (1983), in order to establish a violation under Section
8(a)(1) and (3) of the Act, the General Counsel must prove, by
a preponderance of the evidence, that antiunion animus was a
motivating factor in Respondent’s conduct. Once such a show-
ing has been made, the burden shifts to Respondent to demon-
strate that the same action would have taken place in the ab-
sence of, or notwithstanding, the employee’s activities in sup-
port of the Union. To sustain its initial burden of proof, that of
persuading the Board Respondent acted out of antiunion ani-
mus, the General Counsel must show (1) that the employee was
engaged in activities in support of the Union; (2) that Respon-
dent was aware of or suspected the employee’s involvement in
activities in support of the Union; and (3) that the employee’s
activities in support of the Union were a substantial or motivat-
ing factor underlying Respondent’s actions. Such motive may
be established by circumstantial evidence as well as by direct
evidence and is a factual issue. FPC Moldings, Inc. v. NLRB,
64 F.3d 935, 942 (4th Cir. 1965), enforcing 314 NLRB 1169
(1994). Four points are relevant to the above-described ana-
lytical approach. First, the Board, in determining whether the
General Counsel has established a prima facie showing of
unlawful animus, will not quantitatively analyze the effect of
the unlawful motive. The existence of such is sufficient to
make the acts and conduct at issue violative of the Act. Wright
Line, supra, at 1069 fn. 4. Second, once the burden has shifted
to Respondent, the crucial inquiry is not whether Respondent
could have engaged in the alleged unlawful acts and conduct
but, rather, whether Respondent would have done so in the
absence of the alleged discriminatee’s support for the Union.
Structural Composites Industries, 304 NLRB 729 (1991);
Filene’s Bargain Basement, 299 NLRB 183 (1990). Third,
pretextual discharge cases should be viewed as those in which
“. . . the defense of business justification is wholly without
merit” (Wright Line, supra, at 1089 fn. 5), and the “burden
shifting” analysis of Wright Line need not be utilized. Arthur
Young & Co., 291 NLRB 39 (1998). Finally, regarding the
latter point, “it is . . . well settled . . . when a respondent’s
stated motive for its actions is found to be false, the circum-
stances warrant the inference that the true motive is an unlawful
one that the respondent desires to conceal.” Fluor Daniel, Inc.,
304 NLRB 970, 970 (1991); Shattuck Denn Mining Corp. v.
NLRB, 362 F. 2d 466 (9th Cir. 1966).
As to whether counsel for the General Counsel met their ini-
tial burden of establishing that Respondent was unlawfully
motivated in issuing the disciplinary written coaching docu-
ment to Perez, the alleged discriminatee testified that he was a
supporter of the Union, attended the Union’s rally outside Re-
spondent’s facility, and spoke to other employees about sup-
porting the Union. Moreover, of course, Ernestina Guerrero
corroborated Perez’ admission that, while both were working
together on the buffet line one day in late December 2001, he
solicited her support for the Union. Further, there can be no
question but that Respondent was well aware of the latter so-
licitation and surely suspected Perez’ support for the Union. In
this regard, Guerrero testified that she informed Michael King-
ston about the incident; Harris Okashige asserted that Guerrero
also informed him and that, as he was concerned about the
involvement of the Union, he telephoned Fred Harmon, who
instructed Okashige to arrange a meeting with Perez. Finally,
on this point, I have credited Perez that Harmon’s initial ques-
tion to him, during the meeting on December 28, concerned his
alleged conversations, about the Union, with other employees.
Regarding the existence of unlawful, antiunion animus, I have
previously found that, during the said meeting, Okashige and
Harmon coercively interrogated Perez and implicitly threatened
him with discharge in order to persuade him to cease support-
ing the Union. Moreover, the fact that his supervisors, King-
ston and Okashige each executed the alleged unlawful warning
notice on Perez’ next day of work is indicative of the existence
of unlawful animus towards him. Publishers Printing Co., 317
NLRB 933, 937 (1995); Sawyer of Napa, 300 NLRB 131, 150
(1990). In these circumstances, I believe counsel for the Gen-
eral Counsel have met their burden of proof and established
that Respondent was unlawfully motivated in issuing the disci-
plinary written coaching document to Perez.
Accordingly, the burden of proof shifted to Respondent to
show that it would have engaged in the same action against
Perez notwithstanding his support for the Union. In this regard,
I note that the stated reason for the warning notice was Perez’
failure to abide by Respondent’s 4-hour call-in rule for report-
ing an inability to work and that both Kingston and Okashige
stressed the importance of this rule and employee adherence to
it. However, analysis of the rule discloses that there is the only
mandatory requirement for an employee to report an absence or
tardiness is that such be done “as soon as possible” and that
Respondent merely preferred that such be done 4 hours prior to
the start of the employee’s work shift.61 Further, Kingston and
Okashige were utterly contradictory as to the decisionmaking
process underlying the discipline. Thus, while implicit in the
former’s testimony was that he was the individual, who decided
to discipline Perez, and that he drafted the warning notice and

61 I credit Perez that he went to sleep on Sunday night, intending to
report for work on Monday morning and that, only after awakening and
feeling the effects of his bronchitis, did he conclude he was unable to
work. Arguably, he complied with the intent of Respondent’s absence
policy by dressing and driving to Respondent’s facility to report his
inability to work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1380
while Kingston maintained that he took the document to Oka-
shige, who read it and then affixed his signature to it, Okashige
asserted that he was the management official, who decided to
discipline Perez and drafted the language on the document, and
that he informed Kingston of the personnel action. Moreover,
the two management officials contradicted each other as to the
reasons underlying the disciplinary warning notice. Kingston
asserted that he issued the written coaching only because Perez
reported late for work on December 31, was wearing regular,
rather than work, clothing, and gave him a predated doctor’s
note as an excuse for not being able to work. His testimony is
in stark contrast to that of Okashige, who listed as the underly-
ing reasons for disciplining Perez five prior incidents, including
one between himself and Perez and others involving James
Kinney, Beverly Egbert, Richard Morrow, and Ernestina Guer-
rero. Significantly, none of these underlying reasons appear on
the written coaching document, and, while Okashige insisted
that he informed Perez of each of the reasons for the discipline,
Perez’ written response only refers to the reason, which is
stated on the document itself. Finally, Respondent concedes
that giving a written coaching notice to a probationary em-
ployee is a rare occurrence,62 and I note that no such action was
taken in response to Perez’ continued use of insulting and sexu-
ally explicit epithets directed toward Morrow, which act was in
clear contravention of Respondent’s no harassment policy, and
the Union solicitation of Guerrero, which was in clear violation
of Respondent’s no-solicitation rule. In my view, Respondent’s
failure to do so can only be explained by its apprehension that
issuing a warning to the alleged discriminatee immediately
after soliciting Guerrero’s support for the Union would appear
as retaliatory and, hence, unlawful. Given the foregoing, Re-
spondent’s defense to the allegation that the warning notice was
unlawfully motivated appears to be, at best, addled and, at
worst, feigned and a sham. In these circumstances, I believe
that Respondent seized upon Perez’ inability to work on De-
cember 31, 2001, an act hardly deserving of reprobation, and
issued the disciplinary coaching document to him because of
his support for the Union in blatant violation of Section 8(a)(1)
and (3) of the Act.
With regard to Respondent’s discharge of Perez, as to
whether counsel for the General Counsel has established that
Respondent was unlawfully motivated in selecting and then
terminating the alleged discriminatee, I have previously con-
cluded above that Perez was a supporter of the Union, attended
the Union’s rally outside the hotel, and solicited other employ-
ees’ support for the Union and that, by interrogating him as to
whether he had spoken to other employees about the Union,
Respondent demonstrated its knowledge or, at least, suspicion,
that Perez was an adherent and supporter of the Union. I have
further concluded that Respondent’s coercive interrogation of
the alleged discriminatee and its veiled threat of discharge to
Perez were indicative of unlawful motivation and that the un-
usual written coaching document, which it issued to Perez, was
unlawfully motivated. In these circumstances, the General

62 Contributing to my doubt regarding Respondent’s defense is the
contradictory testimony it offered regarding the applicability of its
progressive disciplinary system to introductory employees.
Counsel has met its initial burden of proof, demonstrating that
Respondent was motivated by antiunion animus in discharging
the alleged discriminatee.
The burden then shifted to Respondent to establish that it
would have discharged Perez notwithstanding the existence of
unlawful animus. In this regard, its counsel argues that, in light
of Ernestina Guerrero’s report of being “repeatedly pestered”
by Perez for her address and telephone number, Richard Mor-
row’s report that Perez had repeatedly used sexually insulting
Spanish epithets in referring to him, Beverly Egbert’s report
that Perez wanted to substitute his own “concoctions” for Re-
spondent’s “official” recipes, and James Kinney’s report that
Perez refused to follow his directions, Okashige made a busi-
ness decision to discharge the alleged discriminatee along with
several other employees as part of his compliance with Re-
spondent’s general reduction of staff after its opening in No-
vember 2001. While Respondent’s executive chef was uncon-
troverted that he personally discharged approximately 30 to 40
employees from the food outlets, for which he is responsible,
and 7 to10 cooks and others from the Fantasy Market Buffet for
performance reasons and while I believe the accounts of em-
ployees Morrow, Egbert, and Guerrero regarding Perez’ mis-
conduct, I do not believe Respondent established that Okashige
would have selected Perez for inclusion in its reduction of staff
absent his support for the Union. At the outset, the record is
contradictory as to the decision to terminate the alleged dis-
criminatee. Thus, Okashige testified that he was the manage-
ment official who discharged Perez; however, Michael King-
ston failed to deny telling the alleged discriminatee “I person-
ally am firing you” and was vague and contradictory as to
whether he recommended Perez’ discharge. Further, while
Kingston testified that Okashige merely informed him that
Perez was being terminated because he failed the probation
period, Okashige, of course, listed the above-stated incidents in
explanation for his decision to discharge Perez. Notwithstand-
ing the foregoing, what is most compelling, and upon which I
place the greatest significance, is Respondent’s failure to im-
mediately discharge, let alone discipline, Perez after any of his
acts of misconduct, including Morrow’s complaint about the
alleged discriminatee’s insulting name-calling or Guerrero’s
complaint about his union solicitation of her, both of Perez’
actions clearly contravening important employment policies set
forth in Respondent’s team member guide. As he deemed these
acts of misconduct more serious than the behavior of other
employees, whom he terminated in January 2002 for failure to
pass their probationary periods,63 and as he was not constrained
to adhere to Respondent’s progressive discipline system and
authorized to discharge Perez at any point during his probation
period64—indeed, Perez was discharged fewer than 60 days into
his introductory period, Okashige’s explanation, that he was
giving Perez “some leeway” during his introductory period,
appears to be utterly disingenuous. In this regard, noting that

63 Unlike Perez, these employees were “close to the end” of their in-
troductory periods.
64 I find that Okashige clearly believed he was under “no require-
ments” to provide progressive discipline to introductory or probationary
employees.
PALMS HOTEL & CASINO 1381
Okashige was contradicted by employee Guerrero, who denied
any meeting with the former regarding Perez’ so-called har-
assment of her, and that Respondent offered none of Oka-
shige’s “documentation” as corroboration of disciplinary meet-
ings with Perez, I specifically credit and rely upon Perez that no
supervisor ever spoke to him about his above-described mis-
conduct65 and find that, prior to becoming aware of his support
for the Union and beyond noting employee and supervisory
complaints, Respondent’s conduct upon receiving reports of
Perez’ conduct66 constituted inaction tantamount to condona-
tion. Put another way, Okashige did not decide to discharge the
alleged discriminatee until becoming aware of his support for
the Union and, then, I believe, seized upon the hotel manager’s
requirement that he reduce his employment complement in
order to rid Respondent of a perceived union adherent. Accord-
ingly, I do not believe Respondent sustained its burden of proof
and find that Respondent’s discharge of Perez was motivated
by his perceived support for the Union and in violation of Sec-
tion 8(a)(1) and (3) of the Act.
B. The Discharge of Carlos Interiano
The record establishes that one of the privately owned food
outlets, which leases space from and is located in Respondent’s
facility, is the Little Buddha Restaurant. The restaurant is op-
erated by a partnership consisting of the owner of the chain of
Little Buddha restaurants67 and Respondent’s owners, and Re-
spondent concedes that, for purposes of labor relations policies
and practices, the restaurant and it are joint employers. The
record establishes that the concept of the Little Buddha is that
of an upscale facility consisting of a restaurant, which serves
Asian-French fused cuisine, a bar, and a dance club; that, at all
times material herein, the executive chef of the restaurant was
Gerald Kamimura, the executive sous chef was Andrew Pike,68
and Juan Medina was one of the restaurant’s sous chefs,69 and
that, shortly after the opening of Respondent’s facility, ap-
proximately 35 employees (consisting of line cooks, pantry

65 I believe that Okashige fabricated with his accounts of asserted
meetings with Perez regarding the complaints of Morrow and Guerrero,
and that Kingston was delusive in describing a meeting with Perez
regarding the Morrow name calling.
66 I note that Perez admitted much of the misconduct, which Re-
spondent attributes to him, and I wish to stress my repugnance toward
some of it, particularly Perez’ despicable use of vulgar sexual epithets
referring to Richard Morrow. Clearly, Respondent could have termi-
nated Perez for this continuing misconduct and violation of its work
rules, but, as set forth above, what Respondent could have done is not a
consideration herein.
67 Other facilities are located in Paris, France and Los Angeles, Cali-
fornia.
68 According to Pike, when the restaurant opened, the food, as pre-
pared by Kamimura, was not up to the standards of the Little Buddha
restaurants, and, whenever Respondent’s owner dined at the restaurant,
he did not experience the “food” as it should have been prepared.
Accordingly, as they had “full knowledge” of the Little Buddha meth-
ods, Pike, who assisted in the openings of other Little Buddha facilities,
and another chef, Keith Matsuoka, were asked to go to Las Vegas in
order to correct the problem and to assist the executive chef, helping
him “execute” the recipes in the correct manner.
69 Respondent admits that Kamimura and Medina are supervisors
within the meaning of Sec. 2(11) of the Act.
cooks, prep cooks, dishwashers, stewards, and management
staff) were working in the restaurant’s kitchens.70
Carlos Interiano worked as a baker in the Little Buddha res-
taurant from November 1 until December 23, 2001. Interiano,
whose prior experience as a baker was working for Yum Yum
Doughnuts and Von’s Markets, a supermarket chain, testified
that Juan Medina, who was his friend, informed him that he
(Medina) had been hired by the Little Buddha restaurant and
that the restaurant would need a baker, and “. . . he told me if I
wanted, he can help . . . to hire me” in the Little Buddha. Inte-
riano agreed, and Medina arranged for Interiano to meet with
Kamimura, the overall supervisor of the restaurant staff. Sub-
sequently, Interiano met with Kamimura at the Little Buddha,
and the latter asked Interiano if he was a baker. Interiano said
he was, and Kamimura explained the baking recipes, which
were utilized at the restaurant. When he finished, Kamimura
asked if Interiano would have problems baking according to the
recipe instructions. Interiano answered, “no,” and Kamimura
hired him. The alleged discriminatee began working on No-
vember 1, 2 weeks prior to the opening of Respondent’s facil-
ity. In his first few days of work, “they started to teach me” to
prepare pastries, such as liquid chocolate cake, lemon tarts, and
sweet rice, utilizing the Little Buddha recipes,71 and Interiano
denied that he had any problem learning to bake in the Little
Buddha manner—”I don’t have no problem to learn because
. . . I love my job. I’m a baker all my life.”
Interiano testified that his nominal work schedule was 7 a.m.
to 3 p.m. each day but that, in response to Kamimura requesting
volunteers, he often worked until 5 or 6 p.m. and sometimes
until 8 p.m.—without any breaks during the day.72 In this re-
gard, according to the alleged discriminatee, while he and the
other restaurant employees always clocked in at 7 a.m., they
would not actually begin working until 50 minutes later be-
cause “. . . they say we had to take lunch and breaks together.
So, we need to clock in seven in the morning and start work at
7:50. From [that time] we don’t have no break and lunch . . .
because we already got it.”73 Interiano further testified that the
lack of any breaks during the workday engendered much dis-
content and discussion amongst the employees.74 On one occa-
sion, in the team dining room, Medina, who took the 50 minute
“break and lunch” with the other employees, listened to their
complaints and said “. . . he can’t do anything about it because
he’s not in charge of the schedule. It’s Gerald or Patrick,” who

70 According to Pike, the Little Buddha has two kitchens, “. . . basi-
cally an upstairs and a downstairs kitchen. The upstairs is a prep
kitchen. It’s also where we hold all of our walk-ins. . . . It’s also the
area where we do all the preparation and the pastry. . . . Downstairs
kitchen is the service kitchen is where all the food is prepared to order
at the time the restaurant is opened. . . .”
71 Respondent required Interiano to execute a document in which he
agreed not to disclose the Little Buddha baking recipes to any other
employer or person.
72 At the time the Little Buddha opened, it served both lunch and
dinner to patrons.
73 According to Interiano, the employees would gather in the TDR
and wait until Kamimura wanted them to start working.
74 Interiano testified that “everyone,” all of his coworkers partici-
pated in these conversations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1382
was over Kamimura in Respondent’s supervisorial hierarchy.75
On another occasion, while working in the second floor
kitchen, Interiano and several other employees were talking
about the lack of a lunch and a break period, and the alleged
discriminatee suggested “we can go together to talk to Gerald
about the [problem] . . . but they say it’s up to me.” Shortly
thereafter, on or about November 27, according to Interiano,
while speaking to Kamimura about what he perceived as Re-
spondent’s failure to pay him for some overtime hours, he
raised the subject of splitting lunch and breaktimes, and Kami-
mura responded that “. . . it is not me. It’s my boss.” Interiano
responded that sometimes employees needed breaks during the
middle of the day. “And he say . . . it’s not me. You’ve got to
understand . . . there’s nothing I can do about it, so let me talk
to Patrick about it, and go back to work.” Interiano reported
back to his coworkers about what Kamimura had said and
raised the possibility of union representation for them or, at
least, all the employees together approaching Kamimura about
changing the lunch and break practice. The alleged discrimina-
tee added that the employees seemed less than enthusiastic
about taking such group action, expressing fears of being fired.
Interiano testified that he and his coworkers often discussed
their complaints, about their lack of lunch and break times and
their jointly-held belief that Respondent was failing to pay for
all overtime hours,76 while they worked and that these conver-
sations, which occurred every day, included discussions about
them going to a “union,” calling “somebody for help,” or going
to “human resources” with their complaints “One time,” ac-
cording to him, Juan Medina overheard such a conversation in a
kitchen and told the employees to “stop it. Just start back to
work.” On another occasion, in the baking area, Medina ap-
proached and, after obviously overhearing the content of the
conversation, said, “. . . I don’t like Las Vegas because, in Las
Vegas, everybody is talking about union, everybody is talking
. . . . That’s why I like Hawaii because . . . nobody say any-
thing . . . about union. Everybody work. In Las Vegas, it’s
different.” Interiano added that, after overhearing employees
discuss union representation another time, Medina used “nasty
language” and said “. . . he didn’t want nobody talk about . . .
help.”77 During cross-examination, asked what employees
were doing when Medina told them to stop talking about a un-
ion and return to work, Interiano denied that he and the other
employees were merely “standing around.” Rather, “we was
working and we was talking . . . about a union because in that
time it was . . . the check was short hours, and I say . . . if the
casino be in the union, this is not going to happen. . . .” When
he heard the mention of a union, Medina said “. . . let’s stop
talking about union business. He say why do we want to talk
about union?”

75 Apparently, Patrick — is one of the partners, who owns the Little
Buddha restaurants.
76 Apparently, employees of the Little Buddha believed that, when-
ever they worked in excess of 8 hours a day, they were entitled to over-
time pay. However, Respondent’s practice was to pay overtime for any
hours worked in excess of 40 hours each week.
77 As Respondent failed to call Medina as a witness, Interiano’s tes-
timony regarding the former’s comments, was uncontroverted.
Interiano further testified that, on or about December 11, he
received another paycheck, which, he believed, failed to cor-
rectly compensate him for the number of overtime hours he had
worked during that pay period. After speaking to Medina, who
disclaimed any responsibility, he spoke to Kamimura about his
perceived problem. After listening to the alleged discrimina-
tee’s complaint, Kamimura replied, “. . . Carlos, you are trou-
ble. You always complain for any reason.” According to Inte-
riano, he also mentioned that many other employees had the
same complaint—Respondent was not paying for all the over-
time hours worked. To this, Kamimura replied, “It’s not your
business. Every time when you talk to me talk about yourself.
They are going to talk to me. It’s not your business.”78 In the
latter regard, Interiano stated that he regularly translated into
English for Spanish-speaking Little Buddha employees,79 who
likewise were complaining about not being paid for perceived
overtime hours,80 when they spoke to Kamimura.81 On these
occasions, according to Interiano, he only served as translator
and did not interject himself into the conversation. During
cross-examination, while reiterating that, when he met with
Kamimura about his own paycheck, he also mentioned the
complaints of other employees, who also believed they had not
been paid for overtime hours which they had worked, Interiano
admitted that he had not been requested by or appointed by his
coworkers to mention their complaints to higher management—
”I do it by myself.”82 Also, during cross-examination, Interiano
said that, sometimes, Kamimura asked him to act as the inter-
preter for employees, who wanted to complain about their pay-
checks, and that these conversations were not always friendly,
with the former becoming “a little upset” regarding the subject
of overtime.
The General Counsel alleges that Respondent unlawfully
discriminated against Interiano by changing his work schedule.
In this regard, Interiano testified that, at the time of his hire, his

78 Kamimura, who was discharged by Respondent as part of its
“downsizing” and has not been replaced, did not testify during the
hearing. According to counsel for Respondent, attempts to serve a
subpoena upon Kamimura, requiring him to testify during the hearing;
were unsuccessful. Accordingly, Interiano’s testimony was uncon-
toverted.
79 These employees included Pedro Monroy, Rosa —, and Jose —.
Monroy corroborated Interiano that the latter interpreted for him when
he spoke to Kamimura. Also, according to Monroy, if Kamimura
wanted to give him instructions about some work-related matter, the
former would ask Interiano to translate “. . . because Gerald liked the
way that he translated because he was very fast.”
80 Although alleged in the complaint, there is no record evidence
that, other than being asked to interpret, Interiano provoked, fomented,
urged, or instigated the employee complaints to Little Buddha man-
agement about perceived paycheck problems. Rather, these appear to
have been individual acts, perhaps precipitated by group discussions in
which Interiano was one of many participants.
81 Employee Monroy testified that Interiano once telephoned him
and said that Juan Medina was accusing him of being the person, who
was urging the workers to complain about their “hours.” Interiano
failed to corroborate this hearsay testimony, and he offered no testi-
mony that Medina made such a comment to him.
82 In this regard, Pedro Monroy denied that he ever requested Interi-
ano to intercede on his behalf with Respondent over Monroy’s claim of
“stolen hours,” for which he had not been paid by Respondent.
PALMS HOTEL & CASINO 1383
days off were Monday and Tuesday of each week and that, in
the third week of his employment, Respondent changed his
days off to Monday and Wednesday.83 On this point, according
to Interiano, Kamimura approached him, “. . . and he [asked]
. . . do you mind if I change your schedule?” Interiano said no
and asked why. Kamimura replied “because Velha, she can’t
make it, and she don’t know how to do the job.”84 In addition,
according to the alleged discriminatee, when he informed the
former of the above change, Kamimura requested that Interiano
do him a favor—“. . . would you please do double batch before
you go . . . home on Sunday, please do double batch for Mon-
day. . . .” Interiano agreed, and, thereafter, on Sundays and on
Tuesdays, he would “. . . do twice in everything and put it in
the cooler.” Asked if Kamimura ever explained why he wanted
Interiano to perform this “double batch,” Interiano replied,
“Because . . . when I’m off, [Velha] don’t know how to do the
job. She don’t know how to do the right job” and “. . . when
Velha is in charge on Monday and Tuesday, they throwed away
everything.”85 During cross-examination, asked if there ever
was a time Kamimura spoke to him about not leaving enough
desserts for the next day, Interiano said, “No. He asked me if I
possibly can make a little bit more because they was out the
day before.” He specifically denied Kamimura saying he made
too few pastries in a day. However, when asked if Kamimura
ever telephoned him at home to say there were not enough des-
serts, Interiano answered, “Yes. One time . . . I don’t remem-
ber the name, it was . . . like a candy, we roll it. And I said no,
I didn’t. . . . He say . . . Just don’t forget to make it tomorrow.”
According to Interiano, the next day, when he reported for
work, he found the candies on a shelf and pointed this out to
Kamimura.
Respondent laid off Interiano on December 23. According
to Interiano, at approximately 11:15 that morning, he observed
Kamimura remove the employees’ work schedule from its
normal posting space. Shortly thereafter, he approached the
alleged discriminatee and said he needed to speak with him
later. Then, at approximately 2:30 p.m., Kamimura beckoned
for Interiano to follow him outside near the hotel elevators.
Interiano followed, and Kamimura informed him that “. . . I
changed the schedule, but I had to. It’s not me. . . . It’s the
new manager. . . . He say Carlos, I’m going to put you on call
for two weeks.” Interiano said “okay,” and Kamimura asked if
he had “a problem” with that. Interiano said no, and Kamimura
said “. . . business is so slow, so please . . . we need to put you
on call for two weeks . . . because it’s Christmas time.”86 The

83 Andrew Pike testified that such was necessary as “. . . having just
one basic baker, you don’t want someone to have two days off and
leave that space with no one in the pastry.” Split days are better, for
“. . . he would take his day, prep, and then take a day. It would be
never more than one day when there wouldn’t be pastry done. . . .”
84 Velha Perdomo was a cook at the Little Buddha. Interiano testi-
fied that he was charged with teaching Perdomo how to bake so she
could do the work when he was off from work. Andrew Pike denied
that Interiano was involved with training Perdomo.
85 Interiano stated that Kamimura was telling him the truth about
Velha as “I saw Velha throw away everything.”
86 The alleged discriminatee was not asked about the logical incon-
sistency in this testimony. Thus, being “on-call” means one will be
alleged discriminatee left to turn in his employee badge and
timecard, returned to the restaurant, approached Kamimura, and
accused the executive chef of firing him. Kamimura denied it
and said “I just put you on call for two weeks.” Interiano asked
if Kamimura would promise to recall him in 2 weeks, and the
former replied, “yes.” Thereafter, on January 6, Interiano re-
turned to the Little Buddha to obtain his last paycheck and ob-
served Medina teaching another baker. The former noticed
Interiano and said hello. Believing he had, in fact, been termi-
nated, Interiano went to the human resources department, spoke
to the manager, Fred Harmon, and asked if he could apply for a
job in a different food outlet at Respondent’s facility. Harmon
replied that he would need a letter from Kamimura as it was
impossible for him to be employed in two different positions at
Respondent’s facility. Interiano then returned to the Little
Buddha, approached Kamimura, and explained what Harmon
had said. Kamimura replied that he would give such a letter to
the human resources department. Subsequently, Interiano
never heard again from Respondent about a job and heard from
another employee in the Little Buddha that Medina said Interi-
ano could not return to work at Respondent’s facility as he had
been fired. During cross-examination, Interiano stated that he
did not know who was doing the baking in the restaurant after
his layoff and that he had no idea if Respondent had another
baker on staff.
With regard to the layoff of the alleged discriminatee, An-
drew Pike, whom Interiano knew as a manager and as a chef
“because he teach me how to do the new recipes, him and
Keith,”87 testified that, upon arriving at the Little Buddha on
November 24 or 25, his initial responsibilities “. . . were to
improve and get the food to how we wanted it to be as in Paris,
so I spent 99 percent of my time in the kitchen, in every aspect
of the kitchen . . . working with the employees . . . to have them
execute [the recipes] in the correct way.” Also, at the time of
its opening, the restaurant hoped to serve lunch and dinner,88
and the employee staffing level was planned for this. However,
according to Pike, the owners soon reached a decision to have
only a dinner service as “they just did not feel . . . it would be
economically viable for us to open for lunch.”89 Given this
decision, the owners realized “we didn’t have enough hours to
give everyone to be fair, so, ultimately, we had to be able to
trim the employee complement.” Therefore, in “mid-

recalled when needed, and such a status is inherently inconsistent with
being laid off for a definite time period.
87 Interiano testified that he worked with Pike every day for “a little
over two weeks” and that Pike taught him how to do “the flambé” and
crème-briolette desserts he had never done before. In contrast to Me-
dina and Kamimura, Interiano never complained to Pike about em-
ployment-related problems as “[He] doesn’t do with nothing about it.
It’s Gerald and Juan Medina. All the schedules and checks is Juan
Medina.” He reiterated that Pike had “nothing” to do with such mat-
ters, and, asked if Pike was more concerned with the quality of the
food, said “right, yes.”
88 This entailed two separate services.
89 Pike testified that the Little Buddha is a “high end” restaurant, and
casino patrons would not pay such high prices or eat that type of food at
lunch.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1384
December,” the decision was reached to cut the staff,90 and
Kamimura, Medina, and Pike were charged with deciding
which employees to lay off. According to Pike, who stated that
he met with Kamimura “every day to discuss downsizing” as it
was their responsibility to accomplish it, of the three managers,
he was the one most familiar with the skill level required of the
staff at a Little Buddha facility. Thus, in the second and third
weeks of December, Jose Acevedo, a prep cook, Ernest Huling,
a pantry chef, George Gonzales, a pantry chef, Sandra Madu-
ena, a prep cook, Genero Hernandez, a prep cook, and Fran-
cisco Ayala, a dishwasher, were laid off.91
Specifically with regard to the layoff of Interiano, Pike, who
knew the alleged discriminatee as the pastry chef, testified that
the latter “. . . was let go due to downsizing . . . also his per-
formance. It was a joint decision made by myself and Gerald
. . . . [Upon my arrival], I had seen the desserts not only being
prepared in the daytime but also at night . . . and they . . .
weren’t prepared properly. They weren’t executed . . . the reci-
pes weren’t followed the way that we had written them out . . .
for the opening of the restaurant.” Therefore, as “pastry was
one of the first things that we needed to work on,” he began
working with Interiano “every day,” training him. However,
Pike did not notice a significant improvement in the alleged
discriminatee’s pastry preparation, for “he had his set ways of
doing things. He’d apparently been doing baking for a while,”
and was “standoffish” to learning our method, “. . . and I just
didn’t believe he had the basic pastry skills . . . you need to
have.” On the latter point, Pike, who trained as a chef for 2
years at the California Culinary Academy and for 2 years at a
facility in Rhode Island, testified that Interiano’s baking skills
were developed from retail store work where baking is rather
“generic” in nature and consists basically of finishing what has
already been “predone.” He added, “I don’t think you need to
be too technically qualified to work as a baker in those types of
places.”92 Thus, in a restaurant, the pastry chef must be profi-
cient at chemical processes and correct temperatures—“It’s a
very technical part of cooking,” and Pike did not believe Interi-
ano “. . . knew many of the processes . . . about chemical reac-
tions and temperatures and just . . . basic knowledge you need
to know.” This type of knowledge was particularly important
in a specialty of the Little Buddha restaurants, a liquid choco-
late cake, “. . . which is a chocolate cake completely baked on
the outside, still liquid in the center, and it’s a very tricky thing
to do. . . .” Also, Pike testified, Interiano appeared to have a
problem following directions; “we would have par numbers for
him, how many he had to make every day . . . he would never
follow those.” He recalled one occasion on which Interiano
was instructed to have “so many chocolate cakes baked.” Pike
left for the day, “. . . and we ran out of cakes that night. . . .

90 According to Pike, “. . . the owner wanted to reduce staff by
minimum at least 30 percent . . . within a two-week period,” and he
tried to follow instructions “as closely as we could.”
91 The stated reason for each layoff was “business slow,” and, ac-
cording to Pike, the layoffs were permanent. Interiano confirmed that a
series of layoffs occurred prior to his.
92 According to Pike, in a retail store, a baker is merely assembling
and finishing a product; while, in a restaurant, “we do every thing from
scratch fresh.”
The next day he was reprimanded and he was also told . . . by
myself.” Interiano failed to specifically deny the occurrence of
such an incident.
Pike believed that Interiano should have been laid off be-
cause he was making “no progress” in learning baking tech-
niques and “. . . didn’t really want to take direction.” As a re-
sult, according to Pike, the Little Buddha had “major problems”
with pastry work. Also, Pike believed that another cook, Cesar
Cardena, would become a better pastry chef than Interiano. In
Cardena, “we had someone else . . . who could do the job much
better than [Interiano] could. He had a much stronger knowl-
edge of pastry, much more forthgiving and working well with
. . . people. . . .”93 Pike testified that, at the time of Interiano’s
layoff, he had become familiar with Cardena’s work, and “I can
talk to someone and I can pretty much decipher if they know
what they are talking about . . . when it comes to food. It’s kind
of a technical thing, and he would tell me things that were
wrong . . . and I would say absolutely.” Further, in contrast to
Interiano and his baking experience, “I was familiar with a
couple of restaurants [Cardena] worked at and they have nice
pastries. I was impressed”94 and asked Cardena to “do some
baking,” according to Pike, “. . . he’d do a lemon tart. He’d do
a chocolate cake. He’d give me ideas on his own for specials,
and . . . once I saw and tasted his work, it was no thought
really. I knew right away I had a better candidate to do pastry
than Mr. Interiano.”95 Finally, Pike testified that, if the Little
Buddha had continued with a lunch service, the alleged dis-
criminatee would not have been laid off96 “because we would
have needed him as well,” but, if he had continued showing a
lack of improvement, “eventually” he would have been dis-
charged.
As with the discharge of Martin Perez, the credibility of the
witnesses is a significant factor in determining whether, as
alleged by the General Counsel, Respondent unlawfully
changed the work schedule of and, subsequently, laid off its
employee, Carlos Interiano, in violation of Section 8(a)(1) of
the Act. In this regard, both Carlos Interiano and Andrew Pike
impressed me as being frank and reliable witnesses; however,
as between them, I found Pike to have been more convincing.
Accordingly, while I shall rely upon the testimony of each
where uncontroverted, whenever they conflict, I shall upon

93 Pike testified that it took him just 4 or 5 days to observe that Inte-
riano lacked significant pastry skills and that he decided Cardena was
qualified to do the work “a little bit later” after he baked some pastries
at Pike’s behest.
94 Prior to working for Respondent, Cardena had been a chef at
Smith & Wollensky, a famous New York City restaurant, with a facility
in Las Vegas.
95 According to Pike, Cardena remains as the pastry chef at the Little
Buddha restaurant.
96 Pike confirmed Interiano’s testimony that the latter had been
placed on on-call status by Kamimura and was eligible for recall if
business had increased. However, he did not believe Kamimura would
have told Interiano he would be recalled in 2 weeks as the executive
chef “. . . wouldn’t know when the business [would permit him to be
recalled].” Also, according to Pike, he spoke to Interiano about his
status subsequent to his layoff, and Interiano “. . . said I prefer to be
terminated and seek employment elsewhere in the hotel.” Interiano
failed to deny Pike’s testimony.
PALMS HOTEL & CASINO 1385
Pike’s version of events in determining what occurred herein.
Initially, the General Counsel alleges that Respondent engaged
in conduct, violative of Section 8(a)(1) of the Act, by prohibit-
ing Interiano from concertedly complaining to Medina and to
Kamimura abut overtime pay and the lack of break periods.
Although unclear, this allegation presumably concerns an inci-
dent one day during the employees’ working time. According
to the candid and uncontroverted testimony of Interiano, while
Interiano and other Little Buddha employees were speaking
about them going to a union or to Respondent’s human re-
sources department for help with their complaints about the
lack of breaks and shortages in their overtime pay, Juan Medina
approached and instructed the employees to “stop it. Just start
back to work.” I agree with counsel for Respondent that work-
ing time is for work; however, there is no evidence that, at the
time Medina made his comment, the kitchen employees were
not, in fact, performing their required job duties. Indeed, Inte-
riano was uncontroverted that the employees were not merely
“standing around,” and counsel cites no work rule, prohibiting
employees from talking while performing their jobs. Clearly,
Interiano and his coworkers were engaged in protected con-
certed activities, discussing their group concerns regarding their
working conditions and possible group actions to change them.
The record evidence establishes that Medina was well aware of
the employees’ discontent with the restaurant’s break and lunch
practices and, as will be discussed, had exhibited antipathy for
the concept of union representation or any type of group action
by the employees. In these circumstances, he was not merely
exhorting employees to perform their job duties; rather, in
agreement with counsel for the General Counsel, I believe Me-
dina actually promulgated a rule, prohibiting the Little Buddha
employees from discussing their working conditions, an inher-
ently protected concerted activity. Accordingly, Medina’s
comment was violative of Section 8(a)(1) of the Act. Auto-
matic Screw Products Co., 306 NLRB 1072, 1072 (1992).
The General Counsel next alleges that Respondent violated
Section 8(a)(1) of the Act by disparaging employees for engag-
ing in protected concerted activities. In this regard, I credit
Interiano’s frank and uncontroverted testimony that, one day,
while he and other employees were discussing their complaints
about being short payment for their hours worked and seeking
union representation for help, Medina approached and, obvi-
ously overhearing the content of the discussion, stated that he
did not like Las Vegas because everyone spoke about union
representation; while, in Hawaii, rather than concerning them-
selves with union representation, “everybody work” and “no
one say anything . . . about unions.” While I disagree with
counsel for Respondent’s characterization of the employees’
actions as “constant non-work related chatter” and note that
Respondent’s employees’ discussions constituted protected
concerted activities—conduct which should not be trivialized as
mere “chatter,” Section 8(c) of the Act gives employers the
right to express their views about unionization or a particular
union as long as those communications do not threaten reprisals
or promise benefits. Poly-America, Inc., 328 NLRB 667, 669
(1999). Here, Medina was merely sharing with the kitchen
employees his own negative views of union discussions, and, as
his comments contained no threats or promises, they were not
violative of Section 8(a)(1) of the Act. Id. Accordingly, I shall
recommend dismissal of paragraph 5(c)(2) of the complaint.
Turning to the complaint allegations that, by changing Interi-
ano’s days off schedule and by laying him off, Respondent
engaged in acts and conduct violative of Section 8(a)(1) of the
Act,97 Board law is clear that I am required to analyze and de-
cide these matters, utilizing the Wright Line, supra guidelines.
Alldata Corp., 327 NLRB 127, 129 (1998); Hacienda De Sa-
lud-Espanola, 317 NLRB 962 fn. 2 (1995); Manimark Corp.,
307 NLRB 1059 (1992), reversed on other grounds 7 F.3d 547
(6th Cir. 1993). At the outset, Respondent does not dispute,
and I find, that, at the time of his hire, Interiano’s scheduled
days off were Monday and Tuesday of each week; that, in the
third week of November, Respondent changed his scheduled
days off to Monday and Wednesday of each week; and that,
concomitant with changing his days off schedule, Respondent
required Interiano to make a “double batch” of pastries on the
day prior to each off day. Further, Respondent does not dispute
that it laid off Interiano on or about December 23. With regard
to the former allegation, counsel for Respondent initially con-
tends that his client engaged in no act, which may be found
unlawful as, given the change in Interiano’s work hours was
“minor,” he exhibited no resistance in accepting the change,
and there is no record evidence that he was forced to work
harder, the General Counsel failed to show any adverse impact
upon Interiano. While it may be true that Respondent’s change
of Interiano’s work schedule had no adverse effect upon him,
such is not determinative with regard to whether an unfair labor
practice had been committed. Rather, the sole issue is whether
Respondent’s conduct was motivated by Interiano’s protected
concerted activities. If so, no matter how inconsequential the
act may appear, an unfair labor practice must be found. Thus,
in Marriott In-Flight Services, 249 NLRB 496 (1980), the al-
leged unlawful act was the respondent’s instruction to an em-
ployee to no longer perform his job duties after lunch and al-
ways to return to the respondent’s facility and remain there
until his work shift ended. There was no record evidence of
adverse impact upon the alleged discriminatee,98 and the sole
issue, for the Board, appears to have been the respondent’s
motivation. Id. at 501. Accordingly, counsel’s argument is
rejected.
As to whether the General Counsel has established that Re-
spondent changed Interiano’s days off schedule and, subse-
quently, laid him off because he engaged in protected concerted
activities, I must initially determine whether he, in fact, en-
gaged in protected concerted activities. As to this, crediting
Interiano, I find that he engaged in numerous and extensive
discussions with coworkers regarding Respondent’s policy,
requiring Little Buddha employees to take their combined
lunch and break periods after clocking in but prior to actually
commencing work, Respondent’s perceived failure to pay over-

97 In their posthearing brief, Counsel for the General Counsel mis-
takenly state that Respondent’s change of Interiano’s days off was
allegedly violative of Sec. 8(a)(1) and (3) of the Act.
98 In fact, only the respondent was adversely affected as the alleged
discriminatee performed “useful work,” of which the former deprived
itself by its actions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1386
time for all hours worked, and their need for either representa-
tion by a labor organization or a group meeting with Respon-
dent’s human resources department; that, after he suggested the
employees should together confront Gerald about their working
conditions, “. . . they say it’s up to me;” and that, as a result, on
November 27, while discussing his own paycheck, he raised the
above-described group complaints to Kamimura, who dis-
claimed responsibility. Also, crediting Interiano I find that,
either at the behest of coworkers or Kamimura, who apparently
liked the way Interiano translated, the alleged discriminatee
interpreted for coworkers when they complained to Kamimura
about perceived shortages in their paychecks for their hours
worked. Finally, Interiano was uncontroverted, and I find, that,
on December 11, while again complaining to Kamimura about
perceived shortages in his own paychecks, he mentioned co-
workers who had identical or, at least, similar complaints—
Respondent was not paying for all the overtime hours, which
they worked—and that Kamimura responded, saying it was
none of Interiano’s business, he should only talk about himself,
and, if they desired to do so, the other workers would approach
him with their own complaints. There can be no doubt that
Interiano’s discussions with his coworkers regarding their terms
and conditions of employment, particularly their lack of a lunch
and other breaktime during the workday and their common
complaints about Respondent’s perceived weekly failure to pay
for all overtime hours worked, and the potential need for or the
possibility of union representation or group action as a remedy
constitute the essence of protected concerted activities. Guard-
ian Industries Corp., 319 NLRB 542, 549 (1995); Automatic
Screw Products, supra.99
With regard to whether, Interiano likewise engaged in con-
certed activities when, at the urging of his coworkers, he raised
the matter of the employees’ lack of lunch and other break pe-
riods during the workday with Kamimura on November 27, and
whether he engaged in concerted activities when, while com-
plaining about his own paycheck on December 11, he also men-
tioned other employees’ complaints about their paychecks,
Board law is more complicated. Thus, in Meyers Industries
(Myers I), 268 NLRB 493, 497 (1984), a matter involving the
discharge of an employee, who, acting on his behalf but with
regard to a matter of common concern amongst the respon-
dent’s employees, had complained about the respondent to a
state safety agency, the Board stated, “In general, to find an
employee’s activity to be ‘concerted,’ we shall require that it be
engaged in, with, or on the authority of other employees, and
not solely by and on behalf of the employee himself. Once the
activity is found to be concerted, an 8(a)(1) violation will be
found if, in addition, the employer knew of the concerted nature
of the employee’s activity, the concerted activity was protected
by the Act, and the adverse employment action at issue (e.g.
discharge) was motivated by the employee’s concerted activ-
ity.” Subsequently, in Meyers Industries (Meyers II), 281

99 I make no finding as to whether Interiano engaged in concerted ac-
tivities when he acted as an interpreter for Spanish-speaking Little
Buddha employees when they complained about perceived shortages in
their paychecks to Kamimura. In this regard, Interiano stated that he
only translated and took no part in the conversations.
NLRB 882, 887 (1986), the Board considered whether its test
for concerted activity would protect an individual’s efforts to
induce group action and concluded, “We reiterate our definition
of concerted activity . . . encompasses those circumstances
where individual employees seek to initiate or to induce or to
prepare for group action, as well as individual employees bring-
ing truly group complaints to the attention of management.”
Later, attempting to elucidate regarding whether apparent indi-
vidual actions may be found concerted, the Board stated, in
Amelio’s, 301 NLRB 182, 182 fn. 4 (1991), that it would “. . .
find that an individual is acting on the authority of other em-
ployees where the evidence suggests a finding that the concerns
expressed by the individual employee are a logical outgrowth
of the concerns expressed by the group.” This holding was
explicitly affirmed in Midland Hilton & Towers, 324 NLRB
1141, 1141 (1997), wherein the Board noted that “. . . an em-
ployee need not be expressly ‘appointed’ or ‘nominated’ as
spokesman in order for his or her actions to be found con-
certed.” Further, in KNTV, 319 NLRB 447, 450 (1995), the
Board held that while “an employee’s activity will be deemed
concerted when it is engaged in with or on the authority of
other employees and not solely by and on behalf of the em-
ployee himself,” concerted activity also “. . . encompasses ac-
tivity which begins with only a speaker and listener, if that
activity appears calculated to . . . relate to some kind of group
action.” Synthesizing these rulings of the Board, it appears
that, in order to find that an individual is engaging in concerted
activities, he or she must be acting with the authorization of
other employees; however, in the absence of direct evidence, an
inference of such authorization may be drawn when the indi-
vidual is bringing clearly group concerns to the attention of
management.100 Applying this principle to instant fact matrix, I
find that, on November 27, when he raised the matter of the
Little Buddha employees’ complaint regarding the lack of a
lunch and other break periods during the workday to Kami-
mura, not only were the said working conditions of common
concern to the employees but also, based upon the employees’
injunction that it was up to him to express their concerns, Inte-
riano acted with the explicit authorization of his coworkers
when he discussed this complaint with Kamimura and that,
therefore, Interiano’s actions constituted protected concerted
activities. Midland Hilton Hotel & Towers, supra, at 1141;
KNTV, Inc., supra, at 450–452.
In contrast, there is no direct evidence that, when Interiano
met with Kamimura on or about December 11 concerning his
own paycheck, any of his coworkers had authorized him to
raise their complaints, regarding perceived shortages in their
own paychecks, with the Little Buddha’s executive chef. Fur-
ther, given that Interiano admitted that he acted on his own
volition in mentioning the similar complaints of other employ-
ees and that his coworker, Pedro Monroy, specifically denied
having authorized the alleged discriminatee to raise this com-

100 In this latter regard, the Board is directly at odds with the United
States Court of Appeals for the Sixth Circuit, which holds that, in order
to find concerted activities, there must be a showing of a connection
between the shared concerns of the employees and the individual’s
reiteration of them to management. Manimark Corp., supra, at 550.
PALMS HOTEL & CASINO 1387
plaint with management, notwithstanding that the matter was
obviously a group concern, I doubt that the record would war-
rant the drawing of an inference that Interiano possessed such
authorization. However, I do believe that the record warrants
the inference that, on this occasion, Respondent, through
Kamimura, perceived Interiano as encouraging other Little
Buddha employees to present their complaints to management
and as acting concertedly with the authorization of his co-
workers. In this regard, I note that the alleged discriminatee
had previously confronted Kamimura with the Little Buddha
employees’ complaint about the lack of lunch and breaks dur-
ing the workday, that Interiano regularly acted as an interpreter
for Spanish-speaking employees, who complained to Kami-
mura about perceived shortages in their paychecks and that,
when, during their December 11 conversation, Interiano raised
the similar complaints of his coworkers, Kamimura reproached
him, saying “they are going to talk to me. Its not your busi-
ness.” From the foregoing, I believe that Kamimura had ample
reason to believe that more employees, than just Interiano, were
protesting their working conditions and that, therefore, Interi-
ano was engaged in protected concerted activities when he
spoke to Kamimura on December 11. Alldata Corp., supra, at
131; Arthur Young & Co., supra at 43; Oakes Machine Corp.,
288 NLRB 456, 456 (1988).
Having concluded that Interiano had engaged in protected
concerted activities, I also conclude that Respondent was aware
of, or perceived that, he was engaging in such activities and that
Respondent harbored animus against Interiano because of his
actions. In these regards, I have found that Interiano directly
confronted Kamimura about the Little Buddha employees’
complaints concerning their working conditions, specifically
Respondent’s practice of requiring the kitchen employees to
take their lunch and breaktimes prior to commencing to work
and Respondent’s perceived failure to pay the employees for all
their overtime hours. I have also found that Kamimura cer-
tainly believed that Interiano’s complaints reflected the com-
plaints of many other employees. Moreover, I find that, on
December 11, as Interiano began speaking to him, Kamimura
admonished him—”Carlos, you are trouble. You always com-
plain for any reason.” In my view, the executive chef’s rebuke
was directly related to Interiano’s protected concerted activities
and patently demonstrated Respondent’s animus against him
for his actions. In these circumstances, I believe that the Gen-
eral Counsel has presented a prima facie case pursuant to
Wright Line regarding both Respondent’s change of Interiano’s
days off schedule and its layoff of the alleged discriminatee.
The burden then shifted to Respondent to establish that it
would have changed Interiano’s days off schedule and, subse-
quently laid him off notwithstanding its unlawful animus
against him. Initially with regard to the former, I note that, at
the time of the change in Interiano’s days off schedule, he was
the Little Buddha’s only baker and that, by his own admission,
Velha Perdomo, the individual who was responsible for baking
during his 2 days off, performed the job so miserably that Re-
spondent was forced to throw away the desserts, which she
prepared. Further, I credit Andrew Pike and find that “. . . hav-
ing just one basic baker, you don’t want someone to have two
days off and leave that space with no one in the pastry” and that
split days are preferable, for “. . . he would take his day, prep,
and then take a day.” Moreover, while, at the hearing, counsel
for the General Counsel stated that it was Respondent’s re-
quirement that Interiano do a “double batch” of pastries prior to
each day off, Pike credibly explained that such was necessary
as “it would be never more than one day when there wouldn’t
be pastry done. . . .” In this regard, I note that Interiano, who
clearly understood Respondent’s problem with Perdomo, never
objected to being required to prepare pastries for each day off.
Based upon the foregoing, I believe that Respondent’s change
of Interiano’s days off schedule represented nothing more than
a necessary business decision and that, therefore, Respondent
has met its burden of proof under Wright Line. Accordingly, I
shall recommend dismissal of paragraph 5(d) of the complaint.
As to Respondent’s layoff of Interiano, I again credit Pike,
who was uncontroverted, and find that, a few weeks after the
Little Buddha opened, its owners decided that it would not be
“economically viable” to be open each day for lunch and din-
ner; that, as a result, in mid-December, the owners decided that
the employee complement had to be reduced; that Kamimura,
Medina, and him were charged with deciding which employees
to lay off; that, of the three managers, he was the one most
familiar with the skill level required of the chefs and cooks at
the Little Buddha; and that, in accord with its effort to down-
size, in the second and third weeks of December, Respondent
laid off three cooks, two chefs, and a dishwasher from the Little
Buddha. Further, crediting Pike, I find that Respondent laid off
Interiano due to its need to reduce its staffing level and his
performance; that, based upon the alleged discriminatee’s ex-
perience, which consisted of generic baking jobs with Yum
Yum doughnuts and a supermarket chain, and his lack of
knowledge about, and proficiency at, the technical aspects of
baking, including chemical processes and temperatures, Pike
did not believe Interiano possessed the skills necessary to a
pastry chef at a high end restaurant, such as the Little Buddha;
and that, unlike Interiano, another Little Buddha cook, Cesar
Cardena, did impress Pike as possessing the knowledge and
skill level necessary to perform high-end baking; and that, ac-
cording to Pike, “I knew right away I had a better candidate to
do pastry than Mr. Interiano”; and that, therefore, he decided to
retain Cardena as the Little Buddha pastry chef. Finally, I spe-
cifically credit Pike that Interiano would not have been laid off
had the Little Buddha continued with its lunch service. Based
upon the foregoing, it is clear to the undersigned that Pike
reached a business decision to lay off the alleged discriminatee
and, as, in the absence of contrary evidence, I believe his deci-
sion should be accorded deference, I believe Respondent has
met its burden under Wright Line. Accordingly, I shall recom-
mend dismissal of paragraph 5(e) of the complaint.
C. Respondent’s Confidentiality and Standards
of Conduct Rules
Since its grand opening on November 17, 2001, Respondent
has maintained a confidentiality rule and standards of conduct
rules in its team member guide, which is distributed to all
newly hired employees. The instant complaint alleges that the
confidentiality rule and three standards of conduct rules are
facially violative of Section 8(a)(1) of the Act. The Board’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1388
framework for determining the legality of such provisions is
found in Lafayette Park Hotel, 326 NLRB 824, 825 (1998): “In
determining whether the mere maintenance of rules such as
those at issue here violates Section 8(a)(1), the appropriate
inquiry is whether the rules would reasonably tend to chill em-
ployees in the exercise of their Section 7 rights. Where the
rules are likely to have a chilling effect on Section 7 rights, the
Board may conclude that their maintenance is an unfair labor
practice, even absent evidence of enforcement.”
Respondent’s confidentiality provision reads as follows:
A key part of our success in the competitive casino re-
sort industry is the confidential nature of our company’s
operational, financial and business affairs and activities. If
you have access to information of that nature during your
employment with the Palms Casino Resort, you are re-
sponsible for protecting the confidentiality of that informa-
tion and not revealing, distributing or discussing such mat-
ters with outsiders or non-privileged Team Members.
This information includes, but is not limited to: cus-
tomer or marketing lists or strategies, financial informa-
tion, computer files or programs, recipes, personnel files,
policies and procedures. . . .
If you violate this policy, you may be subject to disci-
plinary action up to and including separation. . . .
Counsel for the General Counsel argues the above-quoted
provision is violative of Section 8(a)(1) of the Act, on its face,
inasmuch as the prohibition, against discussion of Respondent’s
“policies and procedures” with “outsiders” or “non-privileged”
team members, may be reasonably construed so as to preclude
employees from discussing information pertaining to their
terms and conditions of employment, including their own
wages and other employees’ wage rates, with coworkers or a
labor organization. According to Fred Harmon, whose testi-
mony was uncontroverted and who was responsible for formu-
lating and drafting all of Respondent’s personnel policies and
practices, including those at issue herein, testified that the fore-
going provision was “taken” from and “combined” with several
similar provisions, found in the hotel and casino industry and
that the term “polices and procedures,” set forth in the second
paragraph, refer to “operational policies and procedures. The
first sentence [of the first paragraph] says a key part of our
success in the competitive casino resort industry is the confi-
dential nature of our company’s operational, financial, and
business affairs and activities. That’s specifically why that
statement was written and this policy was developed.” He spe-
cifically denied that the rule prohibits discussion of employees’
wages and benefits; “. . . on the contrary, the company is very
active in communicating those things to the public from a re-
cruiting standpoint.” On this point, Harmon noted that wages
and other fringe benefit information is published by Respon-
dent in newspaper classified advertisements, and, in interviews
prior to the opening of Respondent’s facility, he discussed “our
wages and benefits. I did a morning show where I actually took
in lists of our benefits as well as our wages and shared them on
public television.” Also, according to Harmon, he gave Las
Vegas newspapers copies of employment brochures, which
outlined Respondent’s benefits plans. Finally, while denying
that any employee has ever been disciplined for divulging con-
fidential information, including wage rates and benefit plans,
Harmon admitted that Respondent has never instructed em-
ployees on how to enforce the confidentiality provision.
Contrary to the General Counsel, I do not view Respondent’s
confidentiality provision as being violative of Section 8(a)(1) of
the Act so as to prohibit Respondent’s employees from discuss-
ing their terms and conditions of employment amongst them-
selves or with a labor organization. Thus, in arguing that the
confidentiality provision is facially unlawful, counsel for the
General Counsel rely upon two recent decisions of the Board—
Iris U.S.A., Inc., 336 NLRB 1013 (2001), and University Medi-
cal Center, 335 NLRB 1318 (2001); however, analysis of both
discloses that, while said decisions involve confidentiality pro-
visions, which are nearly identical to each other, they are dis-
crepant with the confidentiality provision at issue herein and
that, therefore, the decisions are inapposite. In this regard, Iris
U.S.A., Inc., and University Medical Center concern alleged
unlawful confidentiality provisions, which essentially prohib-
ited the disclosure of confidential information concerning “em-
ployees,” and, in the latter decision, adhering to clear prece-
dent, the Board held that such a rule “. . . is unlawfully broad
because it could reasonably be construed by employees to pro-
hibit them from discussing information concerning terms and
conditions of employment, including wages, which they might
reasonably perceive to be within the scope of the broadly-stated
category of ‘confidential information’ about employees.” Uni-
versity Medical Center, supra at 1322; Flamingo Hilton-
Laughlin, 330 NLRB 287, 288 (1999); Pontiac Osteopathic
Hospital, 284 NLRB 442, 445–446 (1987). In contrast, Re-
spondent’s confidentiality provision prohibits the disclosure of
its “policies and practices,” and, in my view, as the listed items
in the rule, which precede policies and practices as items pre-
cluded from disclosure, include customer or marketing lists or
strategies, financial information, computer files or programs,
recipes, and personnel files, employees would reasonably un-
derstand that what Respondent desires to maintain as confiden-
tial is proprietary business information and that they are not
precluded from, for example, disclosing their wage information
to banks, credit unions, or like financial institutions or to co-
workers or labor organizations. Lafayette Park Hotel, supra, at
826. While counsel for the General Counsel are correct in stat-
ing that an employer may not lawfully prohibit its employees
from discussing their wages and that the words “policies and
practices” are not defined by Respondent in its confidentiality
rule, the rule does not expressly prohibit employees from dis-
cussing their wages, wage rates, or other terms and conditions
of employment with each other or with a labor organization or
forbid conduct, which clearly implicates Section 7 rights.101

101 This fact distinguishes this matter from other Board decisions, in-
volving confidentiality provisions, which either prohibited discussion
of specific terms and conditions of employment or forbade conduct that
clearly implicated Sec. 7 rights. Thus, in Kinder-Care Learning Cen-
ters, 299 NLRB 1171 (1990), the confidentiality provision expressly
prohibited discussion of conditions at facilities and employees’ terms
and conditions of employment; in Waco, Inc., 273 NLRB 746 (1984),
the confidentiality provision prohibited the discussion of wages; and in
PALMS HOTEL & CASINO 1389
That Respondent’s rule does not preclude discussion of wages
or benefits as seen from the fact that Respondent itself pub-
lishes information, pertaining to its wage rates and employee
benefits, in newspaper classified advertisements, and, as it is
reasonable to assume that many employees have applied for
jobs with Respondent based upon such advertising, they would
reasonably know that the confidentiality provision does not
pertain to wage rates or benefits or preclude them from discuss-
ing such information with their coworkers. Moreover, the fact
the Respondent’s confidentiality proviso has never been en-
forced to prohibit employees from discussing their terms and
conditions of employment reinforces this view of its meaning.
Super K-Mart, 330 NLRB 263, 263 (1999). Finally, given the
wording of Respondent’s confidentiality provision, a finding
that it has a chilling effect upon the employees exercise of their
Section 7 rights would depend upon a concatenation of infer-
ences, including that employees would infer that the reference
to policies and practices, in the context of the entire rule, re-
ferred to their terms and conditions of employment, and that
employees would further infer the ban on disclosure of this
material to “outsiders” and “non-privileged” team members
encompassed their coworkers and a labor organization. Safe-
way, Inc., 338 NLRB 525, 527 (2002). In my view, this
amounts to mere speculation, and, accordingly, I shall recom-
mend dismissal of paragraph 5(a)(1) of the complaint. Super
K-Mart, supra; Lafayette Park Hotel, supra.
As stated above, the complaint alleges that three of Respon-
dent’s published standards of conduct rules, for which an em-
ployee’s failure to adhere “will be subject to coaching up to and
including separation of employment,” are facially violative of
Section 8(a)(1) of the Act. Standard of conduct rule 10 forbids
employees from engaging in “any type of conduct, which is or
has the effect of being injurious, offensive, threatening, intimi-
dating, coercing, or interfering with fellow Team Members or
patrons,” and counsel for the General Counsel argue that it “. . .
potentially prohibits protected speech” and that the “language”
of the provision “. . . is indiscriminate and could reasonably
chill [employees] in exercising their Section 7 rights.” In this
regard, counsel points to Martin Perez’ union solicitation of
Ernestina Guerrero, to the latter’s claim she felt bothered by
Perez’ conduct, and to executive chef Okashige’s assertion that
Perez had harassed Guerrero. In support of their argument,
counsel relies upon three Board decisions—Lafayette Park
Hotel, supra (rule against “making false, vicious, profane, or
malicious statements toward or concerning the [hotel] or any of
its employees”); Cincinnati Suburban Press, 289 NLRB 966
(1988) (rule prohibiting “false, vicious, or malicious statements
concerning any employee, supervisor, the company, or its
product”); and Great Lakes Steel, 236 NLRB 1033 (1978) (rule
prohibiting distribution of literature which was “libelous, de-
famatory, scurrilous, abusive or insulting or any literature
which would tend to disrupt order, discipline or production
within the plant”), in which the Board found similar rules fa-
cially violative of Section 8(a)(1) of the Act. In Lafayette Park
Hotel, supra, at 828, the Board noted that the wording of the

Ingram Book, 315 NLRB 515 (1994), the confidentiality provision
prohibited distribution of literature.
hotel’s rule failed to define the area of permissible conduct in a
manner clear to employees and, therefore, would cause them to
refrain from engaging in protected activities. Likewise, in
Flamingo Hilton-Laughlin, 330 NLRB 287 (1999), the Board
determined the legality of a rule, nearly identical to that main-
tained by Respondent, which prohibited “disorderly conduct in
the hotel, including . . . threatening, insulting, abusing, intimi-
dating, coercing, or interfering with any guests, patrons, or
employees,” and concluded that the rule violated Section
8(a)(1) of the Act as the words were undefined and could rea-
sonably be interpreted as barring lawful organizing activity. Id.
at 295.
With regard to rule 10, Fred Harmon testified that its purpose
is to “. . . provide an environment that is free of [the enumer-
ated acts and conduct] for our team members as well as for our
guests,” and, in arguing that the rule is lawful, counsel for Re-
spondent relies upon the decision of the United States Court of
Appeals for the District of Columbia Circuit in Adtranz AAB
Daimler-Benz, 331 NLRB 291 (2000), rev’d 253 F.3d 19 (D.C.
Cir. 2001). At issue in that matter was a work rule, prohibiting
“abusive or threatening language to anyone on Company prem-
ises,” and the Board adopted the administrative law judge’s
decision that said rule violated Section 8(a)(1) of the Act on its
face as it failed to define the stated misconduct and, therefore,
could reasonably be interpreted as barring lawful union orga-
nizing propaganda. The District of Columbia Circuit reversed,
stating that “. . . it is preposterous that employees are incapable
of organizing a union or exercising their other statutory rights
. . . without resort to abusive or threatening language.” 253
F.3d at 322. In so ruling the court rejected the Board’s conten-
tion that organizing campaigns are heated and often spawn
intemperate language, which should not be stripped of its pro-
tected status, stating “America’s working men and women are
as capable of discussing labor matters in intelligent and gener-
ally acceptable language as those lawyers and government em-
ployees who now condescend to them.” Moreover, the court
noted that the Board itself in Atlantic Steel Co., 245 NLRB 814
(1979), has held that an employee, who is engaged in protected
activities, may lose the protection of the Act if he or she en-
gages in opprobrious conduct. Further, the court noted that the
Board’s view is “remarkably indifferent” to the plight of em-
ployers, who are subject to civil liability for failure to maintain
a workplace free from various forms of harassment, including
abusive language. 253 F.3d at 323. Utilizing the court’s deci-
sion as support, counsel argues that the language of rule no. 10
was never meant to chill employees’ Section 7 rights; rather it’s
intent was to establish a “comfortable, harassment-free work-
place” for all employees.
Subsequent to Adtranz AAB Daimler-Benz, the Board issued
its decision in University Medical Center, supra, wherein it held
violative of Section 8(a)(1) of the Act an employer handbook
provision, prohibiting “insubordination . . . or other disrespect-
ful conduct towards a service integrator, service coordinator, or
other individual.” Noting that concerted employee protests of
supervisory conduct and employee solicitations of union sup-
port from other employees are protected activities under Sec-
tion 7 of the Act and that nothing in the language of the provi-
sion addressed a legitimate business concern and stating its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1390
reliance upon Lafayette Park Hotel, supra, the Board found that
such activities may reasonably be understood by employees as
being prohibited by the above rule and, therefore, the provision
had a chilling effect upon Section 7 rights. Id. at 1321–1322.
Further, the Board noted that, in Adtranz AAB Daimler-Benz,
253 F.3d at 25, the court specifically stated that it would en-
force rulings, which “faithfully” adhere to the former’s Lafay-
ette Park Hotel, supra, standard and explained that “there are
degrees of unwanted overtures,” and “. . . defining due respect,
in the context of union activity, seems inherently subjective.”
Id. at 1321. Continuing, the Board stated that an employee,
who is being subjected to “vigorous proselytizing” for or
against a union, which he preferred to avoid or which reflected
a view opposed to his, “. . . might well feel that he was being
treated with a lack of respect, even if he did not feel threatened
or abused” and that the respondent’s rule had been violated by
said conduct and he could report it. Finally, the Board noted
that employees may believe that the rule acts as a shield against
all expressions of unwelcome views, including union promo-
tions and solicitations.
In determining whether Respondent’s standards of conduct
rule 10 is facially violative of Section 8(a)(1) of the Act, in-
stead of applying tortured analysis, which adumbrates rather
than elucidates, I think the best, most expeditious test for de-
termining the legality for such a provision is use of a rule of
reason, which simply inquires whether a reasonable employee
would understand the work rule’s language as chilling his right
to engage in activities, privileged by Section 7 of the Act? At
the outset, I am cognizant that, in today’s litigious environment,
employers subject themselves to substantial civil liability for
failing to maintain workplaces free of racial, sexual, ethnic, and
other forms of harassment and that employers must be able to
protect themselves with carefully drafted work rules. However,
if such rules conflict with the policies and purposes of the Act
and impinge upon employees’ Section 7 rights, the latter are
paramount, and even the most carefully drafted work rules may,
in fact, be unlawful. In this regard, I note that its language of
Respondent’s rule is far broader than the rules at issue in Ad-
tranz AAB Daimler-Benz or in University Medical Center, as,
rather than just “abusive or threatening language,” or “insubor-
dination . . . or other disrespectful conduct,” rule 10 prohibits
any conduct “. . . which has the effect of being injurious, offen-
sive, threatening, intimidating, coercing, or interfering with
fellow Team Members or patrons.” Applying a rule of reason,
it is apparent that the words “injurious” and “offensive” are
redolent of ambiguity. Thus, whether acts are “injurious,”
which the Merriam-Webster dictionary defines as damaging or
hurtful, and “offensive,” which the same dictionary defines as
aggressive, obnoxious, or insulting, is inherently subjective and
involves degrees of “unwanted overtures,” and, clearly, the
identical conduct may be hurtful or insulting to one individual
but not to another. Id. at 1321. Moreover, Respondent’s work
rule does not prohibit acts or speech, which are intrusive, disre-
spectful, or discourteous,102 and it is not “condescend[ing]” to

102 Thus, Ernestina Guerrero did not wish to be “bothered” by Martin
Perez’ union solicitations and questions. That Respondent transformed
her discomfort into harassment demonstrates the danger inherent in
this country’s working men and women to find, as I do, that
employees would experience difficulty in distinguishing be-
tween conduct, which is hurtful or insulting—prohibited under
Respondent’s work rule—from conduct, which is merely disre-
spectful or discourteous—presumably permissible under Re-
spondent’s rule. Further, while I believe that any employee
would reasonably understand what would constitute threaten-
ing, intimidating, or coercive conduct, or acts, which interfere
with other employees’ rights not to engage in such activities,
and that employees are eminently capable of conducting union
organizing without engaging in such misconduct, I also believe,
given the degrees of sensitivity inherent in the terms, that em-
ployees reasonably may not be able to vigorously solicit or
proselytize for a union or engage in protected concerted activi-
ties—or effectively tailor their conduct—without risking of-
fending or acting injuriously toward their coworkers. In these
circumstances, while the “plight” of employers, phobic about
the possibility of lawsuits, is a concern, I agree with counsel for
the General Counsel that the amorphous nature of the language
of Respondent’s rule has the effect of chilling its employees in
the exercising of their Section 7 rights, and, therefore, I believe
Respondent’s standards of conduct rule 10 is facially violative
of Section 8(a)(1) of the Act. University Medical Center, su-
pra, Flamingo Hilton-Laughlin, supra.
Next, the General Counsel alleges that Respondent’s stan-
dards of conduct rule 46 is facially violative of Section 8(a)(1)
of the Act. Said rule prohibits employees from “loitering in
company premises before and after working hours.” As to this
provision, Fred Harmon testified that he “made sure” this rule
was included in the team member guide because Respondent’s
facility “. . . places a big emphasis on ensuring that our team
members have the right tools and . . . environment to perform
their duties, and, while people are trying to work, we want to
make sure that there’s not people that are trying to interfere . . .
and [be] disruptive.” According to Harmon, rule 46 was de-
signed to stop employees, who are finished working, from be-
ing in the “back-of-the-house”; while he defined theses areas as
“any of the non-public areas,” including the TDR, none of the
foregoing appears in the rule. Harmon added that employees
are off duty “once they’re clocked out and are no longer work-
ing” and, then, team members are permitted to remain as guests
on the property to use the facility’s public areas and to speak to
on-duty employees in those areas—“It would not be in conflict
with this policy. The team members are allowed to be guests
. . . when they’re off duty.” However, as with the areas, into
which off-duty employees are forbidden to go, the fact that
employees are permitted to visit the public areas is nowhere
stated in the rule. On this point, Harmon testified that employ-
ees must read Respondent’s “visiting the property as a guest
policy,” which is on page 52 of the team member guide, in
order to ascertain that rule 46 does not apply to the public areas
of Respondent’s facility.103 Further, according to Harmon, “. . .

antiharassment rules, such as Respondent’s standards of conduct rule
10.
103 Even this is not entirely clear as the “visiting the property as a
guest” policy permits employees to use “many” but, presumably, not all
PALMS HOTEL & CASINO 1391
loitering, even while you’re there as a guest is unacceptable,”
and off-duty employees, who visit public areas, such as the
coffee shop, merely to speak to an on-duty employee and not,
for example, to order food, would be in violation of rule 46.
Finally, while Harmon maintained that the key word in the rule
is “loitering,” I note that the word is also undefined in the team
member guide.
In support of the complaint allegation that rule 46 is facially
unlawful, counsel for the General Counsel assert that it “argua-
bly” prohibits all activity, including union and other protected
concerted activities, before and after working hours, on all
company property. There is no dispute that rule 46 pertains to
Respondent’s off-duty employees, and the legality of off-duty
employee access rules is governed by the Board’s test, set forth
in Tri-County Medical Center, 222 NLRB 1089, 1089 (1976).
Therein, the Board held that “except where justified by busi-
ness concerns, a rule which denies off-duty employees entry to
parking lots, gates, and other outside, nonworking areas will be
found unlawful. The Board also found that a no-access rule,
concerning off-duty employees, will be found valid only if it
(1) limits access solely with respect to the interior of the plant
and other working areas; (2) is clearly disseminated to all em-
ployees; and (3) applies to off-duty employees seeking access
to the plant for any purpose and not just to those employees
engaging in union activities. I believe that Respondent’s rule,
prohibiting employees from “loitering in company premises
before or after working hours,” is ambiguous and unlawful
when subjected to the aforementioned test. Thus, notwithstand-
ing Fred Harmon’s testimony, regarding the rule’s underlying
intent,104 the Merriam-Webster dictionary defines the word
premise as “a piece of land with the structures on it” or “the
place of business of an enterprise.” On its face, then, rule 46 is
not specifically limited to the interior, or even the so-called
back-of-the-house areas and seemingly encompasses Respon-
dent’s entire facility, including the exterior areas. In this re-
gard, Respondent failed to proffer any business justification for
such a broad denial of access to off-duty employees. The amor-
phous nature of rule 46 is further demonstrated by Respon-
dent’s failure to define the areas to which off-duty employees
are denied access or to include a disclaimer that the prohibition
does not extend to the public areas of its facility. Accordingly,
as rule 46 can just as readily be understood as prohibiting loi-
tering in the exterior areas of Respondent’s facility as prohibit-
ing loitering in the interior areas and as it appears to be defi-
ciently vague in its scope, I find that Respondent’s above-
quoted standards of conduct rule 46 has the chilling effect of
inhibiting its employees from engaging in protected concerted
activities and, therefore, is violative of Section 8(a)(1) of the
Act. Ark Las Vegas Restaurant Corp., supra at 1290; Flamingo
Hilton-Laughlin, supra, at 289–290.

of Respondent’s “outlets.” Other than guest rooms, it is not clear into
which public areas, employees may not go.
104 In this regard, Respondent’s rule is as ambiguous as the off-duty
access rules in Ark Las Vegas Restaurant Corp., 335 NLRB 1284
(2001), and Flamingo Hilton-Laughlin, supra, both of which prohibited
access to the respondent’s “property.”
Finally, the General Counsel alleges that Respondent’s stan-
dards of conduct rule 61 is facially violative of Section 8(a)(1)
of the Act. Said rule, which is related to rule 46, prohibits em-
ployees from “eating or loitering in the Palms Team Member
Dining Room on days off.” Respondent’s executive chef, Har-
ris Okashige, testified that the team dining room is located in
the lower basement of Respondent’s facility and that it is di-
vided into an open area, approximately 50 feet long and 40 feet
wide, which is the dining room and in which are located snacks,
drinks, “and stuff like that,” and a kitchen area, in which em-
ployees may purchase food, cafeteria style. Food is produced
in the latter area, and employees wait on line for what they
order. According to Okashige, enough food is produced in the
TDR kitchen to feed 1700 employees daily, and, given the size
of the dining area, which has a capacity of only 177 people,
“. . . we have to ask other departments to stagger their shifts” in
order to avoid over-crowding in the TDR.” He added that the
TDR is normally completely full from 11 a.m. until 1 p.m. and
from 5:30 to 6 p.m.; that all team members are eligible to eat
meals in the dining room and that, besides lunches, employees
often take their break periods there. Finally, Okashige testified
that the small size of the TDR was the subject of numerous
employee complaints “in the beginning because we had so
many team members going in there and the shifts weren’t stag-
gered at that point.”
Upon scrutinizing counsel for the General Counsel’s post-
hearing brief, it is not entirely clear what they consider to be
unlawful about this provision of Respondent’s standards of
conduct. Thus, quoting their brief, standards of conduct rule 61
does “. . . not clearly communicate that off-duty employees
have access to employees who wish to engage in protected,
concerted activity such as communication with their co-workers
or with customers about organizing or working conditions.”
Since Respondent’s rule, on its face, concerns off-duty em-
ployee access to its facility, the Board’s Tri-County Medical
Center, supra, test is applicable. Thus, the rule is clearly lim-
ited to a specific interior area of Respondent’s facility—the
TDR; it is set forth in the team member guide, which is dis-
seminated to all newly-hired employees; and the rule appar-
ently applies to off-duty employees, who are in the TDR for
any reason, including protected concerted activities. Further,
although rule 61 does not apply to the exterior areas of Respon-
dent’s facility, the latter has presented a valid and substantial
business justification for its rule—the small size and limited
seating capacity of the TDR and the large number of on-duty
employees who eat there. Moreover, as common usage and the
Merriam-Webster dictionary define “loitering” as meaning
“lingering” or “hanging around idly,” it is hardly an ambiguous
word. Finally, counsel relies upon the Board’s decision in
Chariot Marine 335 NLRB 339 (2001), as support for their
position. However, while the rule, at issue therein, did prohibit
loitering, it also contained a prohibition against nonwork-
related conversations on the respondent’s property during
working hours, and, as the latter aspect of the rule was patently
unlawful, the Board found the respondent’s entire rule violative
of Section 8(a)(1) of the Act. Accordingly, for the foregoing
reasons, including my belief that Respondent has presented a
reasonable business justification for rule 61, I shall recommend
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1392
dismissal of the applicable portion of paragraph 5(a)(2) of the
complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent engaged in acts and conduct violative of Sec-
tion 8(a)(1) and (3) of the Act by discharging its employee,
Martin Perez, because he engaged in activities in support of the
Union.
4. Respondent engaged in acts and conduct violative of Sec-
tion 8(a)(1) and (3) of the Act by issuing a warning notice to its
employee, Martin Perez, because he engaged in activities in
support of the Union.
5. Respondent engaged in acts and conduct violative of Sec-
tion 8(a)(1) of the Act by interrogating its employees regarding
their union sympathies and activities.
6. Respondent engaged in acts and conduct violative of Sec-
tion 8(a)(1) of the Act by impliedly threatening its employees
with discharge because of their support for the Union.
7. Respondent engaged in acts and conduct violative of Sec-
tion 8(a)(1) of the Act by promulgating a rule, prohibiting its
employees from engaging in protected concerted activities.
8. Respondent engaged in acts and conduct violative of Sec-
tion 8(a)(1) of the Act by promulgating and maintaining in
effect, in its team member guide, a standards of conduct rule,
prohibiting employees from engaging in conduct having the
effect of being injurious, offensive, threatening, intimidating,
coercing, or interfering with other employees, which has the
effect of chilling employees in the exercise of their Section 7
rights.
9. Respondent engaged in acts and conduct violative of Sec-
tion 8(a)(1) of the Act by promulgating and maintaining in
effect, in its team member guide, a standards of conduct rule,
prohibiting employees from loitering in company premises
before or after working hours, which has a tendency to inhibit
employees from exercising their rights guaranteed by Section 7
of the Act.
10. The above unfair labor practices effect commerce within
the meaning of Section 2(6) and (7) of the Act.
11. Unless specifically found above, Respondent has en-
gaged in no other unfair labor practices.
REMEDY
Having found that Respondent has engaged in serious unfair
labor practices within the meaning of Section 8(a)(1) and (3) of
the Act, I shall recommend that it be ordered to cease and desist
from engaging in such acts and conduct. Generally, I shall
recommend that it be ordered to cease and desist from interfer-
ing with, restraining, and coercing its employees in the exercise
of their rights guaranteed by Section 7 of the Act. Specifically,
as I have found that it unlawfully discharged employee, Martin
Perez, I shall recommend that Respondent be ordered to offer
him reinstatement to his former position of employment and, if
said position no longer exists, to a substantially equivalent posi-
tion, with no loss of seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of earn-
ings and other benefits, computed on a quarterly basis from
January 9, 2002 to the date of a proper offer of reinstatement,
less any interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). Further, I
shall recommend that Respondent be ordered to rescind the
warning, which it issued to Perez on January 7, 2002. Also, I
shall recommend that Respondent be ordered to expunge from
its records, including Perez’ personnel file, any references to
his unlawful warning and discharge and inform him that such
has been done. Moreover, I shall recommend that Respondent
be ordered to cease maintaining in its team member guide the
standards of conduct rules, which I have found violative of the
Act. Finally, I shall recommend that Respondent be ordered to
post a notice to its employees, advising them of its unfair labor
practices and the steps it is required to take to remedy them.
[Recommended Order omitted from publication.]