515 F.3d 942 (9th Cir. 2008), 05-75515, Local Joint Executive Bd. of Las Vegas v. N.L.R.B.

Docket Nº:05-75515.
Citation:515 F.3d 942
Party Name:LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS; Culinary Workers Union Local # 226, and Bartenders Union Local 165, AFL-CIO, Petitioners, Reorganized AG, LLC, Intervenor, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Case Date:January 28, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 942

515 F.3d 942 (9th Cir. 2008)

LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS; Culinary Workers Union Local # 226, and Bartenders Union Local 165, AFL-CIO, Petitioners,

Reorganized AG, LLC, Intervenor,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 05-75515.

United States Court of Appeals, Ninth Circuit.

Jan. 28, 2008

Argued and Submitted Oct. 16, 2007.

Page 943

Kristin Martin (argued), Richard G. McCracken, Davis, Cowell, & Bowe, LLP, San Francisco, CA, for petitioner Local Joint Executive Board of Las Vegas.

David A. Seid, Attorney, National Labor Relations Board, Washington, D.C., for the respondent.

Brian Herman (argued), Mark J. Ricciardi, Fisher & Phillips, LLP, Atlanta, GA, for intervenor Reorganized Aladdin Gaming, LLC.

On Petition for Review of an Order of the National Labor Relations Board. NLRB Nos. 28-CA-18851, 28-CA-19017.

Before: JANE R. ROTH, [*] SIDNEY R. THOMAS, and CONSUELO M. CALLAHAN, Circuit Judges.

Page 944

CALLAHAN, Circuit Judge:

Local Joint Executive Board of Las Vegas, the Culinary Workers Unions Local 226, and the Bartenders Unions, Local 165, AFL-CIO ("the Unions"), petition this court for review of a decision by the National Labor Relations Board ("the Board") reversing the Administrative Law Judge's ("ALJ") conclusion that agents of Aladdin Gaming, LLC, 1 ("the Company") engaged in illegal surveillance in violation of Section 8(a)(1) of the National Labor Relations Act ("NLRA" or "the Act"). We deny the Unions' petition for review.

FACTS

The Company operates a hotel and casino in Las Vegas, Nevada. On May 30, 2003, the Unions began an open campaign to organize the housekeeping, food, and beverage departments. During the organizing campaign that followed, the Company committed some unfair labor practices that are not at issue in this case. The issue in this appeal is whether two incidents where human resources managers interrupted employees who were discussing union cards in an open dining room constitute unlawful surveillance under Section 8(a)(1).

The first incident involved Tracy Sapien, the Company's vice-president of human resources, and two employees who were also union organizers, Sheri Lynn and Julie Wallack. All employees, including supervisors and managers, can eat in an employee dining room provided by the Company. On June 4, 2003, Ms. Lynn and Ms. Wallack were having lunch together in the employee dining room. During their lunch break, the organizers approached a number of buffet servers at the table next to them to ask whether they would like to sign union cards. After observing Ms. Wallack and Ms. Lynn briefly, Ms. Sapien, who was also eating lunch in the dining room, approached the buffet servers. Ms. Sapien interrupted the organizers and said to the servers, "I would like to make sure you have all of the facts before you sign that card." Sapien told the buffet servers that before signing a union card, they should understand that what they were signing was "legal and binding," and that if the Union ever became the collectivebargaining representative, the "card authorizes union dues to start coming out of [the card signer's] paycheck." Ms. Lynn assured Ms. Sapien that she had given the buffet servers all the facts. There was then a brief conversation about union benefits including insurance, and Ms. Sapien offered her opinion that even if the union organizing campaign was successful, there was no guarantee that the...

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