Bally's Park Place Inc. v. Nat'l Labor Relations Bd.

• Decision Date: 05 August 2011
• Docket Number: Nos. 10–1309,10–1356.,s. 10–1309
• Citation: 191 L.R.R.M. (BNA) 2236,646 F.3d 929
• Parties: BALLY'S PARK PLACE, INC., Petitionerv.NATIONAL LABOR RELATIONS BOARD, Respondent.International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

646 F.3d 929

191 L.R.R.M. (BNA) 2236

161 Lab.Cas. P 10,402

BALLY'S PARK PLACE, INC., Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent.International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Intervenor.

Nos. 10–1309

10–1356.

United States Court of Appeals, District of Columbia Circuit.

Argued May 12, 2011.Decided Aug. 5, 2011.

On Petition for Review and Cross–Application for Enforcement of an Order of the National Labor Relations Board.Judith Sadler argued the cause for petitioner. With her on the briefs was Charles E. Sykes.Zachary R. Henige, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney.Cassie Ehrenberg and Blair Katherine Simmons were on the brief for intervenor.Before: SENTELLE, Chief Judge, and GINSBURG and GARLAND, Circuit Judges.Opinion for the Court filed by Circuit Judge GARLAND.GARLAND, Circuit Judge:

Bally's Park Place, Inc. petitions for review of a decision and order of the National Labor Relations Board (NLRB). The Board found that the company committed unfair labor practices in violation of sections (8)(a)(1) and (3) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1), (3), when it discharged employee Jose Justiniano because of his support for the United Auto Workers. For the reasons set forth below, we deny Bally's' petition and grant the Board's cross-application for enforcement of its order.

I

Bally's operates a casino in Atlantic City, New Jersey. The company hired Justiniano as a table dealer in 2000, and through 2006 it repeatedly praised him as a good employee. See Dealer Evaluation Forms (J.A. 367–69). In November of that year, the United Auto Workers (UAW) began a campaign to organize casino dealers in the Atlantic City area, including those working at Bally's. Justiniano attended numerous meetings held by the union, became a supporter, and signed an authorization card. He spoke to other Bally's employees on a daily basis about the need for a union-in the employees' lounge, in the cafeteria, and as they were coming to and going from work. He also appeared in a promotional video that the union prepared and mailed to casino workers in and around Atlantic City.¹

In January 2007, at a time when no customers were present at his table, Justiniano spoke to another employee about the union's organizing efforts. It is undisputed that Bally's allowed dealers to have social conversations in such circumstances. Nonetheless, Justiniano's supervisor told the two that they could not talk about the union while on the casino floor.

On March 19, 2007, Justiniano got into a dispute with a manager over break time. When the supervisor threatened to discipline him, Justiniano responded that such threats were the reason the employees needed a union. The manager then began yelling at him, saying that he was not allowed to talk about “union” on the casino floor and that he could be “fired for talking about unions.” Bally's Park Place, Inc., 355 N.L.R.B. No. 218, at 7, 2010 WL 3835565 (Sept. 30, 2010) (ALJ Op.). A short while later, Justiniano was instructed to report to another supervisor, who told him that he was “not allowed to talk about the Union on the casino floor whatsoever.” Id. And on March 22, Justiniano was escorted to speak to the shift manager, who asked him about the previous incident. The shift manager told Justiniano that he should not talk about the union on the casino floor and issued him a written warning for acting “in an unprofessional manner.” Id.

In late March or early April, Justiniano was talking with other employees in the employee cafeteria when a Bally's floor person told them that she and other supervisors had just had a meeting with “higher up management.” Id. She said they were asked “the best way we can satisfy dealers” so they would not join the union. Id. Justiniano told her there was nothing to do because the “damage is already done.” Id.

On March 31, Justiniano was scheduled to work at the casino from 12:00 noon to 8:00 p.m. The night before his shift, the mother of his 13–year–old daughter called and asked him to take care of the girl beginning at 12:30 p.m. the next day. Justiniano's daughter suffered from severe asthma that required treatment every four hours. He had previously taken leave to care for her, without incident, pursuant to the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Justiniano called Bally's at 6:00 a.m. on the morning of March 31 and left a message that he would be taking FMLA leave that day; he called back at 9:00 a.m. to confirm that Bally's had received the message.

Later that morning, the UAW held a rally outside the Trump Plaza casino as part of its effort to organize Atlantic City casino dealers. The rally was scheduled to last from 10:30 a.m. until about 12:15 p.m. Justiniano attended the rally and waved a “Union Yes” sign. On his way to work, one of Bally's' managers saw Justiniano holding the sign. Upon arriving at the casino, the manager informed Bally's' vice president of table games, Michael May, that he had just seen Justiniano at the rally. May responded that Justiniano had requested FMLA leave for the day.

When Justiniano returned to work, he signed a form requesting paid family leave for his entire shift on March 31. On April 9, May took Justiniano to meet with Bally's' director of operations, Richard Tartaglio. Tartaglio informed Justiniano that he had been seen at the UAW rally on the morning of March 31, and he asked Justiniano when he left the rally. Justiniano acknowledged that he was at the rally until it ended at about 12:20 p.m., ² and said that he had then gone home to care for his daughter. Based on the information Justiniano provided, Tartaglio and May concluded that Justiniano had been at the rally for 20 minutes after the start of his scheduled shift and that he had therefore spent 20 minutes of FMLA leave time attending the rally. On April 12, Bally's terminated Justiniano for “violation of Work Rule Number 3 in the employee handbook stating that employees will be honest and forthcoming in all communication.” 355 N.L.R.B. No. 218, at 2 (Board Op.).

Following Justiniano's termination, the UAW filed unfair labor practice charges against Bally's. Based on those charges, the NLRB's General Counsel issued a complaint alleging that the company had violated sections 8(a)(1) and (3) of the NLRA, which (inter alia) make it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of” their rights to form, join, or assist labor organizations, 29 U.S.C. § 158(a)(1), and “by discrimination in regard to ... tenure of employment ... to encourage or discourage membership in any labor organization,” id. § 158(a)(3). The complaint alleged that Bally's violated section 8(a)(1) by instructing Justiniano that he could not talk about the union on the casino floor, and by soliciting employees' grievances and promising them improved conditions if they refrained from supporting the union. The complaint also alleged that Bally's violated sections 8(a)(1) and (3) by terminating Justiniano for engaging in union activity.

The Administrative Law Judge (ALJ) found that Bally's violated section 8(a)(1) by telling Justiniano—once in January and three times in March, 2007—that he could not discuss union issues on the casino floor even though employees were permitted to discuss other nonwork-related matters there. 355 N.L.R.B. No. 218, at 7–8 (ALJ Op.) (citing, e.g., ITT Indus., 331 N.L.R.B. 4 (2000)). The judge also found that the floor person's inquiry as to how management could “satisfy dealers” so they would not join the union constituted an implicit promise to remedy dealers' grievances if they did not join. This too, the ALJ held, violated section 8(a)(1). Id. at 8 (citing Traction Wholesale Ctr. Co., 328 N.L.R.B. 1058 (1999)).

But the ALJ dismissed the General Counsel's allegation that Bally's violated sections 8(a)(1) and (3) by discharging Justiniano. Id. at 9–10. Applying the familiar Wright Line test, the judge first found that the General Counsel had established a prima facie case that Bally's discharged Justiniano because of his union activity. Id. at 9 (citing Wright Line, 251 N.L.R.B. 1083 (1980)). The judge noted that it was undisputed that Bally's was aware of Justiniano's support for the union, that Justiniano was discharged shortly after he was seen attending a union rally on March 31, and that the “timing of an employer's action can be persuasive evidence of its motivation.” Id. (citing, e.g., Masland Indus., 311 N.L.R.B. 184, 197 (1993)). The judge also determined that the section 8(a)(1) violations he had found constituted further “evidence of animus on respondent's part.” Id.

Nonetheless, the ALJ concluded that Bally's had satisfied its rebuttal burden, under Wright Line, to show that it would have discharged Justiniano in the absence of his union activity. The judge found that Bally's had a “zero-tolerance policy” with respect to employees who abused FMLA leave by using it for something other than that for which they had requested the leave. And he concluded that Bally's discharged Justiniano for “abus[ing] the FMLA leave he had requested to care for his daughter by using at least 20 minutes of such leave to attend the UAW rally on March 31.” Id. at 10.

The UAW and the General Counsel appealed the ALJ's decision to the Board. Bally's did not except to the ALJ's findings that it violated section 8(a)(1) by telling Justiniano not to talk about the union and by soliciting grievances and promising to remedy them in order to dissuade employees from supporting the union. The Board therefore adopted those findings. The Board disagreed, however, with the ALJ's determination that Bally's did not...