Local Joint Executive Board of Las Vegas v. N.L.R.B., 05-75515.
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Citation | 515 F.3d 942 |
| Docket Number | No. 05-75515.,05-75515. |
| Parties | 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. 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. |
| Decision Date | 28 January 2008 |
Reorganized AG, LLC, Intervenor,
v.
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.
[515 F.3d 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.
[515 F.3d 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 ("ALP) 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 ("NL RA" or "the Act"). We deny the Unions' petition for review.
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 collective bargaining 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 hotel employees would get different medical insurance. Ms. Sapien told the servers that union dues were $32.50 a month, and Ms. Lynn indicated that she had already told the servers about dues. Then Ms. Sapien said that it "looked like [Lynn] had all [her] bases covered," and walked away. Ms. Wallack testified that the conversation with Ms. Sapien lasted about eight minutes.
Ms. Sapien ordinarily eats lunch in the employee dining room, but normally sits with human resources employees. She does not usually sit with uniformed employees. She acknowledged that as she approached the table to talk to the servers, she was aware that they were talking about signing union cards. Ms. Sapien testified that she approached the employees with the intention of giving them "the facts."
The second incident involved Stacey Briand, the Company's director of human
resources; Azucena Felix, a union committee leader; and Adelia Bueno, a housekeeper. On June 6, 2003, Ms. Felix was speaking to a table of housekeepers in the employee dining room at Ms. Bueno's request. As Ms. Bueno was signing a union card, Ms. Briand came over to the table. Ms: Briand said Ms. Bueno "shouldn't be signing things that she wasn't sure about, because what she was signing was something like a contract, and that [Felix] was probably promising something that [Felix] wasn't going to be able to give her." Because Ms. Bueno did not understand English very well, Ms. Felix translated Ms. Briand's comments into Spanish. Ms. Briand asked what Ms. Felix was saying, and Ms. Felix explained that she merely translated Ms. Briand's statements for Ms. Bueno. Ms. Briand then left the table.
The Board's interpretation of the Act is accorded considerable deference as long as it is "rational and consistent" with the statute. NLRB v. Calkins, 187 F.3d 1080, 1085 (9th Cir,1999); NLRB v. United Union of...
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