Bally's Atlantic City

National Labor Relations Board - Board Decisions

Apr 11, 2008

352 N.L.R.B. 316 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 51
316
Bally’s Park Place Inc., d/b/a Bally’s Atlantic City
and International Union, United Automobile
Aerospace and Agricultural Implement Work-
ers of America, AFL–CIO. Case 4–RC–21286
April 11, 2008
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
The National Labor Relations Board has considered
objections to an election held June 2 and 3, 2007, and the
attached administrative law judge’s report recommend-
ing disposition of them.1 The election was conducted
pursuant to a Stipulated Election Agreement. The tally
of ballots shows 628 ballots for and 255 ballots against
the Petitioner, with 141 challenged ballots, an insuffi-
cient number to affect the results.
The Board has reviewed the record in light of the Em-
ployer’s exceptions and brief,2 has adopted the judge’s
findings and recommendations,3 and finds that a certifi-
cation of representative should be issued.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 The judge was sitting as a hearing officer in this representation
proceeding. The Employer has excepted to some of the hearing offi-
cer’s credibility findings. The Board’s established policy is not to
overrule a hearing officer’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have
carefully examined the record and find no basis for reversing the find-
ings.
We affirm the judge’s denial of the Employer’s motion that the
judge recuse himself on grounds of prejudice, for the reasons stated by
the judge at the hearing. Moreover, some of the Employer’s exceptions
argue that the judge’s rulings, findings, and conclusions demonstrate
bias and prejudice. On careful examination of the judge’s report and
the entire record, we are satisfied that the Employer’s contentions are
without merit.
3 We affirm the judge’s finding that Union Observer Suisung Wong
did not signal employees to vote for the Union during the election
process. However, we find it unnecessary to rely on the judge’s obser-
vation that the evidence did not show that Wong intended to point to
the “yes” box on the sample ballot; Wong’s subjective intent is not
relevant.
We agree with the judge that the Employer’s evidence concerning
the practice in other regional offices regarding the translation of elec-
tion notices is irrelevant. See Superior Truss & Panel, Inc., 334 NLRB
916, 919 (2001). Even assuming that such evidence is relevant, we
agree with the judge that the Employer did not prove that the Regional
Director’s denial of the Employer’s request for translation of the no-
tices into 9 foreign languages in this case is inconsistent with agency-
wide practice. Compare Marriot In-Flite Services v. NLRB, 417 F.2d
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for International Union, United Automobile
Aerospace and Agricultural Implement Workers of
America, AFL–CIO, and that it is the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All full time and regular part time dealers, keno and
simulcast employees employed by the Employer at its
Park Place And The Boardwalk, Atlantic City, New
Jersey facility, excluding all other employees, cashiers,
pit clerks, clerical employees, engineers, guards and
supervisors as defined in the Act.

William Slack, Esq., for the General Counsel.
Charles E. Sykes, Esq., of Houston, Texas, Richard Tartaglio,
Esq., of Atlantic City, New Jersey, and Gerald Einsohn,
Esq., of Las Vegas, Nevada, for the Employer.
William T. Josem, Esq. and Cassie R. Ehrenberg, Esq., of
Philadelphia, Pennsylvania, for the Petitioner.
ADMINISTRATIVE LAW JUDGE’S REPORT ON
OBJECTIONS
I. BACKGROUND
DAVID I. GOLDMAN, Administrative Law Judge. Pursuant to
Section 9(c) of the National Labor Relations Act (the Act), the
International Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, AFL–CIO (UAW or
Union) filed a representation petition in the above-referenced
matter on April 20, 2007.1 On April 27, the Regional Director
for Region 4 of the National Labor Relations Board (the Board)
approved a Stipulated Election Agreement, in which the parties
agreed to a Board-conducted representation election on June 2
and 3, for the following employees of Bally’s Park Place Inc.
d/b/a Bally’s Atlantic City (Bally’s or Employer):
All full-time and regular part-time dealers, keno and simulcast
employees employed by the Employer at its Park Place And
The Boardwalk, Atlantic City, NJ facility.2
An election in this unit was conducted on June 2 and 3. The
tally of ballots showed the following results:
Approximate number of eligible voters……………….1129
Void Ballots……………………………………………....6

563 (5th Cir. 1969), cert. denied 397 U.S. 920 (1970) (enforcement of
Board’s order denied where regional director failed to follow then-
current agencywide policy concerning translation of election ballots).
In the absence of exceptions, we find it unnecessary to consider the
judge’s analysis of the Union’s contention that the Employer should
have been precluded from offering evidence supporting its “notice-
translation” objection.
1 All dates hereafter refer to 2007, unless otherwise stated.
2 Excluded from the bargaining unit under the stipulation were “[a]ll
other employees, cashiers, pit clerks, clerical employees, engineers,
guards and supervisors as defined in the Act.” The stipulation further
provided that “[a]ll full-time and regular part-time supervisors casino
games/dealers dual rate may vote subject to challenge by the parties.”
BALLY’S ATLANTIC CITY 317
Votes cast for Petitioner………………………………..628
Votes cast against participating labor organizations…….255
Valid votes counted…………………………………….883
Challenged Ballots……………………………………..141
Valid votes counted plus challenged ballots………..…1024
After the election, on June 1, Bally’s filed objections to the
election. On July 12, the Acting Regional Director for Region
4 of the Board ordered a hearing on the objections.3 I con-
ducted the hearing in Philadelphia, Pennsylvania, August 14–
16. The parties filed briefs on September 11. Based on the
testimony at the hearing, my assessment of the credibility of the
witnesses and their demeanor, the documentary evidence, and
the entire record before me, as well as the briefs of the parties, I
make the following findings, conclusions, and recommenda-
tions.
II. THE OBJECTIONS
Bally’s originally filed 10 sequentially-numbered objections.
In its posthearing brief (Emp. Br. at 30), Bally’s withdrew Ob-
jections 3–5 and 7. Accordingly, the following extant objec-
tions remain:
1. To the refusal of the Regional Director to provide
Notice(s) of Election printed in various foreign languages
that are spoken by hundreds of eligible voters. The Peti-
tioner did object to the Employer’s request that the Notice
Election be printed in various foreign languages.4
2. To the conduct of at least one of the Petitioner’s
Asian Election observers who had a sample ballot visible
for Asian voters to see before they obtained their ballots.
The Petitioner’s Asian observer would point to the Sample
Ballot’s “Yes” box, which was clearly visible to the Asian
voters prior to the casting of their ballots.
6. Agents, representatives and supporters of the Peti-
tioner threatened, coerced and intim[idated] various eligi-
ble voters who did not support the Petitioner.
8. Agents and representatives of the Petitioner asked
eligible voters how they were going to vote prior to the
election.
9. Agents and representatives of the Petitioner threat-
ened eligible voters that if they did not sign a document in

3 On June 14, Bally’s moved to transfer these proceedings to another
Region for adjudication. This motion was denied by the Regional
Director on June 19. Bally’s then filed a motion with the Board appeal-
ing the Regional Director’s order. Bally’s motion was denied by order
issued July 12. On July 13, the Acting Regional Director ordered that
the hearing in this matter be consolidated with an unfair labor practice
case involving the same parties. Bally’s subsequently moved to post-
pone and reschedule the hearing. The UAW opposed Bally’s motion
and moved to sever the election objections hearing from the unfair
labor practice case. In orders issued August 1, Deputy Chief Adminis-
trative Law Judge C. Richard Miserendino granted the Union’s motion
to sever and denied Bally’s motion to postpone and reschedule the
objections hearing.
4 The original objection indicated that the Petitioner “did not” object
the request for foreign language notices. By letter dated June 12,
Bally’s informed the Region and the parties that the objection should
read as set forth in the text.
support of the Petitioner that they would be the first to go
after the Petitioner won the election.
10. By the above, related and other acts and conduct,
the Petitioner’s agents, representatives and supporters in-
terfered with the election.
In its brief, Bally’s describes (Emp. Br. at 40) Objection 10
as a “catch all objection” and states that “the evidence in sup-
port of it has been summarized in this brief.” No specific evi-
dence or argument is advanced. Such “catch all” objections
lack the specificity contemplated by the Board’s rules and must
be (and is) overruled. Smithfield Packing Co., 344 NLRB 1,
172 (2004), enfd. 447 F.3d 821 (D.C. Cir. 2006); and Air-
stream, 288 NLRB 220, 229 (1988), enfd. in relevant part, 877
F.2d 1291 (6th Cir. 1989).
In its brief, the Employer advances three issues as a basis to
overturn the election results. The first (Objection 1) challenges
the Region’s failure to provide foreign language translation of
the Board’s notices of election. Second (Objection 2), is the
conduct of a union observer accused, essentially, of electioneer-
ing from his observer’s post during the election. Third (Objec-
tions 6, 8, 9), is the alleged conduct of union organizers during
a visit to the home of an eligible voter.5 Herein, I consider each
issue in turn.
Objection 1. The Region’s Failure to Provide Translated
Notices of Election
Bally’s objects to the failure of Region 4 to provide foreign
language notices of election.
a. The Employer’s request for foreign language notices and
ballots and the Region’s response
Board elections may involve ballots and/or notices of elec-
tion prepared in languages other than or in addition to English.6
Here, the issue was first mooted by Bally’s on April 17, in re-
sponse to an April 12 representation petition filed by the UAW
over (essentially) the same bargaining unit at issue in this case.
That petition was withdrawn and refiled with the petition as-
signed the instant case number on April 20.

5 At the hearing the Employer presented evidence relating to several
additional incidents. These incidents are not urged as objectionable, or
even mentioned in Bally’s posthearing brief. I therefore find that they
are covered by Bally’s withdrawn objections, or otherwise abandoned.
6 The Board’s official notice of election (form 707) is a one-piece
document, 25-1/2 x 14”, supplied by the Board’s Regional Office and
posted prior to Board representation elections in conspicuous places at
the voting site. While the official notice of election is of a piece, it is
comprised of three distinct parts or panels. The left one-third of the
notice (as one faces the notice) sets forth recitations and explanations
under the heading of “General” relating to topics such as the “Purpose
of This Election,” “Secret Ballot,” “Eligibility Rules,” “Special Assis-
tance,” “Challenge[s] of Voters,” “Authorized Observers,” and “Infor-
mation Concerning Election.” The middle one-third sets forth the
specific unit covered by the upcoming election and the date, time, and
place of the election, along with a sample ballot identifying the peti-
tioner. This is the only portion of the form that is not generic. It con-
tains information specific to the election for which the notice is being
posted. The right one-third sets forth various rights of employees and
responsibilities of the Board, and provides examples of objectionable
conduct by unions or employers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD318
In his April 17 letter, Bally’s vice president and associate
general counsel, Gerald Einsohn, requested that the notice of
election and ballots for the election in this case be printed in
nine languages in addition to English. The languages requested
were Chinese (Mandarin and Cantonese), Vietnamese, Hindi,
Spanish, Bangladesh, Korean, Cambodian, and Laotian. The
letter stated:
I am writing you at this time, far in advance of the
election, regarding our request to have the Notice of Elec-
tion and Ballots printed in additional languages. We have
numerous dealers whose first language is not English.
They are hired to service our diverse clientele. The major-
ity of the employees listed below, to our knowledge, do
not speak English well and do not read English. They re-
ceive their instructions verbally in their native tongue from
their supervisors or fellow employees and any written
communication necessary to perform their job is verbally
translated by a supervisor or fellow employee.
Set forth below is the languages and approximate number of
employees:
Chinese (Mandarin and Cantonese) 180
Vietnamese 60
Hindi 80
Spanish 120
Bangladesh 15
Korean 8
Cambodian and Laotian each of which are Approximately
the same number as Koreans
Based on the above, we are formally requesting that
the Notices and Ballots be printed in each of the languages
set forth above. It is our position that the failure to do so
will amount to disenfranchising over 400 votes which is a
third of the unit eligible to vote.
The Region responded the same day, April 17, in a letter
from Field Examiner Mary Leach to Einsohn. Leach wrote:
I am writing this letter requesting additional information and
documentation relating to your request to the Region today
for translated Notices of Election and ballots. Please respond
to and provide the following:
(1) When Chinese, Vietnamese, Hindi, Spanish, Bang-
ladesh, Korean, Cambodian, and Laotian employees apply
for work, are they given applications in their native lan-
guage? If so, please provide copies of those job applica-
tions. When the above groups are interviewed, are they in-
terviewed by employees who speak in their native tongue?
Please provide the name of the employee who performs
the interviews, and the language that the employee speaks.
(2) When the above groups are hired, how does the
Employer communicate with them concerning their fringe
benefits? For example, if the Employer offers its employ-
ees health, dental, or life insurance, are those documents in
the above-listed languages? If so, please provide examples
of benefit materials in the above-listed languages.
(3) When Chinese, Vietnamese, Hindi, Spanish, Bang-
ladesh, Korean, Cambodian, and Laotian employees are
hired, are they trained by employees who speak in their
native tongue? Please provide the names of the employees
who train them, and examples of the training materials that
are provided to them.
(4) When the Employer posts its Wage and Hour,
EEOC, and OSHA-type notices to employees, are those
notices posted in Chinese, Vietnamese, Hindi, Spanish,
Bangladesh, Korean, Cambodian, and Laotian? If so,
please provide copies of the notices.
(5) Does the Employer translate any of its internal or
other memos or notices to employees to Chinese, Viet-
namese, Hindi, Spanish, Bangladesh, Korean, Cambodian,
or Laotian? If so, please provide a copy.
(6) Has the Employer provided any of the Chinese,
Vietnamese, Hindi, Spanish, Bangladesh, Korean, Cam-
bodian, or Laotian employees with translated campaign
materials? If so, please provide a copy. Or, has the Em-
ployer hired any translators or interpreters who speak Chi-
nese, Vietnamese, Hindi, Spanish, Bangladesh, Korean,
Cambodian, or Laotian to communicate with employees
about the Employer’s campaign? If so, please provide the
name and phone number of the translator or interpreter,
and the agency from which they were obtained.
(7) If any of the Chinese, Vietnamese, Hindi, Spanish,
Bangladesh, Korean, Cambodian, or Laotian employees
are issued written disciplinary warnings, does the Em-
ployer provide these warnings in Chinese, Vietnamese,
Hindi, Spanish, Bangladesh, Korean, Cambodian, or Lao-
tian? If so, please provide examples.
(8) If the Chinese, Vietnamese, Hindi, Spanish, Bang-
ladesh, Korean, Cambodian, or Laotian employees take li-
censing exams, are those exams administered in their na-
tive tongue? Are these licensing exams administered by
the Employer or by the State?
(9) If the Chinese, Vietnamese, Hindi, Spanish, Bang-
ladesh, Korean, Cambodian, or Laotian employees are as-
signed duties where they interact with English-speaking
patrons, how do they communicate with them?
(10) Please submit any other evidence which supports
your position that translated Notices of Election and bal-
lots are needed.
Leach’s letter asked Einsohn to respond by noon on April 19.
On April 19, Bally’s director of labor relations, Richard Tart-
aglio, wrote to the Region:
I have been asked to respond to the April 17, 2007 cor-
respondence to Gerald Einsohn, Esq. concerning the above
referenced matter.
Translators are used on an ad hoc basis to explain poli-
cies and procedures, applicable state and federal regula-
tions, discipline, training and any and all other applicable
employment related issues.
Subsequently, on April 23, Union Counsel William T. Josem
wrote to the Region to record the Union’s objection to Bally’s
translation request. The Union, citing the Board’s Casehan-
dling Manual, stressed its view that the Region’s use of foreign
BALLY’S ATLANTIC CITY 319
language materials was permissive, not mandatory, and asserted
that the translation of the ballot and notices into nine languages
would present problems of readability. The Union also took
issue with the need for the translation, asserting that Bally’s
communicates with its employees in English, and indicating the
Union’s understanding that Bally’s employee handbook and
employee complaints were written only in English. The Union
declared: “That employees may communicate with each other
in a language other than English, as was pointed out in Mr.
Einsohn’s correspondence, is not relevant.”
On April 20, the Union’s representation petition was with-
drawn, refiled that same day and assigned its current case num-
ber. The new petition triggered a new round of correspondence
between Bally’s and the Region. On April 23, Bally’s reiter-
ated its request for foreign language notices and ballots in a
letter from Tartaglio to Field Examiner Leach that was essen-
tially identical to the request sent by Einsohn on April 17.
Tartaglio’s letter restated Einsohn’s request and added the ex-
planation about Bally’s ad hoc use of translators that he had set
forth in his April 19 letter. Leach responded to the new request
for foreign language notices and ballots with a letter tracking
her April 17 letter, complete with a request that Bally’s respond
to the 10 questions set out in the previous letter. This time, she
stated:
This is in response to your April 23, 2007 request that the No-
tices of Election and ballots in the above-captioned case be
translated into nine languages other than English. In your let-
ter you state, in part, that “Translators are used on an ad hoc
basis to explain policies and procedures, applicable state and
federal regulations, discipline, training, and any and all other
applicable employment related issues.” A review of your re-
quest indicates that it does not contain sufficient evidence to
establish that the Notices of Election and ballots require trans-
lation into languages other than English in order to permit
non-English speaking voters to exercise their rights in the
election in this case.
Therefore, I am requesting your response to the attached ques-
tions. Please answer each question and provide supporting
documentation by Monday, April 30, as well as any other in-
formation that will demonstrate to the Region the need for
Notices of Election and ballots to be translated into nine lan-
guages. Please note that I understand that you are very busy,
and I do not wish to be overly burdensome with my requests.
However, in order for the Region to adequately consider your
request, specific detailed information must be provided. If the
requested information is not provided, it is possible that your
request will be denied.
Attached to the letter were the same 10 questions (listed
above) that Leach had sought from Bally’s counsel, Einsohn, in
her April 17 letter.
Tartaglio responded to Leach’s request by letter dated April
27. He stated:
In reiteration of my correspondence of April 23, 2007,
it continues to be Bally’s position that a substantial portion
of our Dealer population do not fully read or understand
English. It is not relevant how communication is handled
on a day to day basis. What is relevant is that in order to
avoid disenfranchising a substantial portion of Bally’s
non-English speaking Dealer population, the ballots must
be in a language which will permit each of them to prop-
erly exercise their right to vote in the election in this case.
By letter dated May 3, Region 4 Regional Director Dorothy
L. Duncan-Moore wrote to Tartaglio informing him that “I
have concluded that your request for foreign language transla-
tions must be denied.” Regional Director Duncan-Moore noted
that a Stipulated Election Agreement providing for a June 2 and
3 election among the approximately 1200 employees in the
stipulated unit had been agreed to by the parties and approved
by the Regional Director. She referenced that “the Board
Agent advised you by letter dated April 25 that the information
set forth in your April 23 letter was insufficient to establish that
translations were required,” and noted that the Board agent had
requested answers to questions “concerning the need for the
requested translations and the manner in which the Employer
regularly communicates with non-English speaking employees
both orally and in writing, including the documents issued to
employees by the Employer.” In concluding that the transla-
tions would not be provided, the Regional Director concluded:
I have carefully reviewed your letters of April 23 and
April 27 and concluded that you have not submitted suffi-
cient evidence to establish that translations of either the
Notice of Election or the ballots are necessary in this case.
In your letter of April 23, you asserted that English is not
the first language of more than 470 dealers, the majority of
whom do not read English, and that supervisors and fellow
employees are used “on an ad hoc basis” to translate in-
structions and some written communications. In your let-
ter of April 27 you again asserted that a substantial num-
ber of the unit employees “do not fully read or understand
English.” However, you failed to answer any of the Board
Agent’s questions and asserted that:
It is not relevant how communication is handled on a
day to day basis. What is relevant is that in order to avoid
disenfranchising a substantial portion [of the unit], the bal-
lots must be in a language which will permit each of them
to properly exercise their right to vote in the election in
this case.
In these circumstances, I find that you have failed to
demonstrate that there exists a need for either the Notice
of Election or the ballots to be translated as you request.
Although a substantial portion of the bargaining unit em-
ployees apparently speak English only as a second lan-
guage, you have cited no NLRB or court precedent requir-
ing that election materials be translated based only on the
foreign birth of some of the voters. Although the Em-
ployer uses supervisors and employees to verbally trans-
late some oral and written materials for some of the voters,
you admit that such translation is done only on an ad hoc
basis. Despite our specific request, you also offered noth-
ing to suggest that the Employer routinely issues written
communications of any sort in any of these foreign lan-
guages. In addition, you have submitted no specific evi-
dence to show that voters would in fact be unable to un-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD320
derstand the Notice of Election or the ballot [footnote
omitted], though such evidence could have established
such a need. Accordingly, I am denying your request to
translate the Notice of Election and ballots in this case.
See Casehandling Manual Section 11315.1.
The election went forward on June 2 and 3, with English no-
tices of election posted prior to the election, and English ballots
used in the election. Over 90 percent of eligible voters cast
ballots. More than 70 percent of the counted ballots were cast
in favor of union representation.
b. Language issues and the Employer’s operation
At the hearing, the parties developed evidence regarding the
use of foreign languages at the Employer’s facility.
As background, the facility at issue is a large Atlantic City
Casino opened more than 27 years ago and since 2005 owned
by Harrah’s. There are approximately 5000 employees, includ-
ing approximately 1200 bargaining unit dealers (including
“dual rate” employees who voted under challenge and whom
the Employer takes the position are statutory supervisors). The
bargaining unit dealers operate a number of different games
including blackjack, poker, craps, and roulette. One area of the
casino is called the “Asian Pit” and it is devoted to games that
are frequented (although not exclusively) by customers from
Asian countries or backgrounds. These games include a “tile
game” (like dominoes but without the dots), paicow poker,
seven card poker, and mini-Baccarat. Dealers of Asian descent
are employed primarily, but not exclusively in the Asian Pit.
Generally, dealers with thick accents are not encouraged to
work games such as craps that involve relatively more conver-
sation and interaction with customers, than some of the other
table games, such as blackjack, in which the nature of the game
and the use of hand signals limit the necessity of extended con-
versation.
The evidence shows that a very significant (though un-
known) number of dealers were born in other countries. A
significant number speak English as a second language. In
recent years in particular, the ethnic and national origin back-
ground of the dealers has become very diverse. As Michael
May, Bally’s vice president in charge of table games, who
oversees dealer hiring, explained, “from a cultural standpoint
and ethnicity, it really is across the board.”
The testimony establishes convincingly, and not surprisingly,
that on breaks, during meals, and in social situations, employ-
ees who speak English as a second language prefer to speak
their native language with one another.
On the floor of the casino, English is the standard language
spoken by dealers. This emanates, in part, from a rule, devel-
oped 20 years ago and still formally in effect, that forbids deal-
ers from speaking to customers in any language other than Eng-
lish. As May, explained, the rule emanated from a concern
about the potential for collusion between a dealer and a cus-
tomer. With an English-only rule, the supervisors watching the
game are able to understand any conversations. Formally, the
rule remains in place. As May described it, “You’re supposed
to speak—if you speak to a customer casually you’re supposed
to speak English.” However, May also offered that the rule
“has gone by the wayside” and “it is not something that is
really enforced across the board. If anything, in order to pro-
vide better customer service we’ve gone the other path to allow
dealers to speak in their native tongue to those customers that
are in the game.” Such foreign language conversations happen
regularly and May suggested that they are encouraged as part of
Harrah’s emphasis on customer service. However, the relaxa-
tion of the rule described by May has not been clearly commu-
nicated to lower-level supervision. At the hearing, three
Bally’s supervisors offered language-related testimony and they
provided mixed testimony on whether non-English conversa-
tions with customers were permitted. Chong Wong and Doug-
las Vargas-Brenes were certain that dealers must speak English
with customers (see, e.g., Tr. 35, 46, 47, 52, 86), even in the
“Asian Pit” (according to Wong). Another, Wendy Chen, in
agreement with May, suggested that it was acceptable for a
dealer to speak a foreign language with a customer who indi-
cated or demonstrated a preference for that language and that
this occurred frequently in the Asian Pit (see, e.g., Tr. 170,
178–179). Vargas-Brenes (fluent in Spanish and English and a
native of Costa Rica) preferred talking Spanish to native Span-
ish-speaking dealers. In the event of a dispute between a Span-
ish-speaking dealer and a customer he would intervene and ask
the customer if it was ok for him to speak Spanish to the dealer,
a request to which customers routinely agreed.
Bally’s witnesses testified to assisting with translation of
memos or directions on occasion with dealers who did not read-
ily understand English instructions. The frequency of this var-
ied. Wong testified that he would speak Vietnamese or Chinese
with a dealer if they did not understand something but asked
how often this occurred, said “[n]ot much.”7 Generally at work
he speaks English to the Vietnamese or Chinese employees.8
However, there are “occasions” when he translates for employ-
ees and he testified that of the “Asian dealer[s]” “some [have]
very poor English.” Vargas-Brenes also described performing
ad hoc translations for dealers, as necessary, and indicated a

7 In response to questioning by the Employer’s counsel, Wong testi-
fied that he “interpreted” for Chinese or Vietnamese employees “like
maybe 10 time per year,” but when the Employer’s counsel followed up
by clarifying that by “employees” he meant to limit the question to
employees who were “dealers” Wong changed his answer and said it
was “two or three time per week.” These answers are inconsistent. As
noted, above, Wong originally indicated that it was “not much” that he
spoke Vietnamese or Chinese with a dealer who did not understand
something. I believe that 10 times per year was the more accurate
answer and the subsequent answer an effort to accommodate the Em-
ployer at the hearing.
8 I note that references at the hearing by witnesses, and by me in this
decision to, “Chinese,” “Vietnamese,” “Spanish,” or other dealers is a
general reference to the assumed ethnicity or national origin of dealer.
As would be expected, witnesses did not know if a particular dealer
who spoke, for instance, Chinese, was actually from China, Vietnam, or
Jersey City. The witnesses did not know (for the most part) whether a
particular “Chinese dealer” (to use that example again) was an Ameri-
can citizen, a longtime resident of the United States, or a recent immi-
grant. The reference is used to denote the presumptive background of
such dealers but more accurately denotes their observed ability to
communicate in a relevant non-English language and, I am sure, the
appearance of the individual.
BALLY’S ATLANTIC CITY 321
preference for speaking Spanish to Spanish-speaking dealers.
Chen described talking Vietnamese or Chinese to dealers who
spoke it, and acting as an interpreter “all the time,” but said she
communicated in English with Hindi, Spanish, and English
native speaking dealers.
Applications for employment are in English only. Dealers
are hired through an application process that includes an audi-
tion, “which means they come to table games department and
we actually put them on a live game to see if they can handle
dealing in front of customers.” Applicants who pass the audi-
tion “come downstairs and are spoken to with a representative
of the table games department. Normally it’s shift manager
who will ask them some simple questions, and a decision is
then made, with regards to them being hired.” Asked, “[A]re
interpreters ever used in talking with applicants who have
passed the audition?” May answered that “I have never used an
interpreter.”
Bally’s utilizes an extensive employee handbook, which is
provided to each employee, and is written only in English. Its
first page is titled “Acknowledgement[,] Receipt of Employee
Handbook” and provides for the employee to sign a page that
includes the acknowledgment that
I understand I am responsible for compliance with these regu-
lations, policies and procedures. I understand it is my respon-
sibility to read the Handbook carefully and ask questions of
my supervisor or the Human Resources Department if there is
information I do not understand.
Similarly, Bally’s distributes benefits handbooks, employee
evaluation, and employee complaint forms that are in English.
Muscalino thought that there were some benefits books in lan-
guages other than English but he did not provide examples.
Safety training is generally in English only, but some OSHA
training is done in Spanish. Written discipline is given in Eng-
lish only and employees are required to sign an acknowledge-
ment that they have received the discipline.
Bally’s labor relations manager, Patricia Fineran, is involved
in the nonunion grievance procedure established by Bally’s for
employees. She has had occasion to need to use a Spanish
translator for one of the dealer grievance hearings but doesn’t
have a recent recollection of using other language translators.
Generally, she was unable to recollect many such recent situa-
tions with dealers, and stated that she had not had many “lately,
over the last several months prior to the election, I haven’t
really dealt with too many dealers.”
In the last couple of years Bally’s has begun offering English
as a second language class for interested employees. No evi-
dence was presented as to the number of employees attending
the classes, or what portion were dealers.
Frank Muscolina, Bally’s vice president of human resources,
testified that Bally’s held numerous mandatory meetings for
employees in conjunction with the union election and cam-
paign. Each dealer was to attend roughly five meetings, each of
which Muscolina estimated lasted 1 to 1 hour and 15 minutes.
Muscolina described the purpose of the meetings as being “to
inform people as to pros and cons” of union representation.
The meetings included a description of the election process and
information on how the election would be conducted. The
Employer used a sample ballot at the meeting to go over with
employees the “Yes” and “No” notations to be marked on the
ballot by voters. At these meetings Bally’s provided translation
services for employees in a number of languages. When em-
ployees signed in for the meeting they could get translation
equipment consisting of a transistor and headphone. The tran-
sistor was the size of an ipod and the employee could set the
transistor to play one of several languages. Muscolina testified
that Bally’s decided to provide the translation services because
in a prior election at another facility they had not done so and,
according to Muscolina, employees there had felt they were at a
disadvantage and could not understand everything discussed in
the meeting. At the meetings that Muscolina attended (ap-
proximately 12–13), Bally’s handed out all the translation sets,
which was between 75–82 sets. There were between 100–150
employees at the meetings Muscolina attended and not enough
translation sets for those approaching the tables where the sets
were kept. No records were kept of how many people used the
translation equipment. Muscolina estimated that Bally’s spent
between $250,000 and $300,000 on translation services for the
campaign.
In addition, some of the Employer’s (and some of the Un-
ion’s) campaign literature was translated into various lan-
guages, including Spanish, Hindi, Cantonese, Mandarin, and
Vietnamese. This included a Spanish language Board-created
“Notice to Employees” indicating that a petition seeking an
election had been filed and reciting various rights of employees
and examples of unlawful conduct under the Act. This docu-
ment was distributed in English and in Spanish by Bally’s.
Literature was both mailed to dealers’ homes and distributed by
hand. Bally’s also placed campaign ads with the local media
(such as TV, radio, and newspapers) but these were only in
English.
Harrah’s encourages its employees (which since 2005 in-
clude Bally’s employees) to complete opinion surveys to ascer-
tain the employees’ views on the Company and their views on
supervisors. The surveys are available in 15 languages. They
are used throughout Harrah’s owned properties which employ-
ees 95,000 people around the country at 48 properties. No
evidence was offered regarding the extent to which the surveys
were completed, or the language in which they were completed,
by Bally’s employees generally, or by dealers specifically.
c. Analysis
The Employer contends, essentially, that foreign translations
of Board notices of elections must be provided on request. It
also contends that the Region’s failure to do so in this case
warrants the overturning of the election. I reject the Em-
ployer’s contentions for the following reasons.
I. THE BOARD’S POLICY ON TRANSLATION OF NOTICES
While a request for foreign language notices in Board elec-
tions is often accommodated, the Employer’s contention that
foreign language translations must be provided upon the request
of a party rests upon no Board or court precedent, and no Board
rule or regulation.
Bally’s cites Marriott In-Flite Services Division v. NLRB,
417 F.2d 563 (5th Cir. 1969), cert. denied 397 U.S. 920 (1970),
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD322
and NLRB v. Precise Castings, Inc., 915 F.2d 1160 (7th Cir.
1990), cert. denied 499 U.S. 959 (1991), but neither compel a
result in the Employer’s favor.9 Indeed, the salient holding is
that of Precise Castings, 915 F.2d at 1164, which approved the
Board’s policy of allowing regional directors discretion to de-
cide on the use of translated ballots and notices:
Precise Castings observes that the Board has not established a
national policy but has left to its regional directors the choice
among multi-lingual ballots in different languages, and Eng-
lish ballots plus election notices in other languages. . . . Noth-
ing in the National Labor Relations Act prevents the Board
from giving its subordinates discretion in matters of this kind.
This (and not the Employer’s proposition that translations of
notices of elections must be provided on request) is the Board’s
policy. The Regional Directors’ discretion is circumscribed by
the need to ensure that the use of only English election materi-
als does not result in interference with the employees’ free
choice. Northwestern Products, 226 NLRB 653 (1976) (“The
Board’s decision [on the objection to the use of English only
notices and ballots] must be based on a showing that there was
interference with the election, resulting from the use of notices
and ballots printed only in English.”). This policy of leaving
the matter to the discretion of the Regional Directors is consis-
tent with the Board Casehandling Manual, which, as the Em-
ployer points out, is not binding authority,10 but adherence to
which is desirable as it is “intended to safeguard a free and fair
election.” Kirsch Drapery Hardware, 299 NLRB 363, 364
(1990).
The Casehandling Manual contains significant guidance for
agency staff on the utilization of foreign language materials in

9 Marriot Corp. has never been followed by the Board, but in addi-
tion, is inapposite. It is based on a finding by the court that in 1969 the
Board had a policy requiring foreign language ballots whenever foreign
language notices were used, while the Region involved in the Marriott
case had a policy against foreign language balloting in every case.
Putting aside the not minor fact that the Employer here does not object
to the Region’s failure to use foreign language ballots, another differ-
ence is that, whatever the case in 1969, today there is no policy requir-
ing use of foreign language ballots (or notices) by the Board as a whole
and no policy forbidding their use by the Region involved in the matter
here. See Precise Castings, supra at 1161 (since Marriott the Board
has made it clear that it has no policy requiring the use of ballots in
multiple languages); Superior Truss & Panel, Inc., 334 NLRB 916, 919
(2001) (The Board has made it clear that it has no policy requiring the
use of ballots in multiple languages.).
Precise Castings, supra, was a case in which the Seventh Circuit
Court of Appeals affirmed the Board’s refusal to provide translated
ballots for an election where “[t]en of 41 employees eligible to vote
read and speak Spanish only.” Bally’s contends that the court reached
that result only because in that case the notices of election had been
translated. That was a factor in the court’s reasoning, and the court did
assume that notices would be translated upon request of either party,
but, fairly read, the case does not suggest that in the absence of trans-
lated notices the election would have been invalidated. In any event,
even assuming, wrongly, that the case held that, it involved, as noted, a
situation where nearly 25 percent of eligible voters did not speak or
read English, something completely undemonstrated here.
10 Superior Industries, 289 NLRB 834 fn. 13 (1988) (contrary to the
Respondent, the Casehandling Manual contains guidance, not rules).
Board elections. Section 11315.1 of the manual clearly makes
use of foreign language notices, and other materials, a matter of
discretion based on a showing of need:
As detailed in Sec. 11315.2, notices of election, including side
panels and/or center panels and/or ballots in languages other
than English, may be provided in addition to English notices,
where the need is shown in appropriate circumstances. . . .
Because the preparation of foreign language notices
may be extremely costly and may delay the election, the
Regional Director should carefully evaluate requests for
such notices. In deciding whether to provide translated no-
tices and/or ballots, the Regional Director may consider
the following factors:
(a) the portion of the voting group which speaks a for-
eign language and does not read English
(b) the number of foreign language translations that
would be required to accommodate these voters
(c) whether written communication between the em-
ployer and these employees is in English or their native
language. (The mere fact that employees may communi-
cate among themselves in a language other than English is
insufficient to demonstrate that they do not understand
written English.).
In this case, the Regional Director’s request for information
substantiating the Employer’s request for foreign language
notice and ballot translations was clearly suggested by and in
accordance with the casehandling manual. Indeed, consistent
with the casehandling manual, as recently as 2001, in a memo
submitted into evidence at the hearing in this case, the Regional
Director had instructed Region 4 employees that
Because translation costs can be substantial, it is important
that, before agreeing to provide any translations, we find out
from the parties enough information to enable us to evaluate
whether there is a real need to have either the Notice of Elec-
tion or the ballots translated into a foreign language. Accord-
ingly, when you have such a case, please ascertain from the
parties (1) the number of foreign languages and /or dialects
involved, (2) what portion of the voting group reads only a
foreign language and (3) how the Employer (and/or the Union
during its campaign) communicates written information to the
voters who do not read English. The determination of what
materials, if any, should be translated, will depend on the an-
swers to these questions.
The Region’s inquiry into these matters is consistent with the
policy of allowing the regions discretion to determine whether
translations are necessary. The Employer’s suggestion that the
Region’s inquiry is illegitimate is not only without support in
precedent, it is farfetched. The provision of foreign language
notices—particularly of nine foreign language notices as re-
quested in this case—is far from a ministerial act. To adopt the
position urged by the Employer would open the door to signifi-
cant cost and delay without permitting a region any opportunity
to test the substantiveness of a party’s request for foreign lan-
guage translation. It would be unwise for the Board to follow a
rule that requires translation upon request without permitting
the region to investigate the appropriateness and need for the
BALLY’S ATLANTIC CITY 323
translation. In determining whether to provide the foreign lan-
guage materials, the region must be guided by the necessity of
ensuring that the election is carried out in manner that does not
hinder (or have a reasonable tendency to hinder) the exercise of
employee free choice. In particular, an assessment of the use of
English in the workplace is significant to this determination.
Bally’s disputes the relevance of this inquiry, but its position is
at odds with Board precedent.11
II. THE EMPLOYER’S NATIONWIDE REVIEW OF NOTICE OF ELEC-
TIONS USED IN OTHER CASES
The conclusion that there is no rule requiring the translation
of notices upon request is not undercut by the argument most
vigorously advanced by Bally’s: that is, its claim that docu-
ments obtained in unrelated cases, produced to Bally’s by
Board Regional Offices (from across the country including
Region 4), pursuant to the Freedom of Information Act (FOIA),
5 U.S.C. § 552, “reveal a consistent nationwide policy to grant
a request for foreign language Notice of Election—excluding
the casinos operating in Atlantic City.” (Emp. Br. at 16.)

11 See, e.g., Northwestern, 226 NLRB 653, 654 (1976) (Here we note
that all of the Intervenor’s previous collective-bargaining agreements
with the employer have been printed only in English. As contracts
with, notices to, the employees by both the Employer and the Interve-
nor have been in English only. The intervenor’s dues-checkoff authori-
zations have been printed in English only. These facts tend to show
that the use of notices and ballots in English only could not have had an
adverse impact on the election, and hence the record does not establish
any basis for setting the election aside); King’s River Pine, 227 NLRB
299 fn. 2 (1976) (“As to the Employer’s objection that the Regional
Director failed to furnish bilingual notices and ballots for the election,
we find that the Employer has failed to present evidence that a substan-
tial number of Spanish surnamed employees could not read or under-
stand English, and therefore, the absence of bilingual ballots did not
constitute sufficient grounds for setting aside the election.”).
Bally’s contended to the Region that “[i]t is not relevant how com-
munication is handled on a day to day basis.” Bally’s bases it position
on a misreading of Kraft, Inc., 273 NLRB 1484 (1985), where a Board
majority overturned an election due to erroneous translations and a
layout so flawed it “makes for difficult reading even for the English-
reading voters.” In Kraft, the Board found that “the multilanguage
ballot furnished by the Region is so seriously defective on its face as to
interfere with the employees’ ability to exercise their election choice”
and rejected the regional director’s conclusion that use of English in
campaign literature, a succession of labor agreements, and the dues-
checkoff cards, “somehow justified the poorly translated Board ballot.”
In this context, the Board stated,
[w]e attach no weight to the fact that non-English reading employees
may be forced to deal with only English translations in the workplace.
Rather, it is the Board’s responsibility when a multilanguage ballot is
deemed appropriate to supply a ballot that can be comprehended in all
the languages appearing on the ballot.
Bally’s quotes the above language and suggests that it shows that
use of English is irrelevant to whether the region should have provided
translated notices or ballots. This is a misleading and out-of-context
reading of Kraft. The Board’s conclusion in Kraft was that when a
multilanguage ballot is deemed appropriate because of the acknowl-
edged presence of non-English reading employees, it is the Board’s
responsibility to create and use an intelligible ballot, with legible layout
and translations. With an illegible or confusing document, it is no
defense to an objection to maintain that English is so heavily relied
upon that the garbled nature of the ballot is irrelevant.
In preparation for the hearing in this matter Bally’s submit-
ted extensive FOIA requests to Board headquarters and Re-
gional Offices around the country. Its initial request sought
copies of all notices of election printed in languages other than
English for representation elections, for the period January 1,
2006, to June 1, 2007. In response the regions (there are 32
Regions, some with offices in more than one city) provided
hundreds of foreign language notices, overwhelmingly but by
no means exclusively in Spanish.12
Bally’s followed its request with another seeking correspon-
dence from the Regional Offices during this same period in
which the Region had rejected a request to provide a notice of
election in a language other than English.13 This yielded the
production of one instance of correspondence between a re-
gional office and a union attorney in which a request for Span-
ish language ballots was denied because of a failure of the at-
torney to provide evidence of the need for such ballots. (Emp.
Exh. 9 at 2404–2406.) It also included Region 4’s March 14
rejection of a request by another casino for translation of no-
tices of election and ballots into Chinese 5 working days before
the scheduled election. (Emp. Exh. 9 at 2354–2356). In that
case, the Regional Director concluded that the request was
untimely, and, in addition, found that the Employer had “failed
to demonstrate that there exists a need for Chinese transla-
tions,” basing her conclusion on the employer’s communication
with employees only in English and reliance on bilingual em-
ployees for assistance as needed on an informal basis. The
Employer’s special appeal to the Board of this decision was
denied “for essentially the same reasons noted by the Regional
Director.” (Emp. Exh. 9 at 2356.) Finally, at the hearing in
this case, the Regional Director’s representative introduced into
evidence an April 30 letter from another representation case, in
which the Regional Director denied a request that notice of
elections be translated into Mandarin Chinese and Vietnamese
or, alternatively, that translators attend the election. (B. Exh.
4.) Similar to her conclusion in the instant case, in that case the
Regional Director found that the employer had failed to demon-
strate a need for translations, by showing only that the em-
ployer used foreign language interpreters during its campaign
and that for 35–45 percent of the unit English was a second

12 According to information and computer data provided by the Of-
fice of the General Counsel at NLRB headquarters there were over 600
such cases during the period at issue. (Emp. Exh. 9 at 98–139), al-
though 107 were petitions filed prior to that period. The list appears to
include cases in which election activities occurred after January 1,
2006. The number submitted by each region varied dramatically. Of
course, so does the number of elections in each region during the period
and, certainly, the incidence of non-English speaking work forces
within the geographic area administered by a Regional Office. Accord-
ing to these records, two of these cases involved the translation of no-
tices into six languages. None involved translation into more. The
overwhelmingly majority involved translation of one, and sometimes
two languages. Region 4 submitted notices for eight cases for this
period, none translated into more than one language.
13 This request was followed by one to each Region seeking the same
information but appending a list of case names and numbers, received
from the Board’s headquarters that had originated in the Region during
the requested period. This enabled the Regions to search for the re-
quested information with reference to specific cases.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD324
language. In that case, the employer, according to the Regional
Director, had refused the region’s request that it provide evi-
dence of how the employer communicates with employees in
its operation of the facility.14
The remainder of responses from regional offices (including
from Region 4) indicated that there was no further correspon-
dence during this period responsive to the request. A few
added that no requests had been rejected during this period,
others stated that no records are kept of such requests but the
region had no recollection of rejecting any such requests. 15
At the hearing, I expressed skepticism about the relevance of
these documents, and about the Employer’s view that they
showed either arbitrariness or discrimination by the Region
against it (or the casino industry). But given the Employer’s
view of the centrality of the documents to its arguments, I ac-
cepted these documents (over the Union’s objection) into the
record to permit consideration of the issues raised by the Em-
ployer after briefing.
Having further considered the matter, I conclude that the
documents do not advance the Employer’s objection. They do
not prove, as Bally’s claims that the Region acted arbitrarily or
discriminatorily in denying the request for translations in this
case. They show, for sure, that translated notices of elections
are used by regions throughout the country.16 And the lack of
correspondence rejecting requests for foreign notices does sug-
gest that the requests are granted (and perhaps, even rejected)
without much ado. But these documents tell us nothing about
the reasonableness of the request, or the Region’s response, in
this case.

14 Bally’s objected at trial, and objects in its brief to the introduction
of this document, which was not supplied to it in response to its FOIA
request. Bally’s contends that the document should be stricken as a
penalty for not producing it pursuant to the FOIA request. The Region
took the position at trial that the document fell within a FOIA exemp-
tion privileging its nonproduction. I admitted the document at trial
because it is relevant—at least, it is as relevant as the Employer’s evi-
dence in Exh. 9 as a whole—and because it fell within the time period
for which the Employer had already introduced hundreds of similar
documents in an effort to offer a complete picture of the issues raised
by the Employer. Given the Employer’s contentions, the record was
better served by including all pertinent documents for this time period.
Whether the Region or the Employer is right with regard to FOIA obli-
gations, I leave to the parties to pursue, should they choose, under
FOIA’s enforcement mechanisms. See 5 U.S.C. 552 (a)(4)(B). In any
event, I do not think inclusion or exclusion of this document is critical
to any party, or to the resolution of this case.
15 I grant the Employer’s amended motion to admit supplement to
Emp. Exh. 9 (to which no opposition was filed) seeking to introduce
further responses, received posthearing to this second round of re-
quests. As marked on the bottom right corner of the submitted docu-
ments these pages are admitted into the record as pp. 2462–2465 of
Emp. Exh. 9.
16 A database of active representation cases provided by Board head-
quarters to the Employer (Emp. Exh. 9 at 2196–2200) showed 4800
such cases. Nearly 300 of those were filed prior to January 1, 2006, but
were active cases, often with an election scheduled, between January 1,
2006, and June 1, 2007. Thus, based on the data supplied by the Board
headquarters, approximately 11–13 percent of representation cases
during this period involved foreign language notices.
It is not just that none of the elections referenced in Em-
ployer Exhibit 9 appear to have resulted, or been the product of
a request for the translation of nine (or eight, or seven) foreign
languages, as was requested here. Two cases involved six lan-
guages, but we have no idea what factors were relied upon for
that extensive a translation to be deemed warranted. But even
beyond that obvious distinction, we know nothing about the
circumstances in each case. We do not know if there was an
objection to the translation as was interposed by the Union
here. We do not know if there were oral discussions between
the parties reaching an agreement with the Region on whether
and to what extent translations were warranted. We do not
know whether in the cases where translations were undertaken,
the lack of English in the bargaining unit was manifest and
known to all parties. We simply do not know anything about
the election cases in other Regions (or the other cases from
Region 4) that prompted the translation request. This is, as a
practical matter, not subject to ascertainment. Each case may
have different factors and those cases were not litigated, so
reliance on these documents means reliance on matters that
were never sharpened, challenged, or defended in litigation.
Perhaps, it is Bally’s request, under the circumstances here, that
is extraordinary, and not the Region’s response. The docu-
ments from other cases tell us nothing about this case.
The appropriateness of the Region’s determination in this
case is measured by whether that determination is consistent
with Board policy on the translation of notices. That policy is
found in Board precedents, not in a review of the unlitigated
and uncontested decisions of individual Regions in response to
requests for translation in cases around the country. In order to
succeed with its objection to the failure of the Region to trans-
late the notices of election, the Employer must show that this
failure resulted—in this case—in undermining the election
process. That is the standard or “rule” that the Board requires
the region to satisfy in conducting an election. Whether, in
other cases, the regions have provided translated notices of
election is irrelevant. See Superior Truss & Panel, Inc., 334
NLRB 916, 919 (2001) (in view of Regions’ discretion,
“[t]herefore, the Employer’s argument addressing other Re-
gions use of foreign language ballots is simply irrelevant”).
III. THE UNION’S CONTENTION THAT THE EMPLOYER’S OBJECTION
SHOULD NOT BE CONSIDERED
As discussed, in response to the Employer’s request for
translation of the notices and ballots into nine foreign lan-
guages, the Region sent Bally’s a list of ten detailed questions
in an attempt to assess the need for the translation. One could
contend that fully answering all 10 questions would be unduly
burdensome but Bally’s did not. Instead, it simply asserted in
response to the Region’s inquiry that,
In reiteration of my correspondence of April 23, 2007,
it continues to be Bally’s position that a substantial portion
of our Dealer population do not fully read or understand
English. It is not relevant how communication is handled
on a day to day basis. What is relevant is that in order to
avoid disenfranchising a substantial portion of Bally’s
non-English speaking Dealer population, the ballots must
be in a language which will permit each of them to prop-
BALLY’S ATLANTIC CITY 325
erly exercise their right to vote in the election in this
case.17
The lack of cooperation with the Region’s inquiry is mani-
fest. It is consistent with the position taken postelection that
Bally’s is entitled upon request, with nothing more, to receive
foreign language translations of notices for use in the election, a
position that, as I have discussed, is without support in logic or
precedent. Indeed, it is notable that the Region’s denial of
Bally’s request on May 3, explicitly cited Bally’s failure to
provide sufficient evidence to demonstrate that translations
were necessary or any evidence to show that voters would be
unable to understand the notices or ballots. Although this ex-
planation was sent to the Employer a full month before the
election, Bally’s took no steps to provide the requested infor-
mation, preferring, apparently, to reserve any evidence for pos-
telection objections.
The Union contends (U. Br. at 9–10) that Bally’s refusal to
cooperate with the Region’s inquiries should bar it from intro-
ducing evidence postelection that “should—and could—have
been presented when the Region originally made its requests
for information.” As the Union puts it, “[a]ny other result
would reward a party for refusing to provide requested informa-
tion to the Region in such circumstances.”18
This argument is not without force. As every practitioner
(on every side of the labor-management divide: union, em-
ployer, and Government) knows, cooperation is the lifeblood of
the administrative law system. Penalties for noncooperation
abound. Charges are dismissed, complaints are withdrawn, and
summary findings are made based on a lack of cooperation by a
party. Issues are waived before the Board if not brought to the
attention of the administrative law judge. Issues not raised
before the Board may not be raised in court challenges. The
reasons are obvious and profound. At each stage of the admin-
istrative process the Agency must be permitted to resolve issues
that could stand in the way of efficient, timely, and just admini-
stration of the Agency’s mission. Permitting the litigation of
issues that could have and should have been considered earlier
in the administrative process comes at great cost in terms of
expenditure of resources, time, delay, and justice. This situa-
tion is illustrative. The Region requested the Employer to pro-
vide support for its claims that translated election materials
were necessary. Had the Employer cooperated, it may have
convinced the Region to accede to its request, and the election
would have gone forward in the manner urged by Bally’s. By
not cooperating, Bally’s is complicit in creating circumstances
that it now claims warrants a new election. And of course,

17 I note but will otherwise ignore for purposes of the analysis that
the above response to the Region says nothing about notices of elec-
tions, but insists only that translated ballots must be provided. How-
ever, I will consider this an inadvertent error. I believe the Region
understood that Bally’s maintained its original request that ballots and
notices of election be translated.
18 At the hearing, the Union raised and preserved this objection to
the introduction of any evidence by the Employer offered on language-
related issues among the work force. I decided to take the Employer’s
evidence without prejudice to the Union’s argument (in effect, condi-
tionally overruling the Union’s objection) but invited the Union to raise
this issue in its brief.
perhaps perversely, the stronger Bally’s case at the hearing that
the absence of translations undermined the employees’ free
choice, the more it should be deemed responsible for the elec-
tions’ failings. To overturn the election on these grounds now
would, in fact, reward Bally’s for its noncooperation, to the
detriment of the Board’s election process. I am sympathetic to
the argument that Bally’s should not be permitted to overturn
this election, forcing over 1100 employees back to the polls,
because of arguments and evidence it could have presented in
response to the Region’s questions on this very subject.
There would be, however, costs to a rule that prohibits
Bally’s from litigating an objection on an issue as to which it
was requested but refused to provide information preelection.
If Bally’s concerns about the notice of election are warranted,
then it is the employees’ free choice that has suffered because
of Bally’s noncooperation. The non-English speaking and
reading employees are left to the willingness and competence
of the union and employer to request and then support the re-
quest for translated election materials. However, it is also true
that this is the case in nearly every representation case and most
unfair labor practice cases. The union and employer parties
make decisions that impact the rights of employees in all as-
pects of the representation process. That reliance on the em-
ployer and union to identify and shape some issues, and ignore
others, is a normal part of the process.
Were I writing on a blank slate, I might be inclined to reject
Bally’s effort to litigate this issue. However, I think that the
Board’s decision in Northwestern Products, 226 NLRB 653
(1976), precludes the approach urged by the Union.
In Northwestern Products, an incumbent union intervenor
raised postelection objections to the use of English only ballots
and notices. Prior to the election the parties (including the
employer, the union petitioner, and the intervenor union) had
stipulated that the notices and ballots would be in English only.
In an argument similar to that advanced by the Union here, the
Board explained that “[t]he Petitioner contends that the Inter-
venor’s objections must be overruled on the ground that the
parties had agreed to conduct the election solely in English and
stipulated that they would not challenge the election because of
this fact.” Indeed, in Northwestern Products, the intervenor
had been asked whether it was requesting bilingual ballots and
notices and had indicated it was not. The Petitioner further
objected on grounds that the language difficulties of employees
failed to establish that they did not understand the ballot. In
Northwestern Products, the Regional Director had granted the
objection and overturned the election because of the language
problems in the bargaining unit. The Board rejected the Re-
gional Director’s recommendation, but in doing so stated that
we do not place total reliance on the stipulation of the parties.
Any such stipulation, even one for bilingual ballots, is a fac-
tor, but nevertheless, is not controlling. The Board’s decision
must be based on a showing that there was interference with
the election, resulting from the use of notices and ballots
printed only in English. . . . Although, as indicated above, a
stipulation such as involved here may not be the decisive fac-
tor in determining whether there has been interference with an
election, it is entitled to consideration and some weight.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD326
The implications of the Board’s view for this case are ines-
capable. If a preelection stipulation to use English-only notices
and ballots does not bar a postelection objection to the use of
English only notices and ballots, Bally’s failure to cooperate in
establishing the need for them cannot bar its posthearing objec-
tion over the failure to grant its request. Therefore, although I
am sympathetic to the union argument, I think that Northwest-
ern Products represents the Board’s precedent on this question.
I therefore reject the Union’s position that Bally’s objection and
evidence in support of it should not be considered.
IV. THE EMPLOYER HAS FAILED TO DEMONSTRATE THAT THE
FAILURE OF THE REGION TO TRANSLATE THE NOTICES HAD A
TENDENCY TO INTERFERE WITH EMPLOYEES’ FREEDOM OF CHOICE
Provided the opportunity at the postelection hearing, the
Employer has failed to show that the Region’s refusal to trans-
late the notices of election resulted in interference with the
employees’ free choice. That is the nub of the issue presented
by this objection. Northwestern, supra (“the use of notices and
ballots in English only could not have had an adverse impact on
the election, and hence the record does not establish any basis
for setting the election aside”); Superior Truss & Panel Inc.,
334 NLRB 916 (2001) (refusing to overturn election in unit
where 10–15 of 28 eligible voters did not understand, speak, or
read English, despite claims that English only ballot and defi-
cient translation of notices warranted rerun, where there was no
showing of confusion among voters regarding election).
At the hearing, Bally’s convincingly demonstrated that many
of the dealers speak English as a second language, and that
when given an opportunity, they prefer to speak their native
tongue to one another. Supervisors who share a native tongue
with someone they supervise share in this preference and prac-
tice. As, Douglas Vargas-Brenes explained, “[i]t comes natu-
ral” and leads to “[b]etter understanding.” None of this demon-
strates that dealers are unable to understand written English or
are unable to understand voting instructions in English. That is
a threshold issue for Bally’s case and it is unproven on this
record.19
As to evidence in support of that proposition, the evidence is
very limited. In the first place, as an employer, Bally’s over-
whelmingly operates in English and English only. Its hand-
book, which is an extensive compendium of rules and regula-
tions governing all aspects of employment, includes an ac-
knowledgement which each employee must sign indicating that
“I am responsible for compliance with these regulations, poli-
cies, and procedures. I understand it is my responsibility to

19 Bally’s position on brief appears to be that the assertions about the
limited English ability of hundreds of employees contained in Tart-
aglio’s correspondence to the Region must be accepted as true. That is
not the case. Indeed, Tartaglio’s letters, which, in any event, are hear-
say for purposes of the truth of matters asserted therein, are carefully
phrased in a manner that reveals their foundational problems. For
instance, he writes on April 27, that “it continues to be Bally’s position
that a substantial portion of our Dealer population do not fully read or
understand English.” His initial April 23 request to the Region stated
that “[t]he majority of the employees listed below, to our knowledge,
do not speak English well and do not read English.” This phrasing
reflects the author’s lack of first-hand knowledge regarding these decla-
rations.
read the handbook carefully and ask questions of my supervisor
or the human resources department if there is information I do
not understand.” It is fair to assume that Bally’s considers this
acknowledgement as grounds for holding employees responsi-
ble for compliance with the rules in it. Clearly, Bally’s intends
for dealers to read the handbook and expects that they can.
As discussed above, Bally’s operates in English. Its applica-
tions for employment are taken in English and there is no evi-
dence that translation is used in hiring or the interview process,
although the hiring of foreign born dealers is quite common.
Written employee discipline is meted out in English only.
While the strict “English-only” rule of years past barring the
speaking of any language but English with customers has been
relaxed, this demonstrates only a willingness to allow dealers to
speak a foreign language with like-skilled customers. It does
not demonstrate the inability of dealers to communicate in Eng-
lish. The assertions in its initial request to the Region that hun-
dreds of the dealers cannot read or understand English is en-
tirely unproven on this record.
Bally’s relies upon the showing that translation is used in the
facility on an “ad hoc” basis. However, I agree with the Re-
gional Director (who entertained this argument preelection) that
this is insufficient to demonstrate the need for foreign language
notices to enable employees to participate meaningfully in the
election. The ability of Bally’s to operate in English, with reli-
ance only on “ad hoc” translation if and when available, sug-
gests that the language problem is extremely limited in scope
and severity. It shows that there are employees who prefer to
have some information translated. But, since it is ad hoc, these
same dealers must also be able to perform their work, maintain
their jobs, and go about their business without translation.
Obviously, the dealers have the ability to operate games and
interact with customers in a company that, according to Bally’s
executives, makes customer service a priority. Obviously the
dealers are able to get hired and maintain employment in a
workplace where management hires, manages, disciplines, and
reports in English. Indeed, because of the lack of showing that
any bargaining unit employees cannot read enough English to
cast ballots meaningfully, this case does not require reaching
the issue of whether, among employees who cannot read Eng-
lish, foreign language accommodations are necessary.
In any event nothing in the record provides the slightest evi-
dence that any employee language limitations suggested by
Bally’s interfered with the exercise of free choice by employ-
ees. Bally’s claims to the contrary are speculation, backed by
no evidence. “The Board has held in numerous cases that it
requires more than mere speculative harm to overturn an elec-
tion.” Transportation Unlimited, 312 NLRB 1162 (1993).
Moreover, Bally’s extensive use of interpretation services in its
preelection employee meetings significantly undercuts Bally’s
postelection speculation that employees did not understand
balloting procedures. Prior to the election, each dealer was
required to attend roughly five meetings, each lasting at least an
hour, at which translation equipment in multiple languages was
available. These meetings included information on balloting
and election procedures and specific descriptions using a sam-
ple ballot about how to cast a ballot. Bally’s decision to pro-
vide translated explanations of the election process further
BALLY’S ATLANTIC CITY 327
erodes even Bally’s speculative claim that the election process
suffered from employee confusion or inability to participate
meaningfully due to the Region’s failure to translate the no-
tices.
In sum, in this case the Regional Director exercised the dis-
cretion afforded her by the Board to determine whether trans-
lated notices were necessary for the integrity of the election.
She decided they were not, in part, because of Bally’s refusal,
upon the Region’s request, to provide substantiating informa-
tion for its request for translated notices. The Employer has
failed to show—either preelection in response to the Region’s
inquiry, or postelection through evidence presented at the ob-
jections hearing—that the use of only English notices of elec-
tion resulted in any voter confusion or in any way adversely
impacted the election. Accordingly, I overrule the Employer’s
Objection 1.
Objection 2: The Conduct of Union Observer Suisung Wong
Bally’s dual rated floor person Sangita Patel served as an ob-
server for Bally’s in the representation election. (At the time of
the election she was a dealer, but since the election has been
promoted to dual rate floor person.) Her union observer coun-
terpart was Suisung Wong. During their election shift, Patel
and Wong sat side-by-side behind a table. Three other pairs of
observers sat farther down the length of the table. The observ-
ers sat behind the table—described as about 4-feet wide—and
checked in voters by last name as they came to vote. The
Board’s notice of election with a sample ballot was on the table
in front of Patel and Wong facing voters, upside down to Patel
and Wong. A sign hanging vertically in front of them on the
table indicated that voters with last names beginning with T–Z
were to register with Wong and Patel. Other sets of observers
to Wong and Patel’s right sat in front of signs designating other
portions of the alphabet. When a voter approached the table
one of the observers would ask for the voter’s name, find it on
the list of eligible voters, check off the name, and then the voter
would be given a ballot by a Board agent and directed to the
voting booth.20 Wong sat to Patel’s right. Standing off to the
left, between the voting booths and Patel, was an agency em-
ployee, Field Examiner Mary Leach, who was in charge of
running the election.
Patel testified that she noticed Wong21 reaching across the
table and pointing to the yes box on the sample ballot with the
eraser end of his pencil when a voter would come into the
room. Patel testified:
I noticed the dealer next to me was—he—we both had a pen-
cil in one hand and he was sitting next to me and the paper
was little far away and he was pointing to the “Yes” box be-
cause the people’s [a] little far and he kept pointing [at] it
every time that he see dealers coming in and I observed that

20 In accordance with the Employer’s position (and the stipulated
election agreement) Patel would challenge any voters who held dual
rate floor positions. In accordance with typical Board procedures their
ballots were segregated from those of unchallenged voters.
21 Patel was not sure of the name of this union observer, she de-
scribed an “Asian man” and was unsure of his name. However,
Wong’s testimony leaves no doubt that he was paired with Patel and
that he is the union observer to whom she was referring.
he kept doing it. I didn’t t[ell] her right away, I observed him
for more than 10 times and then I told Mary Leach, tried to
get her attention to it that he’s doing this and which is not
right. So she went to him, told him he can’t do it, took the
paper and moved it away.
Patel testified that when Leach approached Wong, Wong de-
nied Patel’s accusation and told Leach that he was not pointing
to the yes mark on the sample ballot but was pointing to the T–
Z notice to show a voter which line they should get in. Accord-
ing to Patel, Leach moved the notice of election, and that “was
[the] end of [the] story” and the issue was closed.
Wong also testified. For the most part his account of the vot-
ing procedures and events were the same as Patel’s. But he
vigorously disputed that he had pointed to the yes box on the
sample ballot, or even to the notice of election. In accordance
with Patel’s testimony, Wong explained that after Patel told
Leach that Wong had pointed to the ballot Wong protested,
telling
Leach that he had pointed at the alphabet and not at the sam-
ple ballot. Wong explained that some voters, tired and coming
from work, had gotten in the wrong line and he was pointing
them to the correct line. Wong insisted that he pointed to the
T–Z once, using the pen that he and Patel each had to check in
voters. At that point Patel told Leach he was pointing to the
yes box, Leach talked to him, moved the notice of election, and
that was the end of it.
Patel and Wong’s stories cannot be reconciled, although
there is reason to believe that neither account is entirely accu-
rate. Wong was a voluble, excitable witness, who, it seemed to
me, felt unjustly accused of wrongdoing and was determined to
protest his innocence regardless of the particular question put to
him.22 I do not accept his testimony that he only pointed once
to the alphabet in an effort to direct voters to the right line. It is
hard to imagine him sitting quietly if a voter appeared the least
uncertain about what direction he was to go in.
Having said that, I am not convinced by Patel’s testimony ei-
ther. Patel testified with a great deal of certainty and assured-
ness, yet I was left wondering if the story had not hardened in
her memory with greater clarity than there was at the time. Her
testimony was that “more than ten times” Wong pointed to the
yes box in the sample ballot with the rubber of his pencil. She
declared (when I asked, although she had not stated this previ-
ously) that in each of the approximately 10 instances the eraser
end of the pencil touched the paper of the sample ballot. I
doubt this. First, and although it is not a particularly critical
point, I wonder about these pencils (Patel was sure it was a
pencil, and not a pen). Patel claimed both she and Wong had

22 Wong spoke with a thick accent, and he often mixed up the pro-
nouns he and she, especially when he spoke excitedly (which was of-
ten). But I do not believe he had any significant difficulty understand-
ing the questions posed to him. On brief, Bally’s contends that “Wong
has a very limited understanding of English” and was “English-
challenged” but I think that misstates the matter. If I agreed it might
explain some of the agitated behavior of Wong on the witness stand,
and his testimony that he did not meet with anyone to discuss his testi-
mony in advance, when union counsel made clear that he did. But I do
not think these problems were attributable to language difficulties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD328
pencils in their hand. Wong’s testimony, that each observer
held a pen (one blue, one red, with the union observers using
one color and the Employer observers using another) is consis-
tent with the testimony of other observers (see, testimony of
Employer observer Kenneth Sarnes), and it is more plausible as
method to check in voters. I do not suggest that Patel was “ly-
ing” about the pens and pencils, but if she was mistaken, and I
find that she was, it begins to suggest that the certainty with
which she presented her testimony warrants scrutiny. More
important, I think that it is a reasonable question why, if
Wong’s conduct was so blatant, with his pencil (or pen) touch-
ing the sample ballot paper ten times, Patel waited for him to do
it in the case of 10 voters before she raised it with the Board
agent Leach, who was standing next to Patel. The answer is
found, I believe, in Patel’s response to this very question. She
said, “[i]ts not like I waited, I wanted to make sure that’s what
[he wa]s doing.” Patel waited, I believe, because it was not, in
fact, obvious or clear what Wong was doing. It would have
been had his pencil been touching the yes box or anywhere near
it, but his pointing in the vicinity of the notice of election and
T–Z designation (just beyond the notice of election) would not
have been so clear. In other words, if Wong’s actions had been
as blatant as described by Patel, I do not believe she would
have waited. She waited, by her own admission, because it was
not clear that Wong was pointing to the yes box, or even to the
sample ballot.23
Under these circumstances, I do not believe the evidence es-
tablishes that Wong engaged in the misconduct alleged, i.e.,
repeatedly pointing to the yes box on the sample ballot as vot-
ers approached the table. I find that he pointed in the vicinity
of the sample ballot and the T–Z designation. I believe he did
this more than once, perhaps as many as 10 times. I find he
stopped when instructed to stop by the Board agent. I think that
the evidence does not establish that he intended to or did point
to the yes box on the sample ballot. There is no evidence that
any voter was under that impression. Accordingly, I overrule
the objection as unsubstantiated factually.
Objection 6, 8, 9: The Incident at Joseph Wanek’s Home
Joseph Wanek is employed as a part-time dealer for Bally’s.
He testified to the following: on May 29, the Tuesday before
the upcoming weekend election, at approximately 3:15 to 3:20
p.m., he was leaving his home to pick up his children from their
school bus stop. Wanek testified that as he came out of his
house a white pickup truck plastered with UAW stickers and

23 Bally’s explains Patel’s delay in bringing Wong’s conduct to the
Board agent’s attention as “consistent with the culture in which she was
raised.” I reject that wholly unsubstantiated explanation. Without
reference or regard to the cultural norms of her native country, my
impression of Patel was that she would not have been reticent or hesi-
tant in the least in carrying out her observer duties. If she were to err,
my impression is that she would be over not under zealous, and indeed,
that may have been what happened here. Wong, describing Patel’s
work as an observer, said that “her actions is very quick and smart. . . .
[S]he handled the book, the names, she’s tough for everything.” I
suspect Wong is accurate on this. I find that Patel’s delay in approach-
ing Leach reflects the ambiguousness of Wong’s actions, not any ten-
dency (personal, cultural, or otherwise) on Patel’s part to delay report-
ing perceived violations.
placards pulled up to his house. Two men exited and asked him
if his name was Joseph Wanek. Wanek asked, “who wants to
know?” and the men presented ID’s and said they were repre-
sentatives of the UAW. One said he was from Buffalo and the
other might have said he was from Pittsburgh. One of the men,
who had a clipboard with him with a list of names, told Wanek
that his name was on the list and “we’re going around to find
out how you’re going to vote on Saturday for the vote. And we
don’t want to happen to you what happened to the dealers at . . .
Hilton.” Wanek understood this as a reference to the fact that
the Hilton dealers voted down UAW representation. Wanek
refused to tell them, and the one said, “[W]ell, you have to tell
us.” Wanek again refused to tell them, declaring that “that’s
my business and my business alone.” The second individual
then said, “I guess you have to go on the list.” Wanek asked
“what list” and the second organizer said, “[Y]ou’re going to be
one of the first ones to go.” Wanek accused them of threaten-
ing him and ordered them off his property. They initially re-
fused to leave, but then Wanek punched 911 into his cell phone,
held it up to reveal the numbers, and threatened to call the po-
lice if they failed to leave. The men returned to their truck.
Wanek left to pick up his children at the bus stop only about
100 yards away. While waiting at the bus stop Wanek said he
looked in his mirror and saw that the UAW representatives
were parked behind him at the bus stop. Then a police car hap-
pened to drive by and the truck left. At that point Wanek called
Michael May and told him what had happened. The conversa-
tion was short, 2 minutes according to the cell phone records.
In his testimony, May confirmed that Wanek called him
“around Memorial Day . . . extremely upset that he had been
visited by the UAW folks, and basically ran through a little bit
of what occurred.” May told him to “see me tomorrow and
we’ll talk about it then.” In his testimony, May did not cor-
roborate Wanek by offering details of the events conveyed by
Wanek.
When Wanek went to work the next day he discussed the is-
sue with a number of people. He testified that he “told every
pit boss” about the incident. He also discussed it with voting-
eligible dealers, although he could name very few with whom
he spoke about the incident. He listed pit bosses, and then three
individuals that he did not identify as bosses or dealers, and
then one individual he identified as a dealer that he told.
Wanek’s testimony was corroborated, to some extent, by a
number of witnesses. Joe Cella, a Bally’s pit manager, con-
firmed that on the Thursday before the election, May 31,
Wanek and he were talking while waiting for customers at a
game Wanek was dealing. Cella testified that Wanek told him
that a couple of UAW representatives had come to his property
in a pickup truck and made “threatening remarks” and acted in
a “threatening manner.” Cella reported that Wanek said he had
been shown a list or paper and that when he asked the UAW
representatives to leave they did not. Cella testified that Wanek
had told him how he opened up his cell phone and dialed 911.
Bally’s pit manager, Sam Lagrotteria, testified that in the week
prior to the election, Wanek approached him and “grabbed me
and he says do you believe this shit. . . . He said these guys
from the Union grabbed me the other day in front of my house,
they were camped out in front of the house.” Lagrotteria testi-
BALLY’S ATLANTIC CITY 329
fied that Wanek told him that the union representatives wanted
to know how he was voting in the election, that they did not
want what happened at the Hilton to happen here, and that
“they told him that he would be among the first to go, if they
did take control.” Lagrotteria testified that this conversation
was between just Wanek and himself but that it occurred on the
casino floor so there are always other people around. Lagrotte-
ria testified that he did not know if anyone overheard the con-
versation. Lagrotteria discussed the incident with other pit
bosses and floor people as “more or less cafeteria talk.” Asked
whether he discussed it with any people eligible to vote in the
election (i.e., dealers) Lagrotteria said he could not recall doing
so but that it was possible.
Dealer Joyce Kelly testified that on Saturday, June 2, while
taking a smoking break with Wanek, he told her that the UAW
had come to his house “and that they had threatened him, and
he was not very happy about it. And that he had told them to
get off his property.” Kelly could not recall the nature of the
threats or whether Wanek described them but she said, “I just
know that in my mind it was that he had been threatened. I
don’t remember what he said specifically.”
Wanek’s testimony was sharply disputed by UAW Staff Of-
ficial John Garvey. He testified that he and another UAW
staffer made a house call to Wanek on May 30 (the day after
Wanek said the visit occurred). Garvey testified that when he
and the other UAW organizer, Scott Adams, knocked on the
door there was no answer. As they started to leave Wanek
came out of the house. According to Garvey, Wanek had his
phone to his ear and motioned for them to wait. When he fin-
ished on the phone he said “I know who you are.” Garvey said
they explained that “we are just out talking to card signers to
see if there are any last minute questions about the election.”
Wanek said that he did not have time to talk because he had to
pick up his child. They said, “[T]hank you” and Garvey thinks
Adams said, “Well I hope you do the right thing.” According
to Garvey, the entire encounter lasted about a minute. Garvey
denied that there was any reference to the Hilton, that they
asked Wanek how he would vote, or that they suggested he
would be the first to go if the Union won. He denied having
any such list. Garvey denied following Adams to the bus stop.
Garvey denied seeing Wanek dial 911. Garvey denied seeing
any police cars in the vicinity. He testified that they last saw
Wanek as they were driving away and Wanek was getting into
his car. Garvey said that he and Adams were driving a rented
SUV and that there were no UAW insignia or stickers on it. He
testified that he had a folder, but no clipboard, and wore a
UAW shirt. Garvey testified that Wanek was on their list to
visit because he had signed an authorization card in support of
union representation but they had been unable to contact him
by phone. In response to Bally’s captive audience meetings,
the UAW was making house calls and seeking to confirm that
card signers were still supportive.
This is not an easy credibility determination. I detected no
obvious problems with the demeanor of either Wanek or
Garvey. Wanek’s affidavit stated that the UAW organizers
arrived in a van, not a pickup truck, as he testified, but he con-
vincingly asserted that the affidavit was in error, and it is a
small discrepancy in any event. It does strikes me as somewhat
odd that Wanek failed to mention (or that counsel failed to
adduce) that he had signed an authorization card, a fact that
might be expected to set a different tone for the house visit than
a “cold call” to an employee.24 I do not accuse Wanek of over-
reacting, but one detects a certain vigor to his assertions and
reactions that give pause. This is an employee who admits that
he called the UAW to complain of “harassment” because they
sent him—a card signer no less—union literature in the mail.
This shows he is exquisitely sensitive to union solicitation, and
not passive about asserting himself and his views. In assessing
his credibility it is noteworthy, at least, that I believe the mere
appearance of UAW representatives at his house would have
been upsetting,25 and therefore, raises the question of whether
his account was influenced accordingly. I also note that there is
no evidence that any other employee was subjected to such
threats. It is possible, of course, that it occurred and was not
reported, but if, as Wanek says he was told, Garvey had a list of
such people, and was out visiting them, it seems likely that
there would have been some evidence (or even rumors) about
it. But there was not. It detracts from the plausibility of the
incident if I must conclude that Garvey and Adams picked
Wanek out of hundreds of employees to make this threat to him
and only him.
Garvey’s testimony was appropriate on its face. Yet,
Garvey’s testimony is not without its problems. Actually, it’s
not Garvey’s testimony, but what is missing from the union
side of the evidentiary conflict. Given the direct conflict be-
tween Wanek and Garvey’s testimony, one does wonder why
Adams, the other party to the conversation did not testify. No
explanation was offered. Garvey did explain that he could not
find another piece of evidence—his house call report—that, if
filled out the way he claimed, would have corroborated his
account of the encounter. However, the adequacy of the search
seemed limited. He also testified that the secretary had typed in
information on the report into the computer, but that he did not
ask her or anyone else to print that information out. I hasten to
add that, as far as I know or the record shows, none of this in-
formation was subpoenaed by the Employer, so the UAW was
under no obligation to produce it, and by the same token, the
Employer was free to subpoena it. But still, Garvey raised it
and relied upon it in his testimony and this potentially corrobo-
rating piece of evidence was not introduced. That, and Adams
unexplained absence raise questions.
Ultimately, it is unnecessary to resolve this very pointed
credibility dispute. I have overruled all other objections ad-
vanced by the Employer. Assuming that this incident occurred
the way Wanek explained, I do not believe that this single inci-
dent can be the basis to overturn an election of 1100 employees
that was decided by a margin of well over 2 to 1.
“[T]he burden of proof on parties seeking to have a Board-
supervised election set aside is a heavy one. The objecting

24 Garvey’s assertion that Wanek signed an authorization card was
not, but easily could have been, rebutted by recalling Wanek. I credit
Garvey’s undisputed testimony on that score.
25 Although, entirely unobjectionable under longstanding Board
precedent, at least when unaccompanied by threatening or other coer-
cive conduct. Canton Carp’s, Inc., 127 NLRB 513 fn. 3 (1960).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD330
party must show, inter alia, that the conduct in question af-
fected employees in the voting unit and had a reasonable ten-
dency to affect the outcome of the election.” Delta Brands,
Inc., 344 NLRB 252, 253 (2005) (internal quotations omitted).
The burden of proof is particularly heavy where the margin of
victory is overwhelming. Avis Rent-A-Car System, 280 NLRB
580, 581, 582 (1986); and Millard Processing Services v.
NLRB, 2 F.3d 258, 264 (8th Cir. 1993), cert. denied 510 U.S.
1092 (1994). In evaluating whether a party’s misconduct has
“the tendency to interfere with employees’ freedom of choice,”
the Board considers: (1) the number of incidents of misconduct;
(2) the severity of the incidents and whether they were likely to
cause fear among employees in the bargaining unit; (3) the
number of employees in the bargaining unit subjected to the
misconduct; (4) the proximity of the misconduct to the election
date; (5) the degree of persistence of the misconduct in the
minds of the bargaining unit employees; (6) the extent of dis-
semination of the misconduct among bargaining unit employ-
ees; (7) the effect, if any, of misconduct by the opposing party
to cancel out the effects of the original misconduct; (8) the
closeness of the final vote; (9) the degree to which the miscon-
duct can be attributed to the party. See, e.g., Cedars-Sinai,
supra; Taylor Wharton Division, 336 NLRB 157, 158 (2001).
Here, we are considering a single incident with only meager
evidence of dissemination. The Employer’s prehearing evi-
dence in support of the objections, cited by the Regional Direc-
tor, indicates that the employee involved in this incident “states
that the following day he told at least 100 of his fellow employ-
ees about this incident.”26 The evidence does not support this.
Wanek told a lot of pit bosses. But the evidence shows that
only a few, perhaps as few as two, perhaps five voting eligible
dealers heard about the incident. One testified, and she re-
membered no details at all, just that Wanek felt he had been
threatened. Assuming it occurred, the comments and actions of
the UAW organizers constituted misconduct. But there were
no threats of violence. The questioning of how Wanek was
going to vote, was, by itself, of no consequence, although the
insistence that he must reveal his intent was clearly improper.
The expressed concern that Bally’s dealers would end up like
the Hilton dealers was (and was understood as) only the view of
union advocates that it would be in the dealer’s interest for the
Union to win the election. The initial refusal to leave the prop-
erty was quickly abandoned. The following of Wanek to the
bus stop was also, quickly abandoned. The assertion that
Wanek and others would be “the first to go” if the Union won
the election is the nub of the objection. There is, however, no
evidence that anyone else was subjected to this threat. In this
case, and given the isolated nature of the misconduct, the lim-
ited dissemination to the voters (at least one of whom testified
that she could not remember the nature of the threats made to
Wanek), the large size of the bargaining unit and the substantial

26 I have not considered this “statement” in terms of considering
credibility, as I do not know the source of the Region’s information and
neither Wanek nor anyone else was questioned about it. I mention it
only to point out that the dissemination did not live up to the billing it
received in the Region’s investigatory phase and which, presumably,
was a part of the basis for ordering a hearing.
margin of victory, “it is virtually impossible to conclude that
the election outcome has been affected.” Bon Appetit Man-
agement Co., 334 NLRB 1042, 1044 (2001) (citations omitted).
This high standard, applied where, unlike in this case, the mis-
conduct is the subject of an unfair labor practice finding, need
not be, but is met here. Assuming, arguendo, the misconduct
occurred, the objection should be overruled.27
Recommendations
On these findings of fact and conclusions and on the entire
record, I issue the following recommendations
The Employer’s objections in the above matter should be
overruled. As the tally of ballots shows that the majority of
valid votes counted have been cast for the Petitioner, it is rec-
ommended that the Board certify the Petitioner as the collec-
tive-bargaining representative of employees in the appropriate
unit.28

27 I recognize that a majority of the Board views a union’s threat to
have an employee discharged as a threat a reasonable employee could
believe, notwithstanding that employees work for the employer (not the
union), and notwithstanding that the union’s threat could not be carried
out without the complicity of an employer, in this case one which has
vigorously opposed the union. Randell Warehouse of Arizona, 347
NLRB 591, 594–594 (2006). But, at least, given these mitigating fac-
tors, the threat cannot be viewed as being equal in seriousness to an
employer’s threat of discharge, which, in isolation, in a large bargain-
ing unit, with a decisive margin of victory, is not necessarily a basis for
overturning an election. See Werthan Packaging, Inc., 345 NLRB 343
(2005); and Caron International, Inc., 246 NLRB 1120 (1979).
28 Any party may, under the provisions of Secs. 102.67 and 102.69 of
the Board’s Rules and Regulations, file exceptions to this report with
the Board in Washington, D.C., within fourteen (14) days from the
issuance of this report. Immediately upon filing of such exceptions, the
party filing the same shall serve a copy thereof on the other parties and
shall file a copy with the Regional Director. Exceptions must be re-
ceived by the Board in Washington, D.C., by November 1, 2007.