Bellagio, LLC

National Labor Relations Board - Board Decisions

Aug 20, 2015

362 NLRB No. 175 (N.L.R.B. 2015)

362 NLRB No. 175
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Bellagio, LLC and Gabor Garner and Najia Zaidi.
Cases 28–CA–106634 and 28–CA–107374
August 20, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND MCFERRAN
On March 20, 2014, Administrative Law Judge Robert
A. Ringler issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief. The General Counsel filed cross-
exceptions and a supporting brief, the Respondent filed
an answering brief, and the General Counsel a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
For the reasons stated by the judge, we find that the
Respondent violated Section 8(a)(1) of the Act by engag-
ing in surveillance of employees’ union or other protect-
ed concerted activity and by Front Services Supervisor
Brian Wiedmeyer’s instruction to employee Gabor Gar-
ner that Garner not talk about his suspension with other
employees.3 We also agree with the judge that the Re-
spondent did not unlawfully retaliate against employee
Najia Zaidi because of her protected concerted activity.
Finally, as more fully explained below, we agree with the
judge that the Respondent violated Section 8(a)(1) by
denying Garner’s request for union representation during

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall also substitute a new notice to conform to the Board’s
standard remedial language and in accordance with Durham School
Services, 360 NLRB No. 85 (2014).
3 Although we agree that Wiedmeyer’s instruction violates Sec.
8(a)(1), we do not find, as did the judge, that this instruction constituted
the promulgation of an oral rule. Rather, we find that Wiedmeyer’
engaged in coercive conduct to compel Garner to cease speaking to
coworkers about his discipline. See Food Services of America, 360
NLRB No. 123 slip op. at 5 fn. 11 (2014). We will modify the judge’s
order to reflect this rationale.
a disciplinary interview and then suspending him be-
cause he refused to participate in an investigatory inter-
view without union representation.
Facts
The Respondent, Bellagio, LLC, operates a casino in
Las Vegas, Nevada. Garner, a long-term employee and
bargaining unit member worked as a bellman.4 His du-
ties included assisting guests with luggage and with hotel
check-in and check-out. On May 12, 2013,5 a guest filed
a complaint that Garner had acted inappropriately in an
attempt to coax a tip and then reacted rudely when the
guest withheld the tip. Late in the day on May 13,
Wiedmeyer, accompanied by Front Services Supervisor
Max Sanchez, called Garner to Wiedmeyer’s office to
question Garner about the incident.
At the beginning of the meeting, Garner asked
Wiedmeyer if he could be disciplined. When Wiedmeyer
responded that discipline was a possibility, Garner asked
for a Weingarten representative.6 Because Wiedmeyer
did not know the whereabouts of a steward, Garner sug-
gested that Wiedmeyer contact employee relations for a
roster of stewards. Wiedmeyer then directed Garner to
fill out and sign a statement describing his interaction
with the customer. Garner declined to do so without a
steward and stated that he would return to work.7
Wiedmeyer and Sanchez left the room to telephone em-

4 Local Joint Executive Board of Las Vegas, Culinary Workers Un-
ion, Local 226, and Bartenders Union, Local 156, affiliated with
UNITE HERE represents several classifications of the Respondent’s
employees, including bellmen, under collective-bargaining agreements.
5 All dates are 2013, unless otherwise indicated.
6 NLRB v. J. Weingarten, 420 U.S. 251 (1975).
7 As set forth in Wiedmeyer’s written account of the meeting—and
corroborated by the written accounts of Sanchez and Garner—
Wiedmeyer suspended Garner pending investigation “because [Garner]
was going back to work without filling out a statement. I . . . inform[ed]
. . . [him] that I could not locate his representation and he would have
to. He again refused . . . to fill out a statement . . . I placed him on SPI
so he could not return to work until the investigation was completed.
Sanchez’ written statement of the May 13 meeting stated that once
Garner asked for a representative, “Wiedmeyer explained to [Garner]
that it was up to him to find a shop steward that that we could continue
with the request of a statement from him. He also told [Garner] that he
would have to SPI him if he wasn’t willing to find a shop steward and
fill out a statement.”
Finally, Garner, whose testimony the judge expressly credited, simi-
larly wrote on the SPI form on May 14 that “Was asked to fill out a
statement. I asked if this was for discipline and he said it could be. I
asked for representative he said no. Asked if I was refusing to fill out a
statement and I said no I would like a representative he said if I don’t
fill it out I would be SPI. I asked for my Weingarten rights.” Garner’s
testimony corroborates his written statement; while Garner testified that
Wiedmeyer ceased questioning him about the incident once Garner
requested a steward, Wiedmeyer continued to press Garner to complete
a written statement even after Garner stated repeatedly that he would
not do so without a steward.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ployee relations for assistance, and returned with a Sus-
pension Pending Investigation (SPI) form. Wiedmeyer
and Garner signed the SPI form and Wiedmeyer then
instructed Garner to immediately leave the building, and
followed him out.
The SPI issued to Garner, listed the date of the incident
under investigation as May 13, and specified, in relevant
part:
You are being placed on Suspension Pending Investi-
gation effective 05/13/13. This is not a disciplinary ac-
tion; it is a process that Bellagio utilizes to remove you
from the work place in order to investigate a serious
situation or policy infraction in which you may have
been involved. It is also utilized if you have reached
the final step in the progressive disciplinary process.
***
Upon completion of the investigation . . ., one of the
following . . . will occur:
1. You will be returned to work without discipli-
nary action . . . ; or
2. You will be returned to work with disciplinary
action if warranted . . . ; or
3. You will be separated from the company . . .
[Emphasis in original.]8
The next day, Garner met with Employee Relations
Manager Susan Moore and Front Services Director
Charles Berry. Union Shop Steward Monica Smith was
also present. At this meeting, Garner completed a state-
ment describing his version of the incident with the guest
and received a verbal warning. He then returned to
work. Ultimately, Garner experienced no loss of pay as a
result of his suspension.
Discussion
Under Weingarten, supra, an employee has the right,
upon request, to have a union representative in an inves-
tigatory interview that he or she “reasonably fears may
result in his discipline.”9 Once a union representative is
requested, an employer has three lawful options: “(1)
grant the request, (2) discontinue the interview, or (3)
offer the employee the choice of meeting without a rep-
resentative or of no meeting at all.” Consolidated
Freightways Corp., 264 NLRB 541, 542 (1982).

8 Wiedmeyer’s written statement also characterized Garner’s de-
meanor in the May 13 meeting as argumentative, which the judge ex-
pressly discredited. Thus, our dissenting colleague’s reliance on
Wiedmeyer’s characterization of Garner’s demeanor at the meeting is
misplaced.
9 420 U.S. at 256.
Here, it is uncontroverted that the May 13 meeting be-
tween Garner, Wiedmeyer, and Sanchez constituted an
investigatory interview within the meaning of
Weingarten. Garner, at the beginning of the interview,
asked Wiedmeyer if he could be disciplined and
Wiedmeyer responded that it was a possibility. Garner
then requested a steward.
Once Garner invoked his Weingarten rights, the Re-
spondent did not follow one of the lawful avenues avail-
able to it. It did not grant Garner’s request for a steward
because the parties could not locate one. Nor did the
Respondent offer Garner the choice of continuing with-
out a representative or having no meeting at all. And,
contrary to our dissenting colleague, the Respondent did
not merely discontinue the interview. Instead, once Gar-
ner renewed his request for a steward, Wiedmeyer con-
tinued to press Garner to complete a statement. When
Garner refused to do so without a steward, and stated his
intention to return to work, Wiedmeyer suspended Gar-
ner and ordered him to leave the facility before his
scheduled shift ended.10
We agree with the judge that Garner’s suspension was
not based on the May 12 guest complaint but rather, as
evidenced by the contemporaneous written statements of
all individuals who attended the May 13 meeting, result-
ed from Garner’s refusal to complete a statement in a
disciplinary interview without his requested representa-
tive.11
Further, contrary to the dissent, we agree with the
judge that Garner suffered an “adverse employment ac-
tion” within the meaning of Wright Line.12 Under Wright
Line, the General Counsel must show by a preponder-
ance of the evidence that, in response to protected activi-
ty, “the individual’s prospects for employment or contin-
ued employment have been diminished or that some le-
gally cognizable term or condition of employment has
changed for the worse.” Northeast Iowa Telephone Co.,

10 Our dissenting colleague cites and relies on Wiedmeyer’s testimo-
ny that he ceased questioning Garner once Garner requested a steward.
However, Garner’s credited testimony and the contemporaneous writ-
ten statements by Garner, Sanchez, and Wiedmeyer himself, discussed
supra, all indicate that Wiedmeyer continued to request that Garner
complete the statement or face suspension. Clearly, the Respondent’s
request that Garner complete a statement relating to an incident that
could lead to discipline was part of its investigatory interview of Gar-
ner.
11 The judge necessarily credited those documents and Garner’s tes-
timony when finding that Garner’s request for a steward triggered the
SPI. Indeed, the SPI itself supports this finding as it lists May 13—the
date of the investigatory meeting—as the incident under investigation,
not the May 12 guest complaint.
12 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
3
BELLAGIO, LLC
346 NLRB 465, 476 (2006). The General Counsel satis-
fied that burden here. The Respondent suspended Garner
pending investigation in direct response to his protected
conduct. Garner effectively was removed from the work-
place; indeed Wiedmeyer personally followed him out of
the building to ensure his departure.13 And, at least while
the Respondent’s investigation was pending, he faced the
prospect of further disciplinary action, including dis-
charge (“separation from the company”), according to
the terms of the SPI itself. That Garner ultimately suf-
fered no loss of wages as a result of the SPI and that no
other discipline was imposed, does not negate the fact of
the suspension (removal from the workplace) or its
chilling effect on the exercise of the Weingarten right,
given the potential for discipline or discharge.14 Under
these circumstances, there is little doubt that Garner’s
suspension constituted an adverse employment action.
In sum, we find that the Respondent summoned Garner
to an investigatory interview where it pressed him to
complete a statement even after he requested union rep-
resentation. When Garner refused to provide the state-
ment without his union representative, he was suspended.

13 Our colleague asserts that, as a matter of policy, the Board should
allow employers to remove employees from the workplace where, “the
employer has the impression that the employee’s state of mind is such
that an immediate return to the workforce would likely result in disrup-
tion of the employer’s business, damage to customer relations, or fur-
ther incidents that might themselves require discipline.” First, we note
that the predicate on which our colleague relies was expressly missing
here. The judge credited Garner’s testimony that he did not become
agitated or angry during the interview. Second, our colleague’s ap-
proach would fail to properly account for situations, like here, where an
employer removes an employee from the workplace precisely because
the employee engaged in protected activity. Such removals, even if
they do not ultimately result in written disciplinary action or loss of
pay, serve to reinforce to employees the employer’s ability to quell
protected activity at its source.
Furthermore, we disagree with our colleague that our decision here
creates a situation where an employee’s invocation of rights under
Weingarten “automatically shuts down an employer’s entire ability to
investigate a workplace issue.” As set forth above, the Supreme Court
delineated lawful avenues that an employer can follow in response to
an employee’s request for representation. The Respondent here fol-
lowed none of these courses of action and suspended Garner solely
because he requested representation.
14 Indeed, the SPI by its own terms stated it is a “process . . . to re-
move you from the work place in order to investigate a serious situation
or policy infraction.” It is clear that the prospect of discipline for en-
gaging in Sec. 7 activity has a coercive chilling effect, whether or not
discipline is imposed. See, e.g., Murtis Taylor Human Services Sys-
tems, 360 NLRB No. 66, slip op. at 1 fn. 3, 15 (2014) (finding employ-
er’s disciplinary investigation of zealous Weingarten representative
unlawful, citing chilling effect on representation, despite absence of
actual discipline); Banner Estrella Medical Center, 362 NLRB No.
137, slip op. at 5 (2015) (discussing potential chilling effect of employ-
er’s disciplinary-confidentiality requirement that included possibility of
discipline).
We therefore affirm the judge’s finding that, by these
actions, the Respondent violated Section 8(a)(1) of the
Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Bel-
lagio, LLC, Las Vegas, Nevada, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order as modified.
1. Replace paragraph 1(d) with the following.
“(d) Instructing employees that they cannot discuss
disciplinary matters with other employees.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. August 20, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER JOHNSON, dissenting in part.
The facts of this case are straightforward. A customer
at the luxury hotel Bellagio complained that bell person
Gabor Garner had treated him rudely. Garner’s supervi-
sor, Front Services Supervisor Brian Wiedmeyer, asked
Garner for a statement describing the incident from Gar-
ner’s perspective. Garner declined to write a statement
and requested a union representative. Wiedmeyer asked
Garner no further questions, but instead told Garner that
he was free to bring in a union representative.
Wiedmeyer also attempted to find a representative for
Garner by calling the Respondent’s employee relations
department. When no representative could be found,
Wiedmeyer ended the interview and issued to Garner a
Suspension Pending Investigation (SPI). The entire in-
terview lasted no more than 20 minutes. The next day, in
the presence of a union representative, Garner completed
a statement about the customer complaint. The Re-
spondent gave Garner a verbal warning for his conduct
towards the customer and reimbursed him for all wages
lost during the SPI. My colleagues find, on these facts,
that the Respondent violated Section 8(a)(1) of the Act
by refusing to allow Garner to be represented by a union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
representative and by suspending him because of his re-
fusal to participate in an investigatory interview without
union representation. I respectfully dissent.1
It is well established under Weingarten2 that when an
employee who is represented by a union requests the
presence of a union representative at an investigatory
interview, which the employee reasonably believes may
result in discipline, the employer must either grant the
request, discontinue the interview, or offer the employee
the choice of proceeding without union representation, or
foregoing any benefit that might have been derived from
the interview.3 Here, the judge concluded that the Re-
spondent violated Section 8(a)(1) by refusing to allow
Garner to be represented by a union representative. But
even construing the Respondent’s unsuccessful attempt
to procure a representative as a refusal to allow one to be
present, an employer does not act unlawfully by refusing
to allow union representation, if the employer does not
attempt to proceed with the interview after the employee
requests representation.4
My colleagues find that rather than discontinuing the
interview after Garner requested a union representative,
Wiedmeyer continued to press Garner to complete a
statement after Garner’s request. But the judge did not
find that Wiedmeyer sought to continue the interview,
and both Wiedmeyer and Garner testified that
Wiedmeyer asked no further questions after Garner’s
request. My colleagues rely on contemporaneous written
accounts by Wiedmeyer, Max Sanchez, and Garner to
find that Wiedmeyer continued to press Garner for a
statement after Garner requested representation. But
those accounts establish no such thing. Wiedmeyer’s
statement says:
I returned to inform [Garner] I could not locate his rep-
resentation [sic] and he would have to. He again re-
fused and refused to fill out a statement regarding the
issue. I placed him on SPI so he could not return to
work until the investigation had been completed. I ex-

1 I join my colleagues in finding that the Respondent violated Sec.
8(a)(1) when Wiedmeyer instructed Garner not to discuss the investiga-
tion with other employees, although, as discussed below, I do not agree
with my colleagues’ characterization of the SPI as discipline. I also
join my colleagues in affirming the judge’s other rulings, findings, and
conclusions.
2 NLRB v. J. Weingarten, 420 U.S. 251 (1975).
3 E.g., Washoe Medical Center, 348 NLRB 361, 361 and fn. 5
(2006) (citing Consolidated Freightways Corp., 264 NLRB 541, 542
(1982)).
4 Weingarten, 420 U.S. at 258 (“The employer has no obligation to
justify his refusal to allow union representation, and despite refusal, the
employer is free to carry on his inquiry without interviewing the em-
ployee.”).
plained the three possible outcomes of SPI, he signed,
had no questions and left.
As my colleagues observe, Sanchez’ and Garner’s
statements establish that Wiedmeyer informed Garner
that Garner would be suspended pending investigation if
he continued to refuse either to locate a representative for
himself or to fill out a statement, and that Wiedmeyer
thereafter did, in fact, suspend Garner pending investiga-
tion. These consistent contemporaneous accounts estab-
lish that Garner refused, throughout the interview, either
to locate a representative for himself or to fill out a
statement; they do not establish that Wiedmeyer sought
to continue the interview after Garner’s request. Accord-
ingly, I cannot conclude that the General Counsel has
carried his burden of proof on this issue, especially in the
light of the unambiguous testimony to the contrary from
both Wiedmeyer and Garner. Because Wiedmeyer dis-
continued the interview when Garner requested represen-
tation, the Respondent did not violate Garner’s
Weingarten right.
Nor can I join my colleagues in finding that the Re-
spondent violated Section 8(a)(1) by issuing the SPI.
Under Wright Line5 the General Counsel must make an
initial showing that an employee’s protected conduct was
a motivating factor in an employer’s decision to take an
adverse action against the employee.6 Here, the General
Counsel failed to make the threshold showing that the
Respondent took an adverse action against Garner.7 My
colleagues adopt the judge’s summary finding that the
SPI was disciplinary because it states that the investiga-
tion of which it is a part may result in discipline. But
they fail to acknowledge that the SPI also states that one
outcome of the investigation may be a return to work
without disciplinary action and with compensation for
any missed worktime. This is consistent with the title of
the SPI; it is a suspension “pending investigation,” not a
suspension levied to make some disciplinary point. Spe-
cifically here, the SPI expressly states, in its first para-
graph, that it is not a disciplinary action, but rather a part
of the Respondent’s investigatory process. My col-
leagues do not acknowledge record evidence that the
Respondent neither considers SPIs disciplinary nor re-
tains any record of them in employee personnel files. In
this regard, Wiedmeyer’s own contemporaneous account
of the purpose of the SPI was “so [Garner] could not

5 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
6 See, e.g., Mesker Door, Inc., 357 NLRB No. 59, slip op. at 2
(2011).
7 The General Counsel does not allege that the verbal warning re-
garding Garner’s conduct towards the customer was unlawful.
5
BELLAGIO, LLC
return to work until the investigation had been complet-
ed.” (Emphasis added.) Thus, the SPI served merely as a
functional pause in the investigation so that a union rep-
resentative could be obtained and a statement from Gar-
ner could then be lawfully taken, not as a sign of the Re-
spondent’s displeasure. That neither Garner nor the Re-
spondent knew what the outcome of the investigation
would be at the time the SPI was issued does not mean
that the SPI constitutes an adverse employment action:
an investigation is not itself discipline, whether or not
discipline ultimately ensues.8 Finally, the Respondent
levied no monetary penalty or detriment against Garner;
it paid him for the work he missed because of the SPI.
On this record, it is clear that the SPI was not discipli-
nary, and Garner suffered no adverse consequence be-
cause of its issuance.9 Therefore, the General Counsel
has not made the initial showing required to find a viola-
tion under Wright Line.
As a policy matter, the Board would better fulfill our
mission of promoting industrial peace by permitting an
employer in a situation like this—where an employee has
been accused of a serious infraction and circumstances
beyond the control of the employer prevent an immediate
investigatory interview—to send the employee home
pending the prompt completion of the investigation. For
example, the immediate return to the workplace of an
angry employee could result in disruption of the employ-
er’s business, damage to customer relations, or further
incidents that might themselves require discipline. An
employer should be allowed to make that judgment call
as to an employee’s state of mind.10 I regret that my col-

8 The terms of the SPI itself, read in context, could not be clearer in
this regard: “This is not a disciplinary action; it is a process that Bel-
lagio utilizes to remove you from the work place in order to investigate
a serious situation or policy infraction in which you may have been
involved.” (Emphasis added.) This language clearly indicates that the
SPI does not prejudge the result of the investigation of which it is a
component.
9 I vehemently disagree with my colleagues in their finding that ei-
ther a mere instruction to an employee to leave the workplace or the
“prospect of discipline” will have “a coercive chilling effect, whether
not discipline is imposed.” This is simply circular logic that would
make any continuation of a typical investigation—which frequently
involves an instruction to the subject employee to go home and uni-
formly involves at least a prospect of discipline—an automatic adverse
action. Weingarten cannot be interpreted so that the invocation of the
right automatically shuts down an employer’s entire ability to investi-
gate a workplace issue. Weingarten protects the employee from invol-
untary personal involvement in an investigatory interview that could
result in discipline; the Supreme Court never intended that it be an
overall paralytic to investigations.
10 In this particular case, as my colleagues point out, the judge spe-
cifically credited employee Garner’s testimony that he was composed
and able to work. But contemporaneous written accounts, which the
judge did not specifically discredit, show that management had at least
leagues’ failure to recognize commonsense boundaries
for Weingarten obligations here have transformed them
into an unworkable stricture for employers that are faced
with the sudden need to investigate a workplace incident,
a scenario which happens all too frequently in the mod-
ern world. This unfortunate outcome makes Weingarten
a stumbling block to industrial peace, rather than its in-
tended guarantor. I respectfully dissent.
Dated, Washington, D.C. August 20, 2015
______________________________________
Harry I. Johnson, III, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT deny your request to be represented by a
union representative of your choice, while completing
witness statement forms or participating in investigatory
interviews, which you have reasonable cause to believe
will result in discipline.
WE WILL NOT issue you a Suspension Pending Investi-
gation (SPI) or otherwise discipline you for refusing to
complete a witness statement form or participate in a
disciplinary interview, which you have reasonable cause
to believe will result in discipline, where the SPI or other
discipline was because of your refusal to complete the
witness statement form or participate in the interview
without union representation.

a reasonable basis for believing differently: for example, Garner, dur-
ing the interview, “turned very argumentative,” “rudely had asked the
same question several times and in a high tone of voice,” and then
“became even more agitated.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
WE WILL NOT engage in surveillance of your union or
other protected concerted activities.
WE WILL NOT instruct employees that they cannot dis-
cuss disciplinary matters with other employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful sus-
pension pending investigation that we issued to Gabor
Garner, and WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that the sus-
pension pending investigation will not be used against
him in any way.
BELLAGIO, LLC
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-106634 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Nathan Higley, Larry A. Smith, and Stephen Wamser, Esqs., for
the General Counsel.
Paul Trimmer (Jackson Lewis, LLP) and Nathan Lloyd (MGM
Resorts International), Esqs., for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. Between
January 6 and 8, 2014, these cases were heard in Las Vegas,
Nevada. The complaint alleged that the Bellagio, LLC (the
Bellagio or Respondent) violated Section 8(a)(3) and (1) of the
National Labor Relations Act (the Act) by, inter alia: engaging
in, and creating the impression of, surveillance; retaliating
against Najia Zaidi because of her protected concerted activi-
ties; denying Gabor Garner’s request for union representation
during a disciplinary interview, and then suspending him be-
cause he made this request; and orally promulgating a rule pro-
hibiting disciplinary discussions.
On the entire record, including my observation of the de-
meanor of the witnesses, and after thoroughly considering the
parties’ briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Bellagio has been a limited liability
company, with an office and place of business in Las Vegas,
Nevada, where it operates a luxury hotel and casino.
Annually, its gross revenues exceed $500,000, and it pur-
chases goods valued at more than $50,000 directly from points
located outside of the State of Nevada. Based upon the forego-
ing, it admits, and I find, that it is an employer engaged in
commerce under Section 2(2), (6), and (7) of the Act. It further
admits, and I find, that the Local Joint Executive Board of Las
Vegas, Culinary Workers Union, Local 226, and Bartenders
Union, Local 156, affiliated with UNITE HERE (the Union) is
a labor organization under Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Bellagio, an elite Five Diamond hotel and casino, is lo-
cated on the Las Vegas strip.1 The Union represents its food
servers, waiters, bartenders, bellmen, dispatchers, valets, and
other employees (the unit). (Jt. Exh. 1.) The parties enjoy a
stable, long-term collective-bargaining relationship, which has
been memorialized in multiple consecutive contracts.
A. Garner Incident
Gabor Garner, a unit bell man, is generally the first and last
employee to interact with his assigned guests. He is, as a result,
expected to foster strong first and last impressions, which are
commensurate with the Bellagio’s Five Diamond rating.
1. May 12, 20132
A guest checked in at the bell desk; he was greeted by Gar-
ner, who handed him a luggage claim check. The guest alleged
that, after tendering the claim check, Garner rudely hovered
over him, in an effort to coax a gratuity. The guest, who was
offended by his lack of subtlety, responded by withholding a
tip, which allegedly caused Garner to yell, “appreciate it,” in
close proximity. The guest then filed a formal complaint with
management. (GC Exh. 2.)
2. May 13 disciplinary interview
Front Services Supervisor Brian Wiedmeyer,3 summoned
Garner to an investigatory meeting concerning the complaint.
Max Sanchez, another front services supervisor, served as a
witness. This meeting occurred roughly 15 minutes before the
end of Garner’s 7 a.m. to 3 p.m. shift. (See GC Exh. 4.) When
the meeting began, Garner asked whether he might be disci-
plined; when Wiedmeyer responded affirmatively, he invoked
his “Weingarten rights.”

1 Less than half percent of lodgings are awarded Five Diamond sta-
tus by the American Automobile Association.
2 All dates herein are in 2013, unless otherwise stated.
3 He supervises the valets, dispatchers, and bellmen (i.e., roughly
235 workers).
7
BELLAGIO, LLC
a. Bellagio’s position
Wiedmeyer testified that, because he did not possess a Union
steward list and Garner failed to identify a specific representa-
tive, he asked employee relations for help. He stated that they,
unfortunately, were also unable to locate a steward.4 He
averred that Garner replied that, if he could not find a steward,
he would return to work. He contended, however, that he was
reluctant to permit him to return to work because he had be-
come agitated during their meeting, and seemed unable to con-
tinue serving guests.5 He related that, consequently, he placed
him on a suspension pending investigation (SPI). His written
statement about the incident reported that:
I informed [Employee Relations] . . . that I would have to SPI
. . . [Garner] because he stated that he was going back to work
without filling out a statement. I . . . inform[ed] . . . [him] that
I could not locate his representation and he would have to. He
again refused . . . to fill out a statement. . . . I placed him on
SPI so he could not return to work until the investigation had
been completed.
(GC Exh. 3.) Although this statement also described Garner as
“argumentative,” it conspicuously failed to cite his agitation as
necessitating the SPI. (See also GC Exh. 4 (Sanchez’ state-
ment).) His account, instead, linked Garner’s refusal to “fill out
a statement” to the SPI. He confirmed that he did not ask Gar-
ner any other questions, once he invoked his Weingarten rights.
He said that the meeting ended at 2:50 p.m., i.e., 10 minutes
before Garner’s shift ended.
Sanchez recalled Wiedmeyer telling Garner that:
[T]he meeting was over because he wanted representation and
[none] . . . could be found [and] . . . we would have to SPI
him.
(Tr. 97.)
Front Services Director Charles Berry indicated that Garner
is somewhat emotional and periodically loses his composure.
He agreed, however, that he could not recall an example of
another employee being issued an SPI, under similar circum-
stances. (Tr. 457–58.)
b. Garner’s contentions
Garner recounted Wiedmeyer showing him the complaint.
He recalled telling him to ask employee relations for a steward
list, and suggesting that such a list might also be posted in Ber-
ry’s office. He said that Wiedmeyer placed a statement in front
of him and told him to fill it out, which he declined to do with-
out a steward. He added that Wiedmeyer told him that he
would simply SPI him and figure it out later. He said that
Sanchez and Wiedmeyer eventually left the room to call em-
ployee relations and then issued the SPI upon returning. He

4 Susan Moore, employee relations manager, testified that she does
not possess a current union shop steward list, although she generally
knows who serves in this role. She added, however, that her colleagues
do not share her awareness. She related that she was unavailable to
speak to Wiedmeyer on May 13.
5 Specifically, he testified that “he was beyond what I have seen him
on an agitation scale.” (Tr. 50–51.)
denied becoming upset, or being emotionally unable to return
to serving guests.
c. SPI
The SPI provided:
You are being placed on Suspension Pending Investigation ef-
fective 05/13/13. This is not a disciplinary action; it is a pro-
cess that Bellagio utilizes to remove you from the workplace
in order to investigate a serious situation or policy infrac-
tion in which you may have been involved. It is also utilized
if you have reached the final step in the progressive disci-
plinary process. . . .
[Y]ou are not permitted on property except to attend your
meeting with Employee Relations. . . . [W]e ask that you treat
this as a confidential matter. . . .
Upon the completion of the investigation . . . , one of the fol-
lowing . . . will occur:
1. You will be returned to work without
disciplinary action . . . ; or
2. You will be returned to work with dis-
ciplinary action if warranted . . . ; or
3. You will be separated from the com-
pany. . . .
(GC Exh. 25) (emphasis added).
Moore described an SPI as a “holding pattern,” which re-
quires a closed investigation before an employee can be re-
turned to work. (Tr. 631.) She stated that SPIs are generally
not included in personnel files. She denied retaining records of
prior SPIs.6
d. Credibility resolution
Because Wiedmeyer testified that Garner’s irate state
prompted the SPI, and Garner insisted that he was composed
and able to work, I must make a credibility finding. I credit
Garner. First, if he were truly that irate, he would have re-
ceived independent discipline, which did not occur.7 Second,
Wiedmeyer’s and Sanchez’ written statements, which were
prepared almost contemporaneously, conspicuously fail to men-
tion that his agitation caused the SPI. Moreover, Wiedmeyer’s
written statement and Sanchez’ testimony expressly provided
that his Weingarten request and their connected inability to
continue the meeting caused the SPI. (See GC Exh. 3; Tr. 97.)
Finally, Garner possessed a credible demeanor.
3. Events immediately following the
investigatory meeting
Wiedmeyer indicated that, after issuing the SPI, he told Gar-
ner to depart. He said that, shortly thereafter, he observed him

6 Although Moore said that the Bellagio issues about 5 percent of its
SPIs to employees who are “agitated in a meeting with a supervisor”
(Tr. 646), she failed to supply corroborating documentation. Given this
omission, as well as her inability to cite a single employee as an exam-
ple, her testimony on this matter has been afforded little, if any, weight.
7 As stated, he solely received a verbal warning for the guest
complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
lingering in the break area recounting his tale to six coworkers.
He said that, when he asked him to leave, Garner queried
whether he was now prohibited from talking to his coworkers.
He added that, as Garner left, he similarly asked whether he
was also precluded from departing with his coworkers. (See
also GC Exhs. 3–4.)
Garner recounted the following exchange in the bellmen
break area:
We got out of the office . . . I clocked out. . . . [A]s I was
walking through dispatch, . . . . Russ Meyer [asks] . . .,
“What’s wrong, Bryan?” [I] . . . said, “I just got SPI[e]d . . .
[b]ecause I asked for my steward.” At that point, while I was
talking, . . . Wiedmeyer comes around the corner . . . [and] in
a loud voice . . . says, “You can’t . . . discuss . . . that matter in
here”. . . .
I said, “You can’t tell me who to talk to,” . . . As I walked out
of the door to dispatch and . . . down the hall to leave the ho-
tel, my friend Jason Weinman, . . . a bellman . . . , was waiting
for me. . . .
[W]hen I looked at Jason, . . . I turned around and . . .
Wiedmeyer was standing there . . . glaring. . . . And I said,
“Are you going to tell me who I can walk out [with] . . . ?”
And he . . . said, “Just move along, gentlemen.”
(Tr. 121–23) (grammar as in original).
Russ Meyer, a bellman, recounted Wiedmeyer abruptly ap-
pearing in the break area, banning Garner from talking about
the SPI, and ordering him to depart. He stated that he saw
Wiedmeyer following Garner and Weinman out of the Bellagio.
Weinman essentially corroborated Meyer’s and Garner’s ac-
counts.
I credit Garner’s account. He was a highly credible witness,
whose testimony was corroborated by Meyer and Weinman,
who were also credible. Wiedmeyer also conceded the vast
majority of Garner’s testimony, including his directive to stop
discussing the SPI.
4. May 14 meeting
Garner met with Berry, Moore, and Union Shop Steward
Monica Smith.8 He completed a statement concerning the
complaint and received a verbal warning for the tip incident.
(See GC Exh. 22; R. Exhs. 14, 15, 17.) He was reimbursed for
all wages lost during the SPI.
B. Zaidi Allegations
The Bellagio adheres to payment card industry compliance
standards (PCI). (R. Exh. 11.) PCI holds merchants liable for
credit card data breaches,9 and requires the maintenance of a
secure computer network.
Zaidi, a unit dispatcher, handles tour reservations, wheel-
chair rentals and other matters. She often receives guest credit
card information that must be handled in accordance with PCI.

8 Smith’s attendance was arranged by Moore.
9 Such data includes account numbers, service codes, names, ad-
dresses, phone numbers, and signatures.
1. July 31, 2012 emails
Zaidi sent this email to a client, who was representing a large
tour group:
My boss . . . has assigned . . . this reservation [to me]. . . . I
understand . . . [your clients] are interested in the Wind Danc-
er package. . . . I will look forward to receiving the infor-
mation . . . to my email address Najia7604@yahoo.com. . . .
[P]lease make sure to include the following:
 full name of one of the passengers
 date of tour
 number of passengers . . .
 credit card to hold the tour. . . .
(GC Exh. 6) (emphasis added). This email violated PCI, inas-
much as it asked a client to send credit card data to an unpro-
tected, personal, email address. (R. Exh. 11.) Zaidi admitted
that the email violated PCI, and conceded that she failed to
contemporaneously advise her superiors about her breach.
Within minutes, Zaidi, sent out this remedial email:
I accidentally gave you the wrong email address
(najia7604@yahoo.com). The correct address is
nzaidi@bellagioresort.com.
(GC Exh. 7.) Her PCI breach then lay dormant for several
months; in the interim, she became enmeshed in a protest over
a newly constructed valet break area.
2. December 2012 breakroom protest
On December 3, 2012, Zaidi observed that an exclusive valet
break area had been constructed.10 The exclusion of dispatch-
ers and bellmen from this new break area was seen as an affront
by Zaidi, which prompted her to distribute a petition seeking
their inclusion.11 (GC Exh. 5.) Later that day, she told
Wiedmeyer about her disappointment; he referred her to Erden
Kendigelen, then executive director of hotel operations.12 She
recounted also meeting with Kendigelen that day, and relaying
the group’s concerns.13 She recollected his frustration, as he
chided her that “we’re always trying to do something nice and
someone always gets in the way.” She said that his mind re-
mained unchanged, and that, when she told him about her peti-
tion, he hostilely replied that “he did not care if she had 100
signatures.”
3. January 31—anonymous letter and meeting
Kendigelen testified that, upon arriving that morning, he ob-
served that the following anonymous letter had been slipped
under his office door:
Najia Zaidi from the bell desk is not being PCI compliant.
Having personal information sent to her personal email is
against company policy. . . .

10 Valets received keys for the private area, which had couches, flat
screen televisions, and other amenities.
11 She eventually collected 24 signatures on the petition.
12 He oversaw day-to-day hotel operations; he is currently a hotel
manager for the Ritz Carlton Hotels.
13 Berry stated that, on January 20, Zaidi also complained to him,
and that he relayed her ongoing grievance to Kendigelen.
9
BELLAGIO, LLC
(GC Exh. 9.) The letter attached the July 31, 2012 email that
contained her PCI violation, but, oddly, omitted the corrective
email that was sent minutes later. To date, it remains a full-
blown mystery concerning who placed these documents at
Kendigelen’s doorstep.
Kendigelen testified that he summoned Zaidi to his office,
and presented the letter and incriminating email. He recollect-
ed her admitting a PCI violation, but insisting that she sent a
prompt remedial email, which he lacked at that point. He add-
ed that she then oddly stated that she was uncomfortable speak-
ing with him, which prompted him to close the meeting and
forward the matter to employee relations. He related that he
took no further role in the investigation.
In response to the suggestion that he surreptitiously drafted
the unidentified letter, broke into Zaidi’s email account to find
the incriminating email and created a hoax about the anony-
mous package, Kendigelen very credibly denied such wrongdo-
ing or retaliation.14 He added that, while his office is locked
when he is not there, the suite area that houses his office is
accessible to the cleaning crew and employees who use the
suite’s shared printer. He, as a result, contended that anyone
could have slipped the anonymous letter under his office door.
Zaidi testified that Kendigelen told her that her actions were
unacceptable, and referred her case to employee relations. She
stated that she firmly believed that he orchestrated the entire
investigation, in order to retaliate against her for complaining
about the valet break area. She could not, however, explain
why he waited 2 months to exact his revenge, or how he might
have accessed her email account, which is username and pass-
word protected.15
4. Berry’s assistance
Berry testified that he told Wiedmeyer to help Zaidi access
the “vault,” which is where the system’s old emails are stored;
he did this in order to help her find the exculpatory email that
would aid her defense.16 Wiedmeyer helped her and she even-
tually found the email.17
5. Security investigation and followup
a. Investigation
Bethany Young, investigations manager, stated that she in-
vestigates fraud and misconduct. She added that she investi-
gated the PCI compliance matter, in order to assess whether

14 His credibility was greatly buttressed by the General Counsel’s
conspicuous, and unexplained, failure to call a witness, who was famil-
iar with the Bellagio’s information technology system (e.g., its chief
information officer or designee), who could show that: Kendigelen
accessed her email account; or that her account was accessed, when she
was not there. Kendigelen was also a very believable witness, who was
consistent on direct and cross-examination, and thoughtful in his re-
sponses.
15 She stated that she changes her password every 3 months, and as-
sumed that her supervisor could freely access her email account.
16 He credibly denied informing Zaidi that Kendigelen had accessed
her email system or engineered her investigation.
17 The General Counsel similarly failed to show that Kendigelen held
the ability to access Zaidi’s email via the “vault” without her consent,
or that someone else might have accessed her “vault” account.
Zaidi’s violation was only an aberration or ongoing miscon-
duct. She was granted approval by her supervisor and the Gen-
eral Counsel to review Zaidi’s email account. She said that:
[She] look[ed] . . . for anything that did not pertain to business
. . . . [She] looked at anything . . . forwarded to her external
email, as well as anything . . . of a nature that [demonstrated] .
. . a disagreement between her and another employee. . . .
(Tr. 485.) She confirmed that she found Zaidi’s exculpatory
email, and concluded that her infraction was isolated and disci-
pline was unwarranted.
b. February 3 meeting
Zaidi testified that she met with security employees Scott
Reekie and Bernard Davis, and Weingarten Representative
Scott Lykens. She stated that she completed a statement, and
was told weeks later that the investigation had closed and she
would not be disciplined.
III. ANALYSIS
A. Garner and Zaidi Retaliations
1. Legal precedent
Section 7 affords employees these rights:
[T]he right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutu-
al aid or protection. . . .
29 U.S.C. § 157. Under Section 8(a)(l), it is unlawful for an
employer to interfere with these rights. This case involves the
Bellagio’s alleged interference with: Garner’s Section 7 right to
seek union assistance during a disciplinary interview without
retaliation; and Zaidi’s Section 7 right to lodge a collective
protest without retaliation.
a. Disciplinary interviews
If an employee reasonably believes that he has been sum-
moned to a disciplinary interview, he may request a union rep-
resentative. NLRB v. J. Weingarten, 420 U.S. 251, 260, 263
(1975). Once such a request is made, the employer retains
three options: granting the request; discontinuing the interview;
or offering the employee the choice between continuing with-
out representation, or ending the interview and relinquishing
any associated benefit. Consolidated Freightways Corp., 264
NLRB 541, 542 (1982). However, “the selection of an em-
ployee’s representative belongs to the employee and the union,
in the absence of extenuating circumstances, and as long as the
selected representative is available.” Barnard College, 340
NLRB 934, 935–36 (2003) (citations omitted).
b. Protected concerted activity
The Board construes the term “concerted activities” to in-
clude “those circumstances where individual employees seek to
initiate or induce or to prepare for group action, as well as indi-
vidual employees bringing truly group complaints to the atten-
tion of management.” Meyers Industries (Meyers I), 268
NLRB 493 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
941 (D.C. Cir. 1985), cert. denied 474 U.S. 971 (1985), and
Meyers Industries (Meyers II), 281 NLRB 882 (1986), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. de-
nied 487 U.S. 1205 (1988). A conversation constitutes con-
certed activity when “engaged in with the object of initiating or
inducing or preparing for group action or [when] it [has] some
relation to group action in the interest of the employees.” Mey-
ers II, supra, 281 NLRB at 887 (quoting Mushroom Transpor-
tation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964)).
c. Analytical framework
If an employee is disciplined after exercising their Section 7
right to request a Weingarten representative, or after engaging
in concerted activity, the Board will consider whether such
discipline constituted unlawful retaliation under the framework
established in Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).18 The Wright Line standard is as follows:
[T]he General Counsel must prove by a preponderance of the
evidence that [the employee’s exercise of their Section 7
right] . . . was a substantial or motivating factor in the adverse
employment action. The elements commonly required to
support such a showing are . . . protected concerted activity by
the employee, employer knowledge of that activity, and . . .
[connected] animus on the part of the employer.
If the General Counsel makes the required initial showing, the
burden then shifts to the employer to prove, as an affirmative
defense, that it would have taken the same action even in the
absence of the employee’s union activity. To establish this af-
firmative defense, “[a]n employer cannot simply present a le-
gitimate reason for its action but must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected activity.”
Consolidated Bus Transit, 350 NLRB 1064, 1065–1066 (2007)
(citations omitted). If the employer’s proffered defenses are
found to be a pretext, i.e., the reasons given for its actions are
either false or not relied upon, it fails by definition to show that
it would have taken the same action for those reasons, and there
is no need to perform the second part of the Wright Line analy-
sis. However, further analysis is required if the defense is one
of “dual motivation,” that is, the employer defends that, even if
an invalid reason might have played some part in its motiva-
tion, it would have taken the same action against the employee
for permissible reasons. Palace Sports & Entertainment, Inc. v.
NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005).
2. Garner’s SPI19
The General Counsel demonstrated that the Bellagio violated
Section 8(a)(1), when it issued Garner an SPI following his
request for a Weingarten representative. The General Counsel
adduced a strong prima facie case, while the Bellagio failed to

18 See Barnard College, supra, 340 NLRB at 935–936 (Weingarten
rights); Mesker Door, 357 NLRB No. 59, slip op. at 2 fn. 5 (2011)
(protected concerted activity).
19 These allegations are listed under pars. 5(f)–(k), 6, and 7 of the
complaint.
prove that it would have issued the SPI in the absence of his
Weingarten request.
a. Prima facie case
The General Counsel has made a prima facie showing that
Garner’s SPI was triggered by the exercise of his Weingarten
rights. First, he engaged in protected activity, when he request-
ed a representative at his disciplinary interview.20 Second,
there was close, almost lockstep, timing between the SPI and
Garner’s exercise of his Weingarten rights. Lastly, Wiedmeyer
conceded causation in his written statement. (GC Exh. 3) (stat-
ing that he, “informed [Employee Relations] . . . that [he] . . .
would have to SPI . . . [Garner] because he stated that he was
going back to work without filling out a statement”).21
b. Affirmative defense
The Bellagio failed to show that it would have issued Garner
an SPI,22 absent the exercise of his Weingarten rights. It con-
tended that the SPI was not connected to the exercise of his
Weingarten rights, but instead, resulted from his agitation dur-
ing the disciplinary meeting and associated need to be removed
from the workplace. This stance is unpersuasive for several
reasons. First, Garner credibly testified that he maintained his
composure. Second, the SPI was issued at the end of his shift,
which meant that he could have cooled off during nonworktime
without an SPI. This redundancy suggests invidious intent.
Third, the Bellagio failed to specifically identify others, who
have been issued SPIs under similar circumstances. Fourth, if
Garner genuinely lost control at this meeting, he would have
received independent discipline, which was not done. Fifth, the
SPI form clearly states that it is only reserved for a “serious
situation or policy infraction” or employees at the last discipli-
nary step, which widely exceeded the bounds of Garner’s situa-
tion. Lastly, it is plausible that Wiedmeyer became frustrated
when Garner derailed his meeting by requesting a steward, and
issued the SPI out of such frustration. In sum, the Bellagio’s
contention that his behavior prompted the SPI is unconvincing.
c. Conclusion
The General Counsel has established that Wiedmeyer issued
Garner an SPI because he exercised his Weingarten rights. The
SPI, as a result, violated Section 8(a)(1).23 See Safeway Stores,
303 NLRB 989, 990 (1991) (where “[t]he nexus between the
statutory right and the disc[ipline] . . . is clear,” the discipline
violates Sec. 8(a)(1)).

20 Wiedmeyer agreed that the interview was disciplinary in nature,
with Garner ultimately receiving a verbal warning for the tip incident.
21 Sanchez also testified that their inability to find a steward and con-
tinue the meeting triggered the SPI. (Tr. 97.)
22 As a threshold matter, the Bellagio’s claim that the SPI was
nondisciplinary is flawed, given that the SPI clearly contemplates fur-
ther disciplinary action or potential separation. (GC Exh. 25.)
23 Although the complaint avers that the SPI also violated Sec.
8(a)(3), it is unnecessary to address this allegation, given that this alle-
gation would not materially affect the remedy. See Provider Services
Holding, LLC, 356 NLRB No. 181, slip op. at 1 fn. 3 (2011).
11
BELLAGIO, LLC
3. Zaidi’s PCI investigation24
The General Counsel has alleged that the Bellagio violated
Section 8(a)(1), when it investigated Zaidi’s PCI compliance.
Specifically, it asserts that the investigatory meetings were
designed to retaliate against her valet break area complaints. I
find that, although the General Counsel established a prima
facie case, the Bellagio persuasively adduced that it would have
taken the same action against Zaidi, absent her protected activi-
ty.
a. Prima facie case
The General Counsel made a prima facie showing that
Zaidi’s PCI investigation was triggered by her concerted com-
plaints. Her complaints were protected concerted activity; she
led a group complaint about the new break area. She amassed
24 signatures on a petition, and voiced the group’s complaints
to Wiedmeyer, Berry, and Kendigelen. Kendigelen demon-
strated animus, when he responded angrily.
b. Affirmative defense
The Bellagio demonstrated that it would have investigated
Zaidi’s PCI compliance, irrespective of her group complaints.
First, the Bellagio has a substantial interest in protecting guest
credit card information, which was furthered by a PCI investi-
gation that flowed from an anonymous tip. Second, the Gen-
eral Counsel wholly failed to show that Kendigelen even had
access to Zaidi’s email, which deeply undercuts its retaliation
theory. Specifically, Kendigelen credibly denied such access,
and no one contradicted this point.25 Third, the PCI investiga-
tion was innocuous, inasmuch as Zaidi was exonerated, without
discipline.26 Given that it is undisputed that her first email
violated PCI policy and that she failed to promptly notify man-
agement about this breach, the Bellagio acted benevolently by
not issuing even a verbal warning for her failure to promptly
notify supervision about her breach.27 Such latitude does not
support retaliation. Fourth, even assuming arguendo that
Kendigelen was as Machiavellian as suggested, it then becomes
inexplicable that he: would have also failed to delete Zaidi’s
exculpatory email;28 would have voluntarily relinquished all
control over the investigation, solely on the basis of Zaidi’s
request; or would waited almost 2 months to retaliate against
her. Fourth, given that Zaidi’s complaints were relatively mi-
nor, it is improbable that Kendigelen, a high-level manager,
would been even minimally motivated to retaliate against her.
This is particularly true, given that, if caught, he could have
suffered serious discipline for creating a hoax and breaking into
an email account without authorization.29 Lastly, the Bellagio

24 These allegations are listed under pars. 5(a)–(b), (d)–(e), and 6 of
the complaint.
25 It is equally probable that a disgruntled coworker could have set
up Zaidi, as opposed to Kendigelen.
26 Moreover, Investigations Manager Young testified that such in-
vestigations are routine.
27 It is likely that, if the Bellagio truly sought to retaliate against her,
it would not have overlooked this obvious disciplinary venue.
28 Simply put, why would Kendigelen have undergone this time-
consuming charade only to leave Zaidi with an ironclad defense?
29 Young testified that approval to access a coworker’s email account
voluntarily helped her find exculpatory evidence in the “vault,”
which is deeply inconsistent with retaliation.
c. Conclusion
The General Counsel failed to show that Zaidi’s PCI investi-
gation was retaliatory. The Bellagio persuasively demonstrated
that it would have commenced the PCI investigation, irrespec-
tive of her protected concerted activity, and that the investiga-
tion was conducted in an evenhanded manner.
B. Directive to not Discuss the SPI30
The Bellagio violated Section 8(a)(1) when Wiedmeyer told
Garner to not discuss the SPI with coworkers. Generally, em-
ployers cannot ban their employees from speaking to coworkers
about discipline. Hyundai America Shipping Agency, 357
NLRB No. 80 (2011).
C. Surveillance31
The Bellagio’s surveillance violated Section 8(a)(1). An
employer unlawfully “surveils employees engaged in Section 7
activity by observing them in a way that is ‘out of the ordinary’
and thereby coercive.” Aladdin Gaming, LLC, 345 NLRB 585,
586 (2005). Indicia of coerciveness, include the “duration of
the observation, the employer’s distance from employees while
observing them, and whether the employer engaged in other
coercive behavior during its observation.” Id. Wiedmeyer
aggressively observed Garner’s SPI discourse under the auspi-
ces of an invalid SPI, banned such discussion, ousted him from
the workplace and hovered as he left.
D. Impression of Surveillance32
The Bellagio did not create an unlawful impression of sur-
veillance when it searched Zaidi’s emails. Statements or ac-
tions by employer agents causing employees to reasonably
assume that their protected activities are under surveillance
violate the Act. Flamingo Las Vegas Operating Co., 359
NLRB No. 98 (2013). The Bellagio had legitimate cause to
search Zaidi’s emails in furtherance of its interest in protecting
client credit card data. Its investigation ultimately exonerated
Zaidi and was nonretaliatory. These actions, which were han-
dled discreetly, would not reasonably cause someone to pre-
sume surveillance.
CONCLUSIONS OF LAW
1. The Bellagio is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Bellagio violated Section 8(a)(1) of the Act by
(a) Refusing to allow Garner to be represented by a union
representative during an investigatory interview, where he had
reasonable cause to believe that discipline could result.

is arduous, and requires the General Counsel’s consent.
30 These allegations are listed under pars. 5(l) and 6 of the complaint.
31 These allegations are listed under pars. 5(m) and 6 of the com-
plaint.
32 These allegations are listed under pars. 5(c) and 6 of the com-
plaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
(b) Issuing Garner an SPI after being summoned to an inves-
tigatory interview, where he had reasonable cause to believe
that discipline might result, and where the SPI was issued be-
cause he refused to participate in the disciplinary interview
without union representation.
(c). Engaging in surveillance of employees’ union or protect-
ed concerted activities.
(d) Promulgating, maintaining, and enforcing an oral rule
prohibiting employees from discussing disciplinary matters
under investigation by employee relations.
4. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Bellagio has not violated the Act except as set forth
above.
REMEDY
Having found that the Bellagio has engaged in certain unfair
labor practices, it must be ordered to cease and desist and to
take certain affirmative action designed to effectuate the poli-
cies of the Act. The Bellagio shall remove from its records any
reference to Garner’s SPI, give him written notice of such ex-
punction, and inform him that its unlawful conduct will not be
used against him as a basis for future discipline.33 Finally, the
Bellagio shall distribute appropriate remedial notices electroni-
cally via email, intranet, internet, or other appropriate electronic
means to unit employees at the facility, if it customarily com-
municates with those workers in this manner, in addition to the
traditional physical posting of paper notices. See J. Picini
Flooring, 356 NLRB No. 9 (2010).
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended34
ORDER
The Respondent, Bellagio, LLC, Las Vegas, Nevada, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Denying employees’ requests to be represented by union
representatives of their choosing at investigatory interviews,
when such employees have reasonable cause to believe that
discipline might occur.
(b) Issuing employees an SPI or other discipline after being
summoned to investigatory interviews, where they possess
reasonable cause to believe that discipline might occur, and
where the SPI or other discipline was issued because of their
refusal to participate in the disciplinary interview without union
representation.
(c) Engaging in surveillance of employees’ union or other
protected concerted activities.
(d) Promulgating, maintaining and enforcing an oral rule
prohibiting employees from discussing disciplinary matters
under investigation by employee relations.

33 A full make-whole remedy is not warranted herein, given that he
has already been reimbursed for lost wages.
34 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful SPI, and with-
in 3 days thereafter notify Garner in writing that this has been
done and that such discipline will not be used against him in
any way.
(b) Within 14 days after service by the Region, physically
post at its Las Vegas, Nevada facility, and electronically send
and post via email, intranet, internet, or other electronic means,
if it customarily communicates with the unit electronically, to
its unit employees who were employed at its Las Vegas, Neva-
da facility at any time since May 13, 2013, copies of the at-
tached notice marked “Appendix.”35 Copies of the notice, on
forms provided by the Regional Director for Region 28, after
being signed by the Bellagio’s authorized representative, shall
be physically posted by the Bellagio and maintained for 60
consecutive days in conspicuous places including all places
where Notices to employees are customarily posted. Reasona-
ble steps shall be taken by the Bellagio to ensure that the Notic-
es are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Bellagio has gone out of business or closed the facility involved
in these proceedings, the Bellagio shall duplicate and mail, at
its own expense, a copy of the notice to all current employees
and former employees employed by it at the facility at any time
since May 13, 2013.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated Washington, D.C. March 20, 2014
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

35 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
13
BELLAGIO, LLC
WE WILL NOT deny your request to be represented by a union
representative of your choice, while completing witness state-
ment forms or participating in investigatory interviews, which
you have reasonable cause to believe will result in discipline.
WE WILL NOT issue you a suspension pending investigation
or otherwise discipline you for refusing to complete a witness
statement form or participate in a disciplinary interview, which
you have reasonable cause to believe will result in discipline,
where the suspension pending investigation or other discipline
was because of your refusal to complete the witness statement
form or participate in the interview without union representa-
tion.
WE WILL NOT engage in surveillance of your union or other
protected concerted activities.
WE WILL NOT promulgate, maintain, and enforce an oral rule
prohibiting you from discussing with other persons any disci-
plinary matters under investigation by our employee relations
department.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful suspension pending
investigation that we issued to Gabor Garner.
WE WILL, within 3 days thereafter, notify him in writing that
this has been done and that the suspension pending investiga-
tion will not be used against him in any way.
BELLAGIO, LLC