IGT d/b/a International Game Technology

National Labor Relations Board - Board Decisions

Aug 24, 2018

366 NLRB No. 170 (N.L.R.B. 2018)

366 NLRB No. 170
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.
IGT d/b/a International Game Technology and Inter-
national Union of Operating Engineers Local
Union 501, AFL–CIO. Cases 28–CA–166915,
28–CA–173256, 28–CA–174003, and 28–CA–
174526
August 24, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
On November 15, 2016, Administrative Law Judge
Jeffrey D. Wedekind issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
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,2 findings, and conclusions3

1 Member Emanuel is recused and took no part in the consideration
of this case.
2 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.
In the absence of exceptions, we adopt the judge’s dismissals of the
allegations that the Respondent’s threat to union stewards of a loss of
overtime also constitutes unlawful direct dealing, that the Respondent
unlawfully failed to provide the Union with wage or salary plans, and
that the Respondent unlawfully misrepresented the scope of work that
would be performed by AppleOne temporary employees.
3 We adopt the judge’s findings that the Respondent violated Sec.
8(a)(5) and (1) of the Act by failing and refusing to engage in decision-
al and effects bargaining over the subcontracting of the Station Casinos
UGA project to AppleOne temporary employees. In adopting the
judge’s findings, we do not rely on his statements regarding non-labor
cost reasons for subcontracting.
We also adopt the judge’s finding that the Respondent violated Sec.
8(a)(1) by threatening employees with a loss of overtime. As found by
the judge, during a heated exchange at the parties’ May 4, 2016 bar-
gaining session, the Respondent’s lead negotiator, Theo Gould, said to
unit employees Juan Robles and Shane West, “Are you going to let this
guy [referring to Union Organizing Director Jose Soto] take overtime
away from you, are [you] going to let this guy take money out of your
pockets?” In finding that Gould’s statement threatened a loss of over-
time, the judge observed that the Respondent had already offered addi-
tional overtime opportunities to the unit employees and that overtime
was not the topic of discussion at the May 4 bargaining session. Ra-
ther, the parties were discussing the Respondent’s use of a subcontrac-
tor on a casino project, which the Union was insisting it had a right to
bargain about. In that context, we agree with the judge that Gould’s
only to the extent consistent with this Decision and Or-
der.4
For the reasons explained below, we reverse the
judge’s finding that the Respondent violated Section
8(a)(5) and (1) of the Act by failing to provide the Union
with a list of all of its locations.
The Information Request
A. Facts
The Respondent is a multinational company that as-
sembles, installs, removes, services, and repairs gaming
machines. The Union was certified on May 26, 2015, to
represent a unit of about 42 technicians at the Respond-
ent’s Las Vegas location. In June 2015, the Union re-
quested information to prepare for bargaining, including
wage and salary plans at all locations. The Respondent
provided wage scale and salary plans for the unit techni-
cians in its Las Vegas location and explained that the
same wage scale and salary plan was applied at all of its
locations across the country. The Respondent also re-
peatedly stated during negotiations that it wanted the Las
Vegas contract to mirror its contract in New York with
the Communications Workers of America (CWA).
On March 28, 2016, the Union requested, via email,
that the Respondent provide “any company wage or sala-
ry plans” for employees “across the country,” as well as
“a list of all company locations,” stating that the infor-
mation was needed before the Union could bargain over
“shift differentials.” On April 6, 2016, the Respondent
stated that the wage and salary plans at other locations
across the country had already been provided. The Re-
spondent implicitly rejected the Union’s request for all
company locations, stating, “Responsive information
applicable to the bargaining unit members has already

unprompted statement regarding overtime would reasonably be per-
ceived as a threat to take away such opportunities in response to the
Union’s insistence on bargaining over the subcontracting decision.
Unlike our colleague, we find no basis for assuming that employees
Robles and West would understand that Gould was referring to a prior
conversation regarding overtime.
Contrary to his colleagues, Member Kaplan would dismiss the threat
allegation. In his view, the employees would have understood that,
when the Respondent’s representative Gould asked them whether they
were going to let the union representative “take overtime away from
you,” he was referring to the Union’s prior offer to supply temporary
workers and its effect on the Respondent’s offer of overtime to unit
employees to perform that work. The employees would have under-
stood that hiring temporary workers could affect their overtime oppor-
tunities, and that Gould was not threatening action by the Respondent.
The judge additionally found that the Respondent’s nondisparage-
ment provision in its Separation Agreement and General Release vio-
lates Sec. 8(a)(1). We sever that issue and retain it for further consider-
ation.
4 We have amended the conclusions of law and modified the judge’s
recommended Order to conform to our findings herein, and have substi-
tuted a new notice to conform to the Order as modified.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
been provided to the Union.” The Union then restated
the request in pertinent part, requesting that, “for the
purpose of collective bargaining,” the Respondent pro-
vide “a list of all jurisdictions where [the Respondent]
conducts business . . . .”
The following day, the Respondent requested “the jus-
tification for providing all Company locations.” The
Union did not respond. The Union sought and received
further clarification about the wage and salary plans.
The Respondent explained to the Union that the wage
ranges used at all of its locations are based on market
analyses, including surveys and purchased wage data,
and provided more information about the software pro-
gram it used to determine geographical wage differen-
tials. The Union did not object to the responses, nor did
it renew its request for a list of all company locations.
B. Discussion
The judge found that the Respondent’s failure to pro-
vide the Union with a list of all of its locations violated
Section 8(a)(5) and (1). Relying on the Respondent’s
statements during negotiations that it wanted the contract
to mirror the CWA contract in New York, the judge
found that the relevance of all company locations should
have been apparent to the Respondent.
It is well established that an employer is obligated to
provide a union with requested information pertaining to
employees in the bargaining unit, or otherwise presump-
tively relevant information.5 An employer, however, has
no obligation to provide a union with nonunit infor-
mation—such as the list of the Respondent’s locations
here—unless the union has demonstrated the relevance
of the nonunit information or its relevance should have
been apparent to the employer under the circumstances.6
Contrary to the judge, we find no basis for concluding
that the relevance of this information should have been
apparent to the Respondent or that the Union otherwise
demonstrated relevance. Although the Respondent had
told the Union that it wanted the Las Vegas contract to
mirror a contract in New York, it gave no other indica-

5 Disneyland Park, 350 NLRB 1256, 1257 (2007).
6 Id. at 1258; see also Brazos Electric Power Co-op, Inc., 241
NLRB 1016, 1018–1019 (1979) (employer was “on notice” of the
relevance of requested information about a wage increase for nonunit
employees where it had a practice of maintaining parity between unit
and nonunit employees, although the union had not spelled out the
relevance of the information to the employer), enfd. in relevant part 615
F.2d 1100 (5th Cir. 1980). Lamar Outdoor Advertising, 257 NLRB 90,
92–93 (1981), cited by the judge, is distinguishable. In that case, an
administrative law judge found that the relevance of the union’s request
for wage information for all of the employer’s facilities had been estab-
lished. Unlike here, the employer in Lamar had a practice, which it had
told employees about during the election campaign, of setting wages
and benefits at new locations based on prevailing conditions at its other
locations.
tion that its other locations had any bearing on its con-
tract proposals. It had already explained to the Union
that it applied the same wage and salary plans across all
locations, provided those wage plans, and explained its
basis for determining wages and geographical differen-
tials.
Further, although the Respondent informed the Union
that it wanted the Las Vegas contract to mirror the New
York contract, the Union did not request the New York
contract. The Union also failed to respond to the Re-
spondent’s request that it explain the relevance of all
company locations.7 Under the circumstances here, the
Union’s silence would reasonably signal to the Respond-
ent that it was satisfied with the information it had re-
ceived and that the list of locations was not relevant or
needed.
Accordingly, we find that the Respondent’s failure to
provide a list of all company locations to the Union did
not violate Section 8(a)(5) and (1), and the allegation is
dismissed.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following paragraph for Conclusion
of Law 1.
1. The Company has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act by
failing and refusing to provide the Union with a mean-
ingful opportunity to bargain over the Company’s deci-
sion to use AppleOne temporary employees on the Sta-
tion Casinos UGA project and the effects of that deci-
sion.
2. Delete paragraph 2(b) of the judge’s Conclusions of
Law.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, IGT
d/b/a International Game Technology, Las Vegas, Neva-
da, its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Cease and desist from
(a) Unilaterally subcontracting the work of unit em-
ployees without affording the Union prior notice and a

7 We note that it is not readily apparent that the list of all locations
would have enabled the Union to test any representation made by the
Respondent. Accordingly, we find that once the Respondent requested
an explanation of the request, it was incumbent upon the Union to
provide one and that it failed to do so. The outcome here may well
have been different had the Union provided at least some insight into
why it needed this information.
IGT D/B/A INTERNATIONAL GAME TECHNOLOGY 3
meaningful opportunity to bargain over the decision and
its effects.
(b) Threatening unit employees with loss of overtime
if the Union requests to bargain on their behalf over sub-
contracting their work or other terms and conditions of
their employment.
(c) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Before subcontracting the work of unit employees,
notify and, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of employees
in the following bargaining unit:
All full-time and regular part-time technicians and
technicians-CS employed by the Employer at its Las
Vegas, Nevada facility; excluding all other employees,
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
(b) Make whole the unit employees for any loss of pay
or benefits resulting from its unlawful unilateral decision
to subcontract unit work on the Station Casinos UGA
project, in the manner set forth in the remedy section of
the decision.
(c) Compensate the affected employees for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and file with the Regional Director for
Region 28, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar year for each employee.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Las Vegas, Nevada, copies of the attached
notice marked “Appendix”.8 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-

8 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.”
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 30, 2015.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the allegation that the Re-
spondent violated Section 8(a)(1) by maintaining an
overly broad nondisparagement provision in its Separa-
tion Agreement and General Release is severed from this
case and retained for future resolution.
Dated, Washington, D.C. August 24, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
4 DECISIONS OF THE 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
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 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 subcontract the work of unit employees
without affording International Union of Operating En-
gineers Local Union 501, AFL–CIO (the Union) prior
notice and a meaningful opportunity to bargain over the
decision and its effects until either an agreement or bona
fide impasse has been reached.
WE WILL NOT threaten you with loss of overtime if the
Union requests to bargain on your behalf over subcon-
tracting your work or other terms and conditions of your
employment.
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 cease subcontracting the work of our unit
employees on the Station Casinos UGA project and, WE
WILL, on request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement.
WE WILL make whole our unit employees for any loss
of pay or benefits resulting from our unlawful unilateral
decision to subcontract unit work on the Station Casinos
UGA project.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and file with the Regional Director for
Region 28 within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar year for each employee.
IGT D/B/A INTERNATIONAL GAME TECHNOLOGY
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-166915 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 A. Higley, Esq., for the General Counsel.
Theo E. M. Gould and Matthew T. Cecil, Esqs. (Littler Mendel-
son, P.C.), for the Respondent Company.
Adam Stern, Esq., for the Charging Party Union.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. IGT
d/b/a International Game Technology assembles, installs, re-
moves, services, and repairs gaming machines. It is a multina-
tional company with numerous locations in the U.S. and around
the world.1
In early April 2015, another company, GTECH, purchased
and merged with IGT and adopted its name. The following
month, on May 26, the Board certified Operating Engineers
Local 501 as the collective-bargaining representative of the
approximately 42 full-time and regular part-time technicians
employed by the newly merged company at its Las Vegas loca-
tion. Several months later, in late October, the Company and
the Union began negotiating an initial collective-bargaining
agreement to cover the Las Vegas technicians.
The complaint alleges that the Company committed several
unfair labor practices during the Las Vegas negotiations in
violation of Section 8(a)(1) and (5) of the National Labor Rela-
tions Act. Specifically, it alleges that the Company refused to
furnish the Union with requested information about other loca-
tions where the Company does business and the wage scales at
those locations; used temporary workers employed by a staffing
company to perform unit work at certain Las Vegas worksites
without bargaining with the Union to agreement or impasse;
bypassed the Union and dealt directly with the unit technicians
regarding the Company’s use of the temporary workers; and
threatened the unit technicians with loss of benefits because
the Union sought to bargain over the use of the temporary
workers. In addition, the complaint alleges that the Company
has maintained an overbroad nondisparagement provision in its
standard separation agreement.2

1 There is no dispute, and the record establishes, that the Board has
jurisdiction.
2 See GC Exh. 1(v) (the May 31 complaint); GC Exh. 1(ac) (the
June 29 notice of intent to amend); and Tr. 10–12 (granting motion to
IGT D/B/A INTERNATIONAL GAME TECHNOLOGY 5
The hearing was held on June 29 and 30, and July 6. The
General Counsel and the Company thereafter filed briefs on
August 10. As discussed below, the evidence supports all of
the complaint allegations except the refusal-to-provide-wage-
information and direct-dealing allegations.3
I. ALLEGED FAILURE TO PROVIDE INFORMATION RELEVANT TO
CONTRACT NEGOTIATIONS
The General Counsel alleges that, since about April 13,
2016, the Company has unlawfully refused to provide the Un-
ion with two items of information it requested during the con-
tract negotiations: (1) the wage scale for technicians across the
country; and (2) a list of all company locations. As discussed
below, a preponderance of the evidence establishes that the
Company unlawfully failed to provide the second, but not the
first.
The Union initially requested the subject information in late
March. The Company had previously provided the Union with
information about the wage and salary plan in Las Vegas.
However, during the negotiations, the Company repeatedly
stated that it wanted the Las Vegas contract to mirror the con-
tract in New York with the Communications Workers of Amer-
ica (Tr. 226, 232). Accordingly, in a March 28 email, the Un-
ion requested that the Company provide “any company wage or
salary plans” for employees “across the country,” as well as “a
list of all company locations.”
Jose Soto, the Union’s director of organizing, testified at the
hearing that the Union requested the information because the
Union wanted the Las Vegas contract to mirror the wages and
benefits at other locations, particularly other locations in south-
ern Nevada and southern California within the Union’s jurisdic-
tion, rather than in New York (Tr. 226–228, 232). However,
the Union did not explain that to the Company. Nor did it spe-
cifically reference the Company’s prior statements about mir-
roring the New York contract. Rather, it just stated that the
information was needed before the Union could begin bargain-
ing over shift differentials (GC Exh. 18).
The Company responded on April 6. Regarding the request
for wage or salary plans at other locations across the country,
the Company stated, “This information has already been pro-

amend the complaint to remove one allegation and add two others).
The complaint also alleges that the Company violated Section 8(a)(5)
of the Act by misrepresenting to the Union the scope of the work that
would be performed by the temporary workers. However, the General
Counsel’s posthearing brief does not address this allegation. Nor does it
rely on any such alleged misrepresentation as support for the alleged
unlawful refusal to bargain over using temporary workers on the pro-
ject. Thus, the misrepresentation allegation appears to have been aban-
doned. In any event, it is dismissed for the reasons discussed infra.
3 Specific citations to the record are provided to aid review, and are
not necessarily exclusive or exhaustive. In making credibility findings,
all relevant factors have been considered, including the interests and
demeanor of the witnesses; whether their testimony is corroborated or
consistent with the documentary evidence and/or the established or
admitted facts; inherent probabilities; and reasonable inferences that
may be drawn from the record as a whole. See, e.g., Daikichi Corp.,
335 NLRB 622, 633 (2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003);
and New Breed Leasing Corp. v. NLRB, 111 F.3d 1460, 1465 (9th Cir.),
cert. denied 522 U.S. 948 (1997).
vided to the Union” (GC Exh. 20). At the hearing, Cindy
Hartman, the Company’s HR director, testified that this re-
sponse referred to the wage and salary plan in Las Vegas.
Hartman testified that the wage and salary plan is the same
across the country, and that the Union was told how it applied
across the country in September 2015. (Tr. 105–106.) With
respect to the request for all company locations, the Company
essentially or implicitly rejected the request for this nonunit
information, stating, “Responsive information applicable to the
bargaining unit members has already been provided to the Un-
ion.”
The Union replied the next day. Regarding wage or salary
plans, the Union stated that it wanted to “clarify” its original
request. The Union stated that it was requesting “the wage
scale for the techs in jurisdictions where IGT and GTECH con-
ducts business[,] for example Prescott AZ, Scottsdale AZ,
Coachella CA, Needles CA, Pauma Valley CA, Cabazon CA,
Pala CA and Temecula CA etc.[,] [i]ncluding premium pay and
health benefits.” Regarding company locations, the Union
restated the request as follows: “For the purpose of collective
bargaining please provide . . . a list of all jurisdictions where
IGT and GTECH conducts business for example Prescott AZ,
Scottsdale AZ, Coachella CA, Needles CA, Pauma Valley CA,
Cabazon CA, Pala CA and Temecula CA etc.” (GC Exh. 21.)
The Company responded the next day. Regarding wage
scales, the Company stated, “All plans are all the same and
have already been provided to the Union.” With respect to
other company locations, the Company stated, “Please provide
the justification for providing all Company locations.” (GC
Exh. 22.)
The Union did not reply to the Company’s query about why
the Union was requesting all company locations (Tr. 243).
However, it did reply regarding the requested wage infor-
mation. On May 12, the Union sent an email to the Company
stating that the Union had still not received “specific details”
regarding either “wages or salary plans” or “the wage scale”
where the Company conducts business.
The Company responded on May 17. With respect to wages
or salary plans, the Company stated:
IGT participates in surveys and purchases wage data in order
to determine our Company wage ranges. The wage data that
both legacy companies utilize is out of date. With that said, I
am providing the most recent market analysis (mid-points) for
Field Services Technicians that we have recently begun to use
in various segments of the Field Services organization . . .
Level 1 = $38,000, Level II = $42,900, Level III = $56,000,
Level IV = $62,000.
Regarding the wage scale, the Company stated:
All plans are the same however, we do apply a geographical
differential based on national average market data in areas
throughout the country where there is a higher or lower cost
of living. Geographical differentials are determined based up-
on where an employee works. A geographical differential
does not apply to Murrieta, CA or Las Vegas. In Phoenix, AZ
area there is a 7% geographical differential. [R. Exh. 10.]
The Union replied the next day. Regarding wage or salary
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plans, the Union did not object to the Company’s response.
Instead, it simply requested “a copy of the old and updated
surveys and purchases wage data that determines bargaining
unit members’ wage rates.” The Union likewise did not object
to the Company’s response regarding the wage scale. Rather,
the Union simply asked for “a copy of the plans used to apply
geographical differentials.” (R. Exh. 11.)
The Company responded on May 23. With respect to the old
and updated data, the Company advised that it “would check
and see” if it “still had the old data relating to the bargaining
unit members wage rates,” and that “all information provided is
applicable to all [field service technicians] throughout the US.”
Regarding the plans used to determine geographical differen-
tials, the Company stated:
We use a software program called ERI Economic Research
Institute, that we purchase, and the data is updated quarterly
from them. The way their program works is that we enter the
employee’s zip code and the system tells us if there is a dif-
ferential or not. We have already provided you the area dif-
ferential information you requested. [R. Exh. 13.]
Again, the Union did not object to this response. Nor did it
request any further information from the Company related to it.
A. Whether the requested information was relevant
to bargaining
It is well-established that information concerning nonunit
employees is not presumptively relevant to bargaining. Thus,
an employer is not obligated to provide such information to the
union on request unless the union demonstrates the relevance to
the employer at the time of the request or the relevance is obvi-
ous or should have been apparent to the employer under the
circumstances. See Kraft Foods North America, 355 NLRB
753, 754–755 (2010); and Disneyland Park, 350 NLRB 1256,
1258 (2007).
Here, as indicated above, the Union did not specifically ex-
plain to the Company why it wanted the requested nonunit
information about all other company locations and their wage
rates. Cf. E.I. Du Pont de Nemours & Co., 264 NLRB 48, 50–
52, fn. 5 (1982), enfd. 744 F.2d 536 (6th Cir. 1984) (union
explained to employer at a bargaining session that it was seek-
ing the nonunit information about hourly wages at all company
plants because it thought internal equity should be applied on a
company-wide basis, and that comparable skills should be paid
the same at all company locations).
Nor is there any authority holding that the relevance of such
information is obvious or apparent on its face, i.e., even without
any additional facts or circumstances demonstrating relevance.
The lone case cited by the General Counsel—Salem Hospital
Corp., 358 NLRB 837, 840 (2012), reaffd. 361 NLRB 684
(2014)—is clearly distinguishable. The union there requested
information about the wages of contract employees used by the
employer to work side by side with the unit employees.
However, as indicated above, here there is an additional fact
or circumstance: the Company repeatedly stated during the
negotiations that it wanted the Las Vegas contract to mirror the
CWA contract in New York. This is sufficient under Board
precedent to find that the relevance of the wage information
should have been apparent to the Company. See Lamar Out-
door Advertising, 257 NLRB 90, 92–94 (1981) (finding that the
relevance of the newly certified union’s request for wage data
at all company facilities should have been apparent because the
employer had told employees during the election campaign at
the Dayton, Ohio facility that they could expect to receive the
same wages set forth in a union contract at the parent compa-
ny’s Orlando, Florida facility if the union was elected).4
The relevance of the Union’s companion request for all
company locations likewise should have been apparent to the
Company. A union is entitled to information necessary to eval-
uate or verify the accuracy of claims or representations made
by the employer during bargaining. See, e.g., Dover Hospitali-
ty Services, 358 NLRB 710, 715 (2012), reaffd. 361 NLRB 906
(2014), enfd. 636 Fed. Appx. 826, 827 (2d Cir. 2016); National
Extrusion & Mfg. Co., 357 NLRB 127, 128 (2011), enfd. sub
nom. KLB Industries v. NLRB, 700 F.3d 551, 557 (D.C. Cir.
2012); Comar, Inc., 349 NLRB 342, 355 (2007); and Wallace
Metal Products, Inc., 244 NLRB 41 fn. 2 (1979).5 Here, the
Union obviously needed to know where the Company’s loca-
tions were in order to verify that the wages there were what the
Company said they were.
B. Whether the Company unlawfully refused to provide the
requested information
As indicated above, it is undisputed that the Company did
not provide the Union with all company locations. The Com-
pany offers two arguments why its failure or refusal to do so
was not unlawful.
First, the Company argues that the request was ambiguous or
overbroad because it was not expressly limited to locations in
the U.S. However, given that the Union’s companion request
for employee wage or salary plans was limited to locations in
the U.S., and that its April 7 email restating the request for all
locations only listed examples in the U.S., it should have been
clear to the Company that the Union was seeking only U.S.
locations.6
Second, the Company argues that it was justified in not
providing the information because the Union failed to respond
to its subsequent April 8 request to justify why the Union was
seeking all company locations. In support, the Company cites
Superior Protection, Inc., 341 NLRB 267, 269 (2004), enfd.
401 F.3d 282 (5th Cir.), cert. denied 546 U.S. 874 (2005), and
similar cases, holding that an employer may lawfully request
clarification of an ambiguous or overbroad information request
before complying with it. However, as discussed above, the
Union’s request for all company locations was neither.
It may be that the Company did not fully understand why the
Union was requesting all company locations. It might well

4 The Company does not offer any basis to distinguish Lamar. In-
deed, although its answer to the complaint denies that the requested
wage information at other locations was relevant, its posthearing brief
does not dispute its relevance.
5 An employer is likewise entitled to information necessary to verify
the union’s representations. See, e.g., Teamsters Local 122 (August A.
Busch & Co.), 334 NLRB 1190, 1223–1224 (2001).
6 Soto confirmed at the hearing that the Union was not seeking in-
formation about locations outside the U.S. (Tr. 241).
IGT D/B/A INTERNATIONAL GAME TECHNOLOGY 7
have been better, as a practical matter, if the Union had re-
sponded to the Company’s request for an explanation, regard-
less of whether the law required it to under the circumstances.
An ounce of communication is worth a pound of litigation.
Nevertheless, as discussed above, the Union was not in fact
obligated, as a legal matter, to provide the Company with an
explanation under the circumstances. The Company therefore
violated the Act by failing to promptly provide the information
to the Union on request. See Depository Trust Co., 300 NLRB
700, 705 (1990) (employer unlawfully refused to provide the
union with nonunit information, notwithstanding the union’s
failure to respond to the employer’s request for a specific ex-
planation or justification for seeking the information, as the
relevance of the information was self-evident under the circum-
stances).
A different conclusion is warranted, however, with respect to
the Union’s request for wage or salary plans or scales at other
company locations around the country. As indicated above, the
Company responded to the Union’s requests for that infor-
mation, on April 6 and 8, and May 17 and 23. Further, the
Union did not object to the Company’s May 17 and 23 respons-
es, but followed up on the former and did not respond to the
latter. Thus, by all appearances, the Union was satisfied with
those responses.7
Soto testified at the hearing that he was not satisfied with
those responses (Tr. 234, 351–352, 366–370). However, he
never communicated that to the Company. See Day Automotive
Group, 348 NLRB 1257, 1262–1263 (2006) (finding no viola-
tion where the employer had reason to believe it had satisfied
the union’s requests and the union never said the information
provided was insufficient or requested additional information).8
Nor were the Company’s responses plainly inadequate. Cf.
Airport Aviation Services, 292 NLRB 823, 824 (1989) (finding
a violation, notwithstanding the union’s failure to apprise the
employer that its responses were insufficient, as the responses
were “plainly” inadequate). Accordingly, the allegation that

7 None of the Union’s charges specifically alleged that the Company
had unlawfully failed to provide the requested information. The three
8(a)(5) charges were filed between April 5 and 20 and alleged only that
the Company had “failed and refused to bargain in good faith with [the
Union] by making unilateral changes without affording the Union a
meaningful opportunity to bargain,” and, “by these and other acts,” had
“restrained and coerced employees in the exercise of their Section 7
rights guaranteed to them under [the Act].” See GC Exh. 1(l), (r), and
(t) (all of which contain identical allegations). The record indicates that
the first time the refusal-to-provide-information allegations formally
surfaced was in the consolidated complaint issued by the General
Counsel on May 31 (GC Exh. 1(v)). And the Company’s June 14 an-
swer was consistent with the facts described above. See GC Exh. 1(x),
at 6 (“The Union accepted Respondent’s final responses to the requests
for information without requesting additional information or clarifica-
tion”).
8 Compare Boeing Co., 364 NLRB No. 24 (2016) (finding a viola-
tion where the union contacted and questioned the employer about
information that had still not been provided, and the employer replied,
“what you’ve got is all you’re going to get”).
the Company unlawfully failed to provide the Union with the
requested wage information is dismissed.9
II. ALLEGED FAILURE TO BARGAIN OVER USING TEMPORARY
CONTRACT WORKERS TO PERFORM UNIT WORK
In April 2016, the Company began using temporary workers
employed by a staffing company (AppleOne) to install player
tracking devices—so-called universal game adapters (UGAs)—
into slot machines at Station Casinos properties in Las Vegas.
The General Counsel alleges that the Company unlawfully
failed and refused to bargain over this decision and its effects.
As discussed below, the allegation is supported by a preponder-
ance of the evidence.
The Company first advised the Union about the Station Ca-
sinos UGA project at a bargaining session on March 17, during
a discussion of current issues.10 The Company said the contract
was not finalized yet and did not give the Union a start date.
However, the Company said that, because the project would be
such a large one-time job (approximately 10,000 gaming ma-
chines at 16 Station Casinos properties), the Company would
not be able to handle it with its own technicians. The Company
said it would therefore be using AppleOne temporary workers
on the project. However, the Company said it would offer
overtime work on the project to any unit technician that wanted
it.
The Union stated that it did not object to using the AppleOne
temporary workers as long as they did not do unit work. As
described in the IGT job description for unit technicians, that
work includes “carr[ying] out activities related to” the “semi-
routine” to “highly complex” “installation, service, mainte-
nance and upgrading of gaming systems and equipment” (GC
Exh. 2).
Shondra Deloach, the Company’s pacific region field service
director, replied that the temporary workers would be doing
“material handling.” At the hearing, Deloach testified that, by
“material handling,” she meant “in relation to moving of the
actual material . . . physically handling the material.” She ad-
mitted that this could “mean different things, depending on
what is needed,” including but not always installing the materi-
al into gaming machines. She also admitted that she did not
have a clear idea at that time what work the AppleOne workers
would be performing. (Tr. 138–139, 150.)
Whatever Deloach meant, the Union interpreted her response
to mean that the AppleOne temporary workers would not actu-
ally be installing the UGA system into the slot machines, but
just unboxing and prepping the UGA kits for the unit techni-
cians to install.11 The Union therefore did not request bargain-
ing over the matter at that time.

9 Nothing in this decision prevents the Union from requesting more
specific information concerning the wages of technicians at other loca-
tions to the extent the Union believes such information remains relevant
and has not been provided to date.
10 The parties’ practice is to hold two-day bargaining sessions, with
the first day devoted to contract negotiations, and the second day split
between contract negotiations in the morning and current issues in the
afternoon.
11 There is conflicting testimony about whether Deloach specifically
stated that the temporary workers would not be doing anything but
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union did, however, ask the Company to schedule the
unit technicians so that they could work on the project. The
Union stated that they would not be able to work overtime if
the Company continued to schedule them for 14-hour shifts.
The Company said it would work with the Union to figure out
how to schedule the employees for overtime.
The Union also offered to supply the Company with tempo-
rary employees through the union hiring hall. However, the
Company said it was not interested because it did not want to
actually hire temporary employees; it wanted to utilize them
through a staffing company.
Per the usual practice, on March 23, the Company emailed a
summary of the meeting to the Union. However, the email
nowhere stated that the AppleOne temporary workers would be
doing “material handling.” Instead, the email stated that once
the unit technicians were fully utilized, the Company would
“follow past practice” and use the temporary workers “to com-
plete the needed work” (GC Exh. 5).
Several days later, on March 28, the Union emailed the
Company back. The Union stated that it was “concerned about
the circumstances which temporary help is hired,” and request-
ed “the opportunity to bargain over this change.” It also re-
quested certain related information (GC Exh. 6).
The Company did not reply. It did not believe there was any
legal obligation to bargain with the Union over utilizing the
AppleOne temporary workers, and it had already discussed
providing the unit technicians with the opportunity for over-
time.
The project began the following month. It started at one of
the casinos, Sunset Station. The Company assigned two unit
technicians, a lead and an assistant lead, to the job on a regular
basis. It also offered the other unit technicians an opportunity
to work overtime on it, and a few did so.12
However, the vast majority of the workers on the job were
AppleOne temporary employees. For example, unit technicians
Juan Robles and Shane West, who also served as union stew-
ards in the unit, testified that there were about 15–18 AppleOne
temporary workers on the job but only 3–4 unit technicians
when they worked overtime on the project in April. The Ap-
pleOne workers were installing the UGA equipment, and the
unit technicians were training or guiding them on how to do it
and troubleshooting and fixing any issues or errors. West testi-
fied that there were also at least 10 AppleOne workers but only
2 unit technicians when he worked overtime on the project in
May. (Tr. 380, 416–420.)
The Company did not notify the Union when the project be-
gan. However, the Union eventually learned of it from the unit
technicians themselves. The technicians reported that the Ap-
pleOne temporary workers were installing the UGA systems in
the casino games; that one of them was actually wearing an

unboxing and prepping the kits. Based on the record as a whole, I find
that Deloach did not specifically state this. Rather, this was simply the
Union’s understanding of Deloach’s response. See, e.g., Union Organ-
izing Director Soto’s April 21 email to HR Director Hartman (GC Exh.
8). See also fn. 2, above. However, I further find that the Union’s
understanding was reasonable under the circumstances.
12 The Company never adjusted the unit technicians’ schedules to
better enable them to work overtime on the project (Tr. 78).
IGT shirt; and that the IGT technicians were being asked to
train the temporary workers and fix their mistakes.
On April 20, the Union emailed the Company about these
reports. The Union stated that it was “very concerned that non-
skilled AppleOne techs are taking trained IGT technicians’
jobs.” The Union again requested to “bargain over this and all
other unilateral changes occurring on sites.” (GC Exh. 7.)
The Company emailed a response the following day. The
Company stated that it “has, and will continue to, utilize out-
side contractors for certain distinct projects,” and that it was
“unwilling to hire any additional employees for [the Station
Casinos UGA] project.” It also stated that it was honoring its
previous commitment to the Union to offer the unit technicians
first opportunity at overtime on the project. As for the shirts,
the Company stated that Station Casinos was requiring the Ap-
pleOne workers to wear IGT shirts so that it knows who is
working on the project. (GC Exh. 8.)
The Union and the Company continued to email each other
the rest of that day and the next, and throughout the following
month, repeating their respective positions. (GC Exhs. 8–13; R.
Exhs. 13, 14.) They also had a somewhat heated conversation
about the matter during a discussion of current issues following
their contract negotiations on May 4. The Union again com-
plained that the Company had never bargained over using the
AppleOne temporary workers. It also specifically complained
that the Company had not adjusted the unit technicians’ sched-
ules so that they could work overtime on the project. The
Company responded that “business circumstances” prevented
adjusting the technicians’ schedules at that time. The Union
also again complained about the AppleOne workers wearing
IGT shirts. The Company replied that it would provide the unit
technicians with new IGT shirts that were different than the old
IGT shirts worn by the AppleOne temporary employees. (Tr.
81–83, 298, 328–331, 373, 389, 477.)
At the end of the meeting, the Union stated that it would
submit a written proposal to the Company regarding the pro-
ject. It did so about 2 weeks later, on May 19, emailing the
Company a Letter of Understanding (LOU). Among other
things, the LOU proposed that unit work could be contracted
out only if the Union could not furnish qualified employees to
perform the work. It also proposed that, in the event the Com-
pany contracted out unit work, the Company would provide
additional training to the unit technicians to reduce the possibil-
ity of future use of contractors, and otherwise bargain with the
Union over the impact of the contacting out. (GC Exhs 14, 15;
Tr. 317, 337).
There is no record evidence that the parties ever bargained
over this proposal, however. And the Company continued
thereafter, through at least the date of the hearing, to use the
AppleOne temporary workers to install the UGA systems. The
original target date to finish the project was July 4, but that date
was “pushed out” (Tr. 167).
A. Whether the Company Unlawfully Refused to Bargain Over
the Decision to Use AppleOne Temporary Workers
An employer’s decision to contract out unit work is ordinari-
ly a mandatory subject of bargaining unless it is consistent with
past practice or relates to a change in the scope and direction of
IGT D/B/A INTERNATIONAL GAME TECHNOLOGY 9
the business. See Spurlino Materials, LLC, 353 NLRB 1198,
1218–1219 (2009), reaffd. 355 NLRB 409 (2010), enfd. 645
F.3d 870, 882–883 (7th Cir. 2011), and cases cited there. Here,
the Company does not contend that there was a change in the
scope or direction of the business. Rather, as indicated in its
responses to the Union, the Company contends that using the
AppleOne temporary workers on the Station Casinos UGA
project was consistent with past practice.
The evidence, however, fails to support the Company’s con-
tention. To establish a past practice of subcontracting justify-
ing a refusal to bargain, an employer must show that the previ-
ous subcontracting was similar in kind and degree and occurred
with such regularity and frequency that employees could rea-
sonably expect the practice to continue or recur on a regular
and consistent basis. A history of subcontracting on a random,
intermittent, or discretionary basis is insufficient. Hospital San
Cristobal, 358 NLRB 769, 772 (2012), reaffd. 363 NLRB No.
164 (2016); Ampersand Publishing, LLC, 358 NLRB 1415,
1416 (2012), reaffd. 362 NLRB No. 26 (2015); and Sociedad
Espanola de Auilio Mutuo y Beneficiencia de P.R., 342 NLRB
458, 468–469 (2004), enfd. 414 F.3d 158, 165–167 (1st Cir.
2005). See also E. I. Du Pont De Nemours, 364 NLRB No.
113 (2016) (past practice defense fails unless the employer’s
unilateral action is consistent with previous recurring unilateral
actions that were fixed as to both timing and criteria).
Here, the Company presented evidence at the hearing that
IGT had contracted with AppleOne on various projects since
2011. Specifically, IGT had used AppleOne temporary work-
ers for several years to install and remove slot machines and
other products at the annual G2E gaming show in Las Vegas.13
IGT also used AppleOne temporary workers on a job at one of
the Station Casinos properties (Sunset Station) in 2014 that
required removing and installing slot machines. In addition,
IGT’s depot department regularly used AppleOne workers for
several years to test equipment.
However, none of this previously subcontracted work was
similar in kind or degree to the Station Casinos UGA work. It
all required at most very simple wire connections, such as
plugging and unplugging gaming machines or equipment into
an electrical outlet or a testing device. See Field Services Di-
rector Deloach’s testimony, Tr. 173, 467–469 (the AppleOne
material handlers just installed and removed “slot machines”
a/k/a “EGMs” (electronic gaming machines), which did not
require installing and connecting wires, just “some connections
. . . very simple—simple as possible”).14 In contrast, as indi-

13 This included the show in late 2015, several months after the Un-
ion was certified and the Company’s bargaining obligation arose. (I
take judicial notice that the 2015 G2E show was held on Sept. 29–Oct.
1, 2015.) However, there is no evidence that the Union was ever noti-
fied that the Company would use AppleOne workers on the 2015 G2E
show, that the parties bargained over it, or that the Union agreed to it.
Deloach admitted that she did not tell the Union about it (Tr. 483).
14 Contrary to the Company’s posthearing brief (p. 8), Deloach did
not testify that the AppleOne workers removed and installed “parts” on
the 2014 Sunset Station project. As for the depot department testing
work, Deloach at one point testified that it was the “same exact work”
as the work on the UGA project (Tr. 470). However, I discredit that
cated above, the UGA project involved installing the player
tracking devices inside the gaming machines themselves. This
required retrofitting the device into the slot machine, installing
a bracket to hold it, and connecting wires between the device
and the slot machine (Tr. 470). This was significantly more
technical work, as evidenced by the fact that the unit techni-
cians had to train or guide the AppleOne “material handlers” in
performing it.
Further, there is no record evidence that the Company had
ever previously used AppleOne temporary employees to actual-
ly work alongside the unit technicians. Deloach acknowledged
that no IGT technicians worked on the 2014 Sunset Station
project (Tr. 479). She also admitted that she did not know if
any IGT technicians worked alongside the AppleOne temporary
employees at the annual G2E gaming show. She testified that
the AppleOne temporary employees start working 2 months
before the show. In contrast, she testified that the unit techni-
cians worked the show during the last week or two (the show
itself lasts only 3 days). (Tr. 484–486). She also admitted that
the depot department where the AppleOne workers perform
testing “is not part of the bargaining unit” (Tr. 478).
Indeed, Shane West, a legacy IGT unit technician, credibly
testified that he had never previously observed or heard of a
temporary worker from AppleOne or elsewhere performing unit
work in the entire 10 years he had worked for IGT (Tr. 424,
430).
The Company also argues that it had no obligation to bargain
over using the AppleOne temporary employees on the Station
Casinos UGA job because labor costs were not a factor in the
decision. However, there are two problems with this argument.
First, it is not supported by the evidence. Although both HR
Director Hartman and Deloach testified that labor costs were
not a factor, Hartman acknowledged on further examination
that there was no foundation for her testimony and that she did
not know what factors the Company considered (Tr. 113–116).
She also admitted that the AppleOne temporary employees are
paid less than the unit technicians; that even the lowest paid
unit technician is paid more than the AppleOne temporary em-
ployees (Tr. 67).
As for Deloach, she subsequently admitted that the Company
contracted with AppleOne to provide temporary workers be-
cause it did not want to go through the hiring, employment, and
licensing/regulatory compliance process (Tr. 458–461). The
Company’s posthearing brief (p. 3) argues that these are “logis-
tics.” Maybe so, but they are also labor costs. See generally
Dubuque Packing Co., 303 NLRB 386, 391 (1991) (labor costs
include both direct and indirect costs of labor), enfd. 1 F.3d 24
(D.C. Cir. 1993), cert. denied 511 U.S. 1138 (1994). See also
Electrical Workers Local 11, 217 NLRB 397, 400 (1975) (em-
ployer’s labor costs included man-hours lost training new em-
ployees and familiarizing them with employer’s equipment).
Second, even if the evidence established that labor costs
were not a factor, the Company’s argument would not be sup-
ported by Board law. An employer is not relieved from bar-
gaining over a subcontracting decision simply because labor

testimony to the extent it is inconsistent with her testimony specifically
describing the testing and the UGA work.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
costs were not a reason for the decision. Rather, the employer’s
non-labor cost reasons for the subcontracting decision must
relate to a change in the scope and direction of the business.
Overnite Transportation Co., 330 NLRB 1275, 1276 (2000),
affd. in part and reversed in part mem. 248 F.3d 1131 (3d Cir.
2000).15 Here, as indicated above, the Company does not con-
tend that the decision to use the AppleOne temporary employ-
ees on the Station Casinos UGA project related to a change in
the scope and direction of its business.
The Company also argues that no bargaining was required
because the unit technicians were offered an opportunity to
work overtime on the project, did not suffer any loss of work or
pay, and were therefore not adversely impacted in any material,
substantial, or significant way by the decision to use AppleOne
temporary employees. However, this argument fails as well. It
is not, in fact, altogether clear that no technicians lost any work
or pay. As noted by the General Counsel, West testified that he
was turned away when he arrived to work overtime on the pro-
ject in mid-May 2016 (Tr. 419–420). In any event, the Board
has held that an employer must bargain over subcontracting
decisions irrespective of whether any current unit employee lost
work or pay. See ibid (“We think it plain that the bargaining
unit is adversely affected whenever bargaining unit work is
given away to nonunit employees, regardless of whether the
work would otherwise have been performed by employees
already in the unit or by new employees who would have been
hired into the unit.”). See also Spurlino Materials, 353 NLRB
at 1219 (“[I]n the absence of subcontracting, Respondent might
have hired additional unit employees, resulting in jobs for them
and benefits for the Union and current unit employees in having
an expanded unit.”).
Finally, the Company argues that it has repeatedly made
clear to the Union that it does not want to hire new employees
on either a permanent or temporary basis. However, as indicat-
ed above, the Company’s position has little or nothing to do
with a lack of business. Indeed, Deloach testified that the Com-
pany has so much business that it “always” has overtime avail-
able, enough that “all” of its unit technicians could work over-
time “every single day, seven days a week” (Tr. 172–174). In
any event, the Company admits that it did not actually bargain
with the Union to impasse as required by the Act (Tr. 25,
121).16
Accordingly, the Company unlawfully failed or refused to
bargain with the Union over the decision to use AppleOne tem-
porary employees on the Station Casinos UGA job, as alleged.

15 The cases cited by the Company, Professional Medical Transport,
362 NLRB No. 19 (2015) and Mercy Health Partners, 358 NLRB 566
(2012), are distinguishable as they involved the relocation of unit work.
16 The Company likewise does not contend that its unilateral deci-
sion to use AppleOne temporary employees was compelled by econom-
ic exigencies or the specifications of its contract with Station Casinos.
Although Robles testified that Deloach stated at the May 4 session that
Station Casinos wanted the Company to use AppleOne temporary
workers rather than its own technicians (Tr. 389–390), this was not
corroborated by any other witness (and the Company’s posthearing
brief does not even mention it). Nor is there any documentary evidence
that Station Casinos required the Company to use AppleOne temporary
workers. The Station Casinos contract is not in evidence.
B. Whether the Company Unlawfully Failed to Provide the
Union With a Meaningful Opportunity to Bargain Over the
Effects of the Decision
An employer must bargain with the union over the effects of
a management decision, regardless of whether decision itself
was a mandatory subject of bargaining, unless the decision has
no material or substantial impact on the unit employees. See
Fresno Bee, 339 NLRB 1214 (2003), and cases cited there. As
discussed above, contrary to the Company’s contention, the
decision to use the AppleOne temporary employees on the Sta-
tion Casinos UGA project had a material and substantial impact
on the unit technicians. Thus, the Company was obligated to
bargain over the effects of the decision.
The Company also argues that, even assuming arguendo that
it had a duty to bargain over the effects of the decision to use
AppleOne temporary employees on the project, it satisfied that
obligation. In support, the Company cites its offers to provide
the unit technicians with an opportunity to work overtime on
the job and with new IGT shirts that differed from those worn
by the AppleOne workers. It also cites the Union’s failure to
make a specific proposal for adjusting their work schedules to
permit them to work more overtime.
Again, however, the Company’s argument is contrary to
Board law. Where, as here, a union is entitled to bargain over
both the decision and its effects, the employer must provide the
union a prior or contemporaneous opportunity to bargain over
the former to fully satisfy its obligation to bargain over the
latter. See Solutia, Inc., 357 NLRB 58, 65 (2011), enfd. 699
F.3d 50 (1st Cir. 2012), and cases cited there.
The Company does not challenge this rule (indeed, it does
not even acknowledge it). In any event, the rule is clearly con-
sistent with, if not compelled by, the “give and take” nature of
the statutorily mandated bargaining process.17 Bargaining over
effects may be substantially affected by bargaining over the
decision (and vice versa). An employer might well offer or
agree to more generous proposals to compensate employees for
the effects of a management decision in order to obtain the
union’s agreement or acquiescence on their behalf to the deci-
sion itself without a strike or lockout. Similarly, a union would
have more leverage in bargaining with the employer over the
effects of a management decision if it also had the right and
contemporaneous opportunity to bargain with the employer
over the decision itself.
Here, as discussed above, the Company unlawfully refused
to bargain with the Union over the decision to use AppleOne
temporary employees on the Station Casinos UGA project.
Accordingly, the Company unlawfully failed to provide the

17 See generally Steelworkers v. CCI Corp., 395 F.2d 529, 531 (10th
Cir. 1968) (“[L]abor contract negotiation bears the coercion of statute,
. . . negotiators often give and take on minor issues to supply the re-
quired continuity of bargaining and anticipatory to the main issues, and
. . . it would indeed frustrate collective bargaining if the law silently
closed a deal while the negotiator was angling for some other point.”),
cert. denied 393 U.S. 1019 (1969). See also Renegotiation Board v.
Bannercraft Clothing Co., 415 U.S. 1, 22–23 (1974) (“[N]egotiation is
a bargaining process, with give and take, and with stress upon and use
of the strengths of one’s own position and the weaknesses of the posi-
tion of the other party.”).
IGT D/B/A INTERNATIONAL GAME TECHNOLOGY 11
Union with a timely and meaningful opportunity to bargain
over the effects of that decision as well.
III. ALLEGED DIRECT DEALING AND THREAT OF LOSS
OF BENEFITS
As indicated above, the parties got into a heated conversation
about the Company’s use of the AppleOne temporary employ-
ees on the Station Casinos UGA project during a discussion of
current issues following the contract negotiations on May 4.
There was a lot of back and forth, with the Company’s attorney
and lead negotiator, Theo Gould, repeating that the Company
had offered the unit technicians overtime and was not interested
in hiring anymore employees, and Union Organizing Director
Soto repeating that the Company had failed to bargain with the
Union. Eventually, the conversation deteriorated to the point
that Gould said he did not care what Soto said or thought the
law required, and Soto stood up and said that if Gould did not
care what he had to say, the meeting was over. At that point,
Gould looked at union stewards Robles and West and said,
“Are you going to let this guy take overtime away from you,
are you going to let this guy take money out of your pock-
ets?”18
The General Counsel argues that the words and context of
Gould’s statement reveal that he was appealing to Robles and
West in their capacity as unit employees rather than union
stewards; the statement was an explicit threat that they risked
losing overtime if the Union insisted on bargaining; and the
threat was intended to persuade them to adopt a different pos-
ture than the Union. Accordingly, the General Counsel alleges
that the statement constituted both direct dealing in violation of
Section 8(a)(5) of the Act, and a threat of loss of benefits in
violation of Section 8(a)(1) of the Act.19

18 Tr. 221, 329 (Soto), 424–425 (West). Robles testified that Gould
made the statement to Soto, stating “I can’t believe you’re doing this to
your guys, you’re affecting their pay, don’t do this to your guys” (Tr.
390), or “you’re going to take money from the guys, you’re going to
take wages from them, don’t do this to your guys.” (Tr. 403). Howev-
er, I give greater weight to the testimony of Soto and West, as their
testimony was mutually corroborative and uncontradicted by the Com-
pany’s witnesses.
19 The General Counsel amended the complaint to add both allega-
tions at the beginning of the hearing. See fn. 2, above. The Company
asserts that both allegations are barred by Section 10(b) of the Act
because they are not contained in or closely related to any of the under-
lying charges filed by the Union. However, as indicated above, the
alleged unlawful statement at the heart of both allegations was made
during a discussion of, and directly related to, the Company’s obliga-
tion to bargain over the subcontracting decision and its effects, the
primary allegation in the Union’s charges. See fn. 7, above. There was
no real danger in these circumstances that the relevant evidence regard-
ing the statement would not be preserved. Accordingly, the Company’s
10(b) defense is rejected. See Columbia Portland Cement Co., 303
NLRB 880, 884 (1991), enfd. 979 F.2d 460 (6th Cir. 1992) (8(a)(5)
direct dealing allegation was closely related to 8(a)(5) unilateral change
allegations); Trim Corp. of America, 349 NLRB 608 (2007) (alleged
8(a)(1) threat of loss of employment was closely related to 8(a)(5)
withdrawal of recognition allegation); Helnick Corp., 301 NLRB 128
(1991) (alleged 8(a)(1) threat of retaliation was closely related to
8(a)(5) refusal to bargain allegation); and Overnite Transportation Co.,
296 NLRB 669 (1989), enfd. 938 F.2d 815, 820–821 (7th Cir. 1991)
However, as indicated by the Company, to constitute unlaw-
ful direct dealing a communication must be made “to the exclu-
sion of the union.” See El Paso Electric Co., 355 NLRB 544,
545 (2010), and cases cited there. Here, regardless of whether
Gould was speaking to Robles and West as employees, they
were there as union stewards and members of the bargaining
team (Tr. 404, 144). Further, the statement was made in the
presence of Union Organizing Director Soto. Thus, it plainly
was not made to the exclusion of the Union. See FMC Corp.,
290 NLRB 483, 486 (1988) (finding no unlawful direct dealing
in part because union officers were present). Accordingly, the
direct dealing allegation is dismissed.
The alleged threat that the employees would lose overtime is
a different matter. Although the statement was made at the
bargaining table, the parties were not bargaining but arguing
about whether the Company was required to bargain. Offering
overtime on the Station Casinos UGA project was not a pro-
posal at that point; the Company had already offered it to the
unit technicians. And the Union was not seeking to take the
overtime away from them, but at a minimum to make overtime
on the project more available. In this context, Gould’s state-
ment was not excusable “bluster and banter” in the give and
take of bargaining. See Medco Health Solutions of Las Vegas,
357 NLRB 170, 172 (2011) (rejecting employer’s argument
that its statements refusing to bargain were mere “bluster and
banter”), enfd. 701 F.3d 710 (D.C. Cir. 2012). Rather, as indi-
cated by the General Counsel, his statement would reasonably
have been interpreted as a threat to take away the employees’
overtime opportunities if the Union did not withdraw its right-
ful demand for bargaining. Accordingly, the statement was
unlawful. See General Trailer, Inc., 330 NLRB 1088, 1097
(2000) (employer’s statement to employee that his overtime
was being restricted or eliminated because he exercised his
right to vote for the union as his collective-bargaining repre-
sentative was an unlawful threat of reprisal).
IV. ALLEGED OVERBROAD NONDISPARAGEMENT PROVISION
The final allegation is based on the first charge filed by the
Union in late December 2015 (GC Exh. 1(a)). At that time, the
Company maintained the following provision in the Separation
Agreement and General Release that it sometimes gave to em-
ployees whose employment had been terminated:
You will not disparage or discredit IGT or any of its affiliates,
officers, directors and employees. You will forfeit any right to
receive the payments or benefits described in Section 3 if you
engage in deliberate conduct or make any public statements
detrimental to the business or reputation of IGT.
(GC Exh. 27.) The General Counsel contends that the provi-
sion violated Section 8(a)(1) of the Act because it would rea-
sonably be construed by former employees to prohibit them
from engaging in conduct protected by the Act, including filing
charges with the Board, communicating with current employees
to seek their support for charges or claims, and assisting current
employees in their charges, claims, or concerns.

(alleged preelection 8(a)(1) threats not to bargain in good faith were
closely related to 8(a)(5) bad-faith bargaining allegation).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The allegation is well supported by Board precedent. See
Pratt (Corrugated Logistics), LLC, 360 NLRB 304 (2014)
(nondisparagement provision in severance agreement that em-
ployer gave to unlawfully laid off employees was unlawfully
overbroad to the extent it prohibited them from engaging in
conduct that “disparages, criticizes . . . or otherwise casts a
negative characterization upon” the company); and Quicken
Loans, Inc., 359 NLRB 1201, 1201 fn. 3 (2013), reaffd. 361
NLRB 904, 904 fn. 1 (2014) (nondisparagement provision in
employer’s employment agreement stating that employees will
not “publicly criticize, ridicule, disparage or defame” the com-
pany was unlawfully overbroad).
Nevertheless, the Company argues that no violation may be
found because it is undisputed that the separation agreement
was not given to employees until after their employment was
terminated, rather than before or during their employment, and
there is no evidence that it was ever given to any former em-
ployee who was unlawfully terminated. The Company argues
that only current employees or employees who have been un-
lawfully terminated are protected under the Act. See, e.g., Br.
at 39 fn. 31 (“For purposes of the law, a former employee who
has lawfully separated from the company has no different status
than any other third party in the marketplace”). However, the
Board has repeatedly held that the term “employee” as defined
in Sec. 2(3) of the Act includes former employees even if they
were not unlawfully terminated. See Employer’s Resource, 363
NLRB No. 59, (2015), enf. denied on other grounds per curiam
2016 WL 6471215 (5th Cir. 2016); and Fuji Food Products,
Inc., 363 NLRB No. 118 (2016), and cases cited there. The
argument is therefore rejected.
The Company also argues that no violation should be found
because it is undisputed that the provision was revised effective
January 25, 2016, approximately a month after the Union filed
the charge, to conform to Board law.20 However, the Company
does not contend that it fully repudiated its prior maintenance
of the overbroad provision in the manner required to warrant or
justify withholding a remedy and order. See Passavant Memo-
rial Area Hospital, 237 NLRB 138 (1978). See also Ark Las
Vegas Restaurant Corp. v. NLRB, 334 F.3d 99, 108 (D.C. Cir.
2003), and cases cited there. This argument is therefore like-
wise rejected.
Accordingly, by maintaining the overbroad nondisparage-
ment provision in its separation agreement prior to January 25,
2016, the Company violated the Act as alleged.
CONCLUSIONS OF LAW
1. The Company has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act by
(a) Failing or refusing to provide the Union on request with
a list of all Company locations in the U.S.
(b) Failing or refusing to provide the Union with a meaning-
ful opportunity to bargain over the Company’s decision to use
AppleOne temporary employees on the Station Casinos UGA

20 See R. Exh. 20. The General Counsel’s posthearing brief (p. 32)
acknowledges that the revised provision conforms to the requirements
of the Act.
project and the effects of that decision on the unit technicians.
2. The Company has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act by:
(a) Threatening the unit technicians with loss of overtime
because the Union sought to bargain on their behalf over the
Company’s use of AppleOne temporary employees on the Sta-
tion Casinos UGA project.
(b) Maintaining an overbroad nondisparagement provision
in its Separation Agreement and General Release.
3. The Company did not otherwise violate the Act as alleged
in the complaint.
REMEDY
The appropriate remedy for the foregoing violations is an or-
der requiring the Company to cease and desist and to take cer-
tain affirmative action. As requested by the General Counsel,
this properly includes a requirement that the Company cease
using the AppleOne temporary employees on the Station Casi-
nos UGA project, in the event it has not yet been completed,
and that the Company make the unit technicians whole for any
loss of pay or benefits they may have suffered as a result of its
unlawful unilateral decision to use the temporary workers.21
Any backpay due shall be computed in the manner prescribed
in Ogle Protection Service, 183 NLRB 682 (1970), with inter-
est compounded daily as prescribed in New Horizons, 283
NLRB 1173 (1987) and Kentucky River Medical Center, 356
NLRB 6 (2010). The Company shall also be required to com-
pensate the unit technicians for the adverse tax consequences, if
any, of receiving a lump sum backpay award, and to file with
the Regional Director a report allocating the backpay to the
appropriate calendar year(s). See Advoserv of New Jersey, Inc.,
363 NLRB No. 143 (2016).
ORDER22
The Respondent, IGT, d/b/a International Game Technology,
Las Vegas, Nevada, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing or refusing to furnish International Union of Op-
erating Engineers Local Union 501, AFL–CIO with requested
information that is relevant and necessary to its role as the ex-
clusive collective-bargaining representative of the full-time and
regular part-time technicians in the bargaining unit.
(b) Unilaterally subcontracting the work of the unit techni-
cians without affording the Union prior notice and a meaningful
opportunity to bargain over the decision and its effects until
either an agreement or bona fide impasse has been reached.

21 As discussed above, it is not clear that no technicians lost any
work opportunities on the project. A make whole order is therefore
warranted so that the appropriate backpay remedy, if any, may be con-
sidered and determined at the compliance stage. See Overnite Trans-
portation, 330 NLRB at 1276.
22 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.
IGT D/B/A INTERNATIONAL GAME TECHNOLOGY 13
(c) Threatening the unit technicians with loss of overtime or
other benefits if the Union requests to bargain on their behalf
over subcontracting their work or other terms and conditions of
their employment.
(d) Maintaining overbroad nondisparagement or other provi-
sions that would reasonably be interpreted by employees to
prohibit them from engaging in protected concerted activity.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Provide the Union with a list of all Company locations in
the U.S.
(b) Cease using AppleOne temporary employees to perform
unit technician work on the Station Casinos UGA project, in the
event it has not yet been completed, until such time as the Un-
ion has been afforded a meaningful opportunity to bargain to an
agreement or bona fide impasse over the use of such temporary
contract employees on the project and its effects on the unit.
(c) Make whole the unit technicians for any loss of pay or
benefits resulting from its unlawful unilateral decision to use
AppleOne temporary employees to perform unit work on the
Station Casinos UGA project.
(d) Compensate the affected employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 28 within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
award to the appropriate calendar year for each employee.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Notify all former employees who were given the Separa-
tion Agreement and General Release containing the unlawfully
overbroad nondisparagement provision that the provision has
been revised, and provide them with a copy of the revised pro-
vision.
(g) Within 14 days after service by the Region, post at its
facility in Las Vegas, Nevada, copies of the attached notice
marked “Appendix”.23 Copies of the notice, on forms provided
by the Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as

23 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.”
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since June 30, 2015.
(h) 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., November 15, 2016
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 no-
tice.
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.
WE WILL NOT refuse to provide International Union of Oper-
ating Engineers Local Union 501, AFL–CIO, with information
that is relevant and necessary to its role as the collective-
bargaining representative of our full-time and regular part-time
technicians.
WE WILL NOT subcontract the work of our technicians with-
out affording the Union prior notice and a meaningful oppor-
tunity to bargain over the decision and its effects until either an
agreement or bona fide impasse has been reached.
WE WILL NOT threaten our technicians with loss of overtime
or other benefits if the Union requests to bargain on their behalf
over subcontracting their work or other terms and conditions of
their employment.
WE WILL NOT maintain overbroad nondisparagement or other
provisions that would reasonably be interpreted to prohibit you
from exercising your rights under Federal labor law.
WE WILL NOT in any like or related manner interfere with
your rights under Federal labor law.
WE WILL cease using AppleOne temporary employees to per-
form the work of our unit technicians on the Station Casinos
UGA project until such time as the Union has been afforded a
meaningful opportunity to bargain to an agreement or bona fide
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
impasse over the use of such temporary contract employees on
the project and its effects on the unit.
WE WILL make whole our unit technicians for any loss of pay
or benefits resulting from our unlawful unilateral decision to
use AppleOne temporary employees to perform unit work on
the Station Casinos UGA project.
WE WILL compensate affected employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 28 within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
award to the appropriate calendar year for each employee.
WE HAVE revised the unlawfully overbroad non-
disparagement provision in our “Separation Agreement and
General Release,” and WE WILL notify all former employees
who were given the Separation Agreement and General Release
containing the unlawfully overbroad nondisparagement provi-
sion that the provision has been revised, and provide them with
a copy of the revised provision.
IGT D/B/A INTERNATIONAL GAME TECHNOLOGY
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28-CA-166915 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.