Trump Plaza Hotel & Casino

National Labor Relations Board - Board Decisions

Apr 22, 1993

310 N.L.R.B. 1162 (N.L.R.B. 1993)

1162
310 198NLRB No. 197
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On July 23, 1992, Administrative Law Judge Claude R. Wolfe
issued the attached decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed cross-exceptions, a
supporting brief, and an answering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 adopting the judge’s finding that Supervisor Marian Woerner
engaged in unlawful surveillance of employee Mitchell Goldstein,
we find that this issue was fully litigated at the hearing although not
specifically alleged in the complaint.
3 The phrase ‘‘sweating money’’ refers to supervisory harassment
of a dealer because the dealer’s gaming station is losing money.
4 The judge credited Velardo’s testimony that he had in fact so in-
structed the supervisors as early as May 1991.
5 In light of this finding, we find it unnecessary to pass on the re-
maining complaint allegations regarding the Respondent’s August
1991 meeting with employees. These allegations concerned alleged
promises to rectify other perceived problems. The allegations are
therefore cumulative.
Trump Plaza Associates d/b/a Trump Plaza Hotel
and Casino and Sports Arena and Casino Em-
ployees Union Local 137, a/w Laborers’ Inter-
national Union of North America, AFL–CIO.
Cases 4–CA–20079 and 4–RC–17676
April 22, 1993
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions and cross-exceptions filed to the judge’s
decision in this case present the issues of whether the
Respondent in the context of a union organizing cam-
paign: solicited employee grievances with the implied
promise of rectifying them; unlawfully applied its no-
solicitation/distribution rule; interrogated an employee
concerning his union activities; engaged in surveillance
of union activity; and granted wage benefits in order
to influence the outcome of the pending representation
election.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as modified and to adopt the recommended
Order as modified and set forth in full below.
The General Counsel excepts, inter alia, to the
judge’s failure to find that the Respondent unlawfully
solicited grievances and unlawfully promised to re-
solve them in a series of meetings held in late August
1991.
The credited evidence establishes that at one of
these meetings a blackjack dealer complained about a
supervisory practice known as ‘‘sweating money.’’3
William Velardo, the Respondent’s senior vice presi-
dent of casino operations, responded that he would not
tolerate ‘‘sweating money’’ and, if such a practice was
brought to his attention and found to exist, the of-
fender would be discharged. Velardo further stated that
he had previously told supervisors that he would not
tolerate ‘‘sweating money.’’4
The judge found that neither Velardo’s statement of
a previously existing lawful policy nor his request that
employees cooperate in the enforcement of the policy
by reporting infractions conveyed any unlawful prom-
ise or otherwise violated the Act. We disagree.
The record contains no evidence that this policy had
ever been communicated to employees prior to this
meeting or that this policy had ever been enforced. At
the meeting, the Respondent informed employees of
the policy, invited them to assist in its enforcement,
and promised harsh punishment for violations of the
policy. Under these circumstances, Velardo’s state-
ments, made in response to employee complaints at a
meeting to discuss the Union’s organizing campaign,
committed the Respondent to specific corrective action.
The Respondent thereby violated Section 8(a)(1) and
interfered with the employees’ freedom of choice in
the election. See Reliance Electric Co., 191 NLRB 44
(1971).5
ORDER
The National Labor Relations Board orders that the
Respondent, Trump Plaza Associates d/b/a Trump
Plaza Hotel and Casino, Atlantic City, New Jersey, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promising to remedy employee grievances in
order to influence the outcome of a pending represen-
tation election.
(b) Maintaining and enforcing a rule prohibiting off-
duty employees from distributing union literature in
nonworking areas where there is no justifiable business
reason therefor.
(c) Monitoring the union activity of an employee.
(d) Removing prounion literature from nonwork
areas while permitting antiunion literature distributed
by employees to remain in the areas.
(e) Refusing to permit an employee to place
prounion literature in a work area where the placement
of antiunion literature by employees was tolerated.
(f) Interrogating an employee concerning where he
was going to engage in union activities.
(g) Granting retroactive holiday pay to employees
during the pendency of a representation election for the
purposes of discouraging union support and inducing
the employees to vote against the Union.
1163TRUMP PLAZA HOTEL & CASINO
6 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 All dates are 1991 except where otherwise noted.
2 At trial General Counsel offered pp. 2 through 5 of a position
letter submitted by Respondent’s counsel on October 8, 1991. The
document was marked as G.C. Exh. 36, rejected, and placed in the
rejected exhibits file. On reconsideration, I am persuaded it was
error to reject G.C. Exh. 36 which contains statements arguably ma-
terial to issues before me. Accordingly, that exhibit is received in
evidence. Massillon Community Hospital, 282 NLRB 675 fn. 5
(1987); Optica Lee Borinquen, Inc., 307 NLRB 705 fn. 6 (1992).
(h) 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
effectuate the policies of the Act.
(a) Post at its Atlantic City, New Jersey facility cop-
ies of the attached notice marked ‘‘Appendix.’’6 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the election in Case 4–
RC–17676 is set aside and that Case 4–RC–17676 is
remanded to the Regional Director for Region 4 for the
purpose of conducting a new election pursuant to the
following direction.
[Direction of Second Election omitted from publica-
tion.]
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discourage membership in Sports
Arena and Casino Employees Union Local 137, a/w
Laborers’ International Union of North America, AFL–
CIO or any other labor organization, by granting you
backpay or other benefits in order to encourage you to
vote against a union.
WE WILL NOT solicit employee grievances with the
implied promise of rectifying them in order to encour-
age you to vote against a union.
WE WILL NOT maintain or enforce any rule prohib-
iting off-duty employees from distributing union lit-
erature in nonworking areas where there is no justifi-
able business reason therefor.
WE WILL NOT engage in surveillance of your union
activity.
WE WILL NOT disparately enforce any rule con-
cerning the distribution or posting of literature against
employees engaged in union activity.
WE WILL NOT interrogate you concerning your union
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Na-
tional Labor Relations Act.
Barbara O’Neill and Juditra Burgess, Esqs., for the General
Counsel.
Deborah G. Pitcher, Esq. and Peter S. Pantaleo, Esq.
(Pantaleo & Lapkin), of Washington, D.C., for the Re-
spondent.
David Seliger, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This con-
solidated proceeding was litigated before me at Philadelphia,
Pennsylvania, on April 6, 7, and 8, 1992, pursuant to charges
filed against Respondent by the Union on September 17 and
amended on November 12 and December 5, 1991,1 com-
plaint issued on December 5 and subsequently amended, and
a report on objections to election issued on March 31, 1992.
It is alleged in the amended complaint that Respondent in
several ways violated Section 8(a)(1) of the National Labor
Relations Act (the Act) and violated Section 8(a)(3) by a ret-
roactive holiday backpay grant. The objections to the election
are based on unfair labor practices alleged in the complaint.
Respondent denies it committed any of the alleged violations
of the Act or objectionable conduct with respect to the elec-
tion in Case 4–RC–17676.
On the entire record,2 and after considering the testimonial
demeanor of the witnesses and the posttrial briefs filed by
the parties, I make the following
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Marian Woerner’s name is spelled as corrected by Respondent.
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
Respondent is, and has been at all times material to this
proceeding, a New Jersey general partnership operating a
hotel and casino in Atlantic City, New Jersey. Respondent
derived gross revenues in excess of $500,000 from the oper-
ations during the year preceding the issuance of the com-
plaint and, during the same period, purchased and received
goods valued in excess of $50,000 directly from points out-
side the State of New Jersey. Respondent has been at all
times material to this proceeding an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE UNION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. SUPERVISORS AND AGENTS
The complaint, as amended, alleges as follows:
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Kevin DeSanctis—President and Chief Operating Of-
ficer
William Velardo—Senior Vice President of Casino
Operations
Marie Haggerty—Vice President of Human Re-
sources
George Papanier—Director of Finance
Craig Keyser—Director of Industrial Relations
Jose Casteneda—Casino Manager
William Bradshaw—Senior Casino Game Shift Man-
ager
Dante Benevenuto—Pit Manager
Frank Shapiro—Pit Manager
Marian Woerner3—Pit Manager
Thomas Sparks—Director of Security
Respondent admits that the named persons, except Jose
Casteneda who resigned as casino manager on September 29,
1991, had the job titles set forth after their names and were
Respondent’s employees at all times material to the com-
plaint. Respondent neither admits nor denies in its answers
to the complaint and complaint amendments that these per-
sons were supervisors within the meaning of Section 2(11)
of the Act and/or agents of Respondent within the meaning
of Section 2(13) of the Act.
Section 102.20 of the Board’s Rules and Regulations pro-
vides as follows:
All allegations in the complaint, if no answer is filed,
or any allegation in the complaint not specifically de-
nied or explained in an answer filed, unless the re-
spondent shall state in the answer that he is without
knowledge, shall be deemed to be admitted to be true
and shall be so found by the Board, unless good cause
to the contrary is shown.
Respondent has not specifically denied, explained, or claimed
lack of knowledge in its answers. In the absence of a show-
ing of good cause to the contrary, the allegations that the
above-named persons were, at all times material to this pro-
ceeding, supervisors and agents of Respondent within the
meaning of Section 2(11) and (13) of the Act are deemed ad-
mitted and are found to be true.
IV. CONTEXT, CREDIBILITY, AND ALLEGATIONS
A. Context
The allegations of unfair labor practices and conduct af-
fecting the results of a representation election set forth in the
complaint in Case 4–CA–20079 and the Regional Director
for the Board’s Region 4 in his report on objections in Case
4–RC–17676 are alleged to have taken place in July, August,
and September 1991 during a period of union efforts to orga-
nize certain of Respondent’s employees, and the filing and
processing of the petition for a representation election in
Case 4–RC–17676 and charges in Case 4–CA–20079. A
brief description of these activities is sufficient to dem-
onstrate the general chronological context within which the
matters at issue should be considered.
Union organizing at Respondent’s facility described above
began with a meeting between the Union and Mitchell Gold-
stein, a full-time blackjack, craps, and roulette dealer at Re-
spondent’s casino, in May 1991. After discussing the possi-
bilities of union representation with union representatives,
Goldstein, brought other employees to meet with the union
agents and thereafter wrote and distributed prounion lit-
erature at the casino and passed out cards authorizing the
Union to represent the signatory employees. Goldstein esti-
mates he distributed about 40 or 50 different items totaling
some 400 or 500 copies. He clearly was the most active and
publicly conspicuous union activist during the period in-
volved in this proceeding.
On July 17, the Union filed a petition with the Board’s
Region 4 in Case 4–RC–17676 seeking certification in a unit
of Respondent’s employees including full and regular part-
time dealers at the casino, and excluding, among others,
‘‘dual rate employees.’’ On August 1, the Union filed an
amended petition enlarging the unit of employees sought to
include full and regular part-time dealers and ‘‘dual rated
dealers.’’ On the same day, August 1, Respondent and the
Union executed a Stipulated Election Agreement, subse-
quently approved by the Regional Director on August 8, set-
ting a representation election for September 20 and 21 in a
unit of ‘‘All full-time and regular part-time dealers and dual-
rated dealers employed at [Respondent’s] Atlantic City Ca-
sino.’’
On September 17, the Union filed unfair labor practice
charges against Respondent in Case 4–CA–20079.
The election in Case 4–RC–17676 was conducted, as
agreed, on September 20 and 21, but the ballots were im-
pounded because the unfair labor practice charges had been
filed on September 17. Amended and second amended
charges were filed by the Union in Case 4–CA–20079 on
1165TRUMP PLAZA HOTEL & CASINO
4 At trial counsel for the Union made it clear that the Union was
only pressing objections to the conduct of the election which were
also alleged as unfair labor practices in the amended complaint be-
fore me.
5 The phrase ‘‘sweating money’’ refers to supervisory harassment
of a dealer because the dealer’s gaming station is losing money.
November 12 and December 5, respectively. The complaint
in Case 4–CA–20079 issued on December 5 and was amend-
ed on March 27, 1992. On March 9, 1992, the Union filed
a request to proceed in Case 4–RC–17676 and, therefore, the
ballots were opened and counted on March 24, 1992, show-
ing 266 votes for the Union and 287 against, with 2 chal-
lenged ballots which were insufficient to affect the results of
the election. The Union then filed objections to conduct af-
fecting the results of the election on March 26, 1992. As pre-
viously noted, the Regional Director issued his Report on
Objections to Election and Notice of Hearing on March 31,
1992. The objections in Case 4–RC–17676 involve conduct
alleged to be unfair labor practices in Case 4–CA–20079 and
the two cases were therefore consolidated on April 1, 1992,
for purposes of hearing.4
B. Credibility
In comparing testimony on critical events, I have noted
circumlocutions, evasiveness, failures of recall, certainty or
lack of it, failures to directly meet opposing testimony, pos-
sible embellishment of the facts, and comparative testimonial
demeanor of the witnesses in terms of apparent candor and
general believability, as well as the fact some testimony was
adduced by leading questions on direct examination which
reduces its evidentiary worth. See, e.g., H. C. Thomson, 230
NLRB 808, 809 fn. 2 (1977). The fact that some witnesses
were testifying contrary to the interests of their current em-
ployer and thus were not likely to have been deliberately fab-
ricating that testimony because they were, in effect, testifying
against their own interest by contradicting those who control
their future employment has been noted. See, e.g., Uarco In-
dustries, 197 NLRB 489, 491 (1972). I have also credited
parts of certain witnesses’ testimony although rejecting other
portions. This is neither unusual nor improper, NLRB v. Uni-
versal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950). In
some instances I have concluded that witnesses were hon-
estly testifying to what they believed another meant rather
than testifying to what was actually said, a not uncommon
phenomenon, and that these perceptions have, over time, rip-
ened into mistaken certainty concerning the words used.
C. Alleged Unfair Labor Practices
The alleged violations of the Act are dealt with seriatim
in the order they appear in the amended complaint.
Paragraph 5. On or about August 20, 1991, in meet-
ings with employees at the Hotel/Casino, the Respond-
ent, acting through William Velardo, (a) solicited its
employees complaints and grievances, thereby prom-
ising them improved terms and conditions of employ-
ment in order to discourage them from selecting the
Union as their bargaining representative; (b) promised
to resolve an employee’s complaint concerning Pit
Bosses ‘‘sweating money’’ in order to discourage the
employees from selecting the Union as their bargaining
representative; and (c) promised to provide employees
with better scheduling arrangements in order to discour-
age the employees from selecting the union as their bar-
gaining representative.
In the latter part of August and early September Velardo
held a series of small group meetings with employees for the
purpose, according to Velardo, of discussing the con-
sequences of unionization and providing employees with in-
formation they needed to know about it. Notwithstanding that
this may have been Velardo’s intention, the employees seized
on the opportunities presented by these meetings to air their
personal complaints about their current working conditions
and benefits. Velardo recalls, consistent with the recollec-
tions of employees Lisa Buttari, Louis Monroe, and Nat
Prattico, each of whom attended a different small group
meeting, that there was discussion of mistreatment by super-
visors including ‘‘sweating money,’’5 scheduling, commu-
nications with management, and pay scales. Velardo credibly
testified that he did not ask the employees to voice their
problems, and that the employees spontaneously raised their
complaints. He did, however, although unexpectedly, furnish
the forum for these questions and, although I find he did not
elicit questions of the nature raised, he honored the questions
by speaking to them rather than declining to comment and
thereby encouraged employees to continue to express their
concerns. At the time of these meetings the Respondent and
the Union had executed the stipulation for a representation
election. The rule to be followed in evaluating whether Re-
spondent made unlawful promises after soliciting employee
complaints and grievances has been succinctly set forth in
Uarco, Inc., 216 NLRB 1, 1–2 (1974), as follows:
[T]he solicitation of grievances at preelection meetings
carries with it an inference that an employer is implic-
itly promising to correct those inequities it discovers as
a result of its inquiries. Thus, the Board has found un-
lawful interference with employee rights by an employ-
er’s solicitation of grievances during an organizational
campaign although the employer merely stated it would
look into or review the problem but did not commit
itself to specific corrective action: the Board reasoned
that employees would tend to anticipate improved con-
ditions of employment which might make union rep-
resentation unnecessary. However, it is not the solicita-
tion of grievances itself that is coercive and violative of
Section 8(a)(1), but the promise to correct grievances or
a concurrent interrogation or polling about union sym-
pathies that is unlawful; the solicitation of grievances
merely raises an inference that the employer is making
such a promise, which inference is rebuttable by the
employer.
Louis Monroe credibly recalls that a blackjack dealer com-
plained about supervisors ‘‘sweating money’’ and harassing
dealers, to which Velardo responded that he would not tol-
erate ‘‘sweating money’’ and, if brought to his attention, the
offender would be discharged. Nat Prattico remembers
Velardo stating he did not want anyone sweating money.
Velardo agrees that he did tell the employees that he wanted
to know if there was any further sweating of money. I credit
Velardo that he also told them that he had already told super-
1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 In assessing the various allegations of violations of Sec. 8(a)(1)
of the Act, I have in each instance applied the reasonable tendency
rule which has long been the established test for such allegations.
See, e.g., G. H. Hess, Inc., 82 NLRB 463 fn. 3 (1949), and Waco,
Inc., 273 NLRB 746, 748 (1984).
7 Compare Radio Broadcasting Co., 277 NLRB 1112, 1113
(1985); Kinder-Care Learning Centers, 284 NLRB 509, 516 (1987),
where the employer’s comments were not mere responses to em-
ployee questions.
visors that he would not tolerate ‘‘sweating money,’’ and
further credit him that he had in fact as early as late May
instructed supervisors that ‘‘sweating money’’ was unaccept-
able. I am persuaded that all Velardo did with respect to the
‘‘sweating money’’ issue was advise the employees who
raised the issue that existing policy prohibited ‘‘sweating
money,’’ would be enforced against supervisors found to be
engaged in such a practice, that supervisors had been so in-
structed, and that any such harassment should be reported to
him. The statement of an existing policy not shown to have
been adopted for reasons prohibited by the Act had no rea-
sonable tendency to interfere with, restrain, or coerce em-
ployees in the exercise of rights guaranteed by Section 7 of
the Act and does not violate the Act,6 nor does the request
that employees cooperate in the enforcement of this policy
by reporting infractions thereof convey any unlawful promise
or otherwise violate the Act.
Buttari, Monroe, and Prattico all testify that Velardo re-
sponded to employee questions concerning scheduling prob-
lems. Prattico recalls Velardo saying he would look into it
and see if employees could be more effectively scheduled.
Monroe remembers Velardo saying he would check into the
scheduling and was planning on changing the scheduling in
any event. According to Buttari, Velardo said scheduling had
to be examined. Velardo testified that during the meetings he
told employees there might be a creative way of addressing
scheduling problems, but he could not do that during the em-
ployee campaign. Velardo is credited that he so told employ-
ees at some time during the several meetings held, but the
three employees are also credited that Velardo made the
statements they report at meetings they attended. The com-
ments of Velardo that he would look into, check into, and/or
examine the scheduling are noncommittal, do not convey a
promise to adjust scheduling in a way either responsive to
employees’ expressed dissatisfaction or favorable to employ-
ees, and do not violate the Act.7
With respect to the general allegation that Velardo solic-
ited and promised to remedy employee complaints and griev-
ances, I find he did not so solicit or promise. At most, he
inadvertently provided a forum where employees, contrary to
his expectations, raised issues concerning wages, hours, and
conditions of employment, and arguably encouraged them to
continue in this manner by not terminating the meeting, by
responding in the manner described above, and failing to ef-
fectively redirect their attention to the original purpose of the
meeting. Nevertheless, I am not persuaded this acquiescence
in the employee takeover of the subject matter of the meeting
rises to the level of an unfair labor practice, and I shall rec-
ommend all the allegations raised in paragraph 5 of the com-
plaint be dismissed.
Paragraph 6. On or about September 9, 10, and 11,
1991, the Respondent, acting through William Velardo
and Craig Keyser, in meetings with employees at the
Hotel/Casino: (a) threatened to institute a no-tipping
policy for its employees if they selected the Union as
their bargaining representative; and (b) threatened to
discontinue the Respondent’s practice of allowing part-
time employees to ‘‘pick up days’’ from full-time em-
ployees.
Here the General Counsel relies on the testimony of em-
ployees Monroe, Buttari, and Hilyard concerning item (a)
which is based on statements by Craig Keyser, Respondent’s
manager of industrial relations at the time, made at the first
of a series of three large group meetings conducted by
Velardo and Keyser on September 9–11. Keyser utilized a
prepared text in addressing the employees. Louis Monroe tes-
tified:
A. Well, he was explaining to us how collective bar-
gaining worked and that once we entered into negotia-
tions, that we relatively would walk in there with a
blank piece of paper. All of our benefits, sick pay,
health benefits, everything would be obliterated. We
would no longer have none of this. We’d have to nego-
tiate for it.
And he went on to say that, you know, if the union
did come in, that they could post a no tipping policy,
and that was like a very hard hit blow, and I intervened
and told him that he couldn’t do it, and he said he
could, and we went back and forth and—for a little
while, and it ended like that, and then he went on and
continued his presentation. John Hilyard testified as fol-
lows:
A. [Keyser] explained to us that if the union was
brought in, how they would have to sit down and they
would back and forth negotiate different things that
would be included in the contract.
One of the statements that he made was that if the
union had been voted in and was recognized as our bar-
gaining agent, that they would take the stance of having
a no tipping policy, negotiate that clause.
JUDGE WOLFE: Who would—who would take the
stance of no tipping?
THE WITNESS: Management.
By Ms. Burgess:
Q. Did Mr. Keyser appear to be reading from a text?
A. Yes.
Lisa Buttari testified:
Craig Keyser got up and he’s reading off his list
about during negotiations we start out with a blank
piece of paper and we may end up with less than what
we have now. He didn’t mention the fact that we may
end up with more. And he also mentioned that our
tokes may be taken away from us.
And then Louis Monroe said that that was a lie and
Bill Velardo said please do not interrupt during this
meeting. All questions will be answered at the end of
the meeting.
According to Keyser, he never deviated from reading his
prepared speech except for the brief exchange with Louis
1167TRUMP PLAZA HOTEL & CASINO
8 ‘‘Tokes’’ is used by the casino personnel including management
as a synonym for money tips received from customers and shared
in by all employees in proportion to their hours worked. This can
amount to considerably more than 50 percent of their total income.
9 The statement in brackets supplied by was eliminated after the
first speech on September 9 and not repeated at the succeeding meet-
ings, during which Velardo told employees that Keyser had made the
statement only to emphasize the possible scope of negotiations.
Velardo also told the employees the idea of no tipping was absurd,
casinos could not exist without it. Velardo explains he did so be-
cause Keyser’s statement at the first meeting caused a hostile reac-
tion from the employees.
10 Arch Beverage Corp., 140 NLRB 1385 (1963).
11 ‘‘She’’ refers to counsel for the General Counsel.
12 Blue Flash Express, 109 NLRB 591 (1954).
Monroe concerning his remark about tokes.8 The testimony
of Buttari and Monroe that Keyser referred to a blank piece
of paper, together with the testimony of Nat Prattico, that
Keyser said negotiations started with a blank page and the
fact that the prepared presentation contains no reference to
a blank page or piece of paper, suggests that Keyser may
have deviated from his text and made some such statement.
Weighing this possibility against Keyser’s apparent candor
when he testified that his only deviation was the Monroe in-
cident, the fact that Hilyard, who attended the same meeting,
gave no testimony concerning a blank page or piece of
paper, the agreement of Buttari and Hilyard that Keyser read
from a prepared text, and the absence of any apparent reason
for Keyser to deviate from a carefully prepared statement ex-
cept when challenged by Monroe, I am persuaded that the
evidence does not preponderate in favor of a conclusion that
he made the blank-page or piece-of-paper statement. Keyser
was a believable witness when he testified that he did not
deviate other than in the one instance and this testimony is
credited. Moreover, the complaint neither originally or as
amended alleges Respondent violated the Act by referring to
a blank page, blank piece of paper, nor anything similar. For
the foregoing reasons the contention in General Counsel’s
brief that Respondent violated the Act by making such state-
ments is rejected.
The overall message in the prepared speech delivered by
Keyser is that all terms and conditions of employment are
subject to good-faith negotiation, and that any union claims
to the contrary are untrue. In that context, the written speech
states:
We may make a proposal on any issue we feel appro-
priate. So, we could propose:
• a reduction in benefits
• a cut in pay
• elimination of such pay
[• we could even propose to estimate tokes9]
I am not saying we would do any of these things. I am
saying that we certainly have the right to propose such
things and if we did, you could lose something you al-
ready have. Again, when the union tells you that you
can’t lose there [sic] are either lying or don’t know any
better. Either way, you should not vote for them.
This is what Keyser read to the employees and it does not,
standing alone, constitute a threat to institute a no-tipping
policy if employees select union representation, nor does it
constitute such a threat when viewed in context with the rest
of the speech as it properly should be.10 Furthermore, the
testimony of Buttari and Hilyard reflects that they understood
Keyser to be saying that the toke system was subject to ne-
gotiations in a collective-bargaining context. This does not
support any inference that might be drawn from Monroe’s
testimony that Keyser fairly implied Respondent could,
would, or might unilaterally cancel the tipping system. I
draw no such inference, and the allegation that Respondent
threatened to retaliate against the selection of union represen-
tation by abolishing tokes is dismissed.
The allegation in section (b) of paragraph 6 is based on
the testimony of Nat Prattico, a part-time dealer who admits
to faulty recollection, that at a subsequent meeting ‘‘there
was something said about—now that she11 brought it up,
there was—there was a discussion of—that if the union was
voted in, at one point, that they may not allow full time—
part time dealers to pick up days from full time dealers
. . . .’’ He cannot remember who said this, but says it was
either Velardo or Keyser. This testimony is ambiguous,
clearly uncertain, elicited by a leading question, and not im-
pressive. Velardo’s bare denial that neither he nor Keyser
made any reference to part-time dealers at any of the three
group meetings on September 9–11 is as credible as
Prattico’s uncertain recollection, there is nothing to choose
from in terms of comparative demeanor on this subject and
General Counsel has not shown by a preponderance of the
evidence that the alleged threat was made. The allegation is
therefore dismissed.12
7. During the period from July 17, 1991, to Sep-
tember 20, 1991, the Respondent interfered with em-
ployees’ distribution of Union literature by engaging in
the following acts and conduct:
(a) Acting through Dante Benevenuto . . . refused to
allow Union literature in the pits while permitting anti-
Union literature to remain in the pits.
(b) On or about September 3, 1991, acting through
Frank Shapiro (i) followed an employee who was dis-
tributing Union literature in the dealers’ lounge; (ii) re-
moved Union literature left by the employee in the
dealers’ lounge; (iii) removed Union literature from the
bulletin board in the dealers’ lounge while permitting
anti-Union literature to remain in the dealers’ lounge;
and (iv) interrogated an employee concerning the em-
ployee’s Union activities.
(c) In early September, 1991, a more precise date
being presently unknown to the General Counsel, acting
through Marian Warner, removed Union literature from
the dealers’ lounge while permitting anti-Union lit-
erature to remain in the dealers’ lounge.
(d) About September 3, 1991, at the employee en-
trance to the Hotel/Casino on Columbus Avenue, be-
tween 6:00 and 7:00 p.m., Respondent, acting through
Thomas Sparks, directed an employee who was on the
sidewalk near the employee entrance to the
Hotel/Casino to cease distributing Union literature on
the Respondent’s property.
(e) About September 10, 1991, at the employee en-
trance to the Hotel/Casino on Columbus Avenue, be-
tween 6:00 and 7:00 p.m., Respondent, acting through
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Contrary to Respondent’s argument in its posttrial brief, Gold-
stein did identify the document as a ‘‘Raw Deal’’ item. See Tr. pp.
127–128.
14 The parties agree Woerner is misspelled in the complaint.
15 The exact day is uncertain. Goldstein thinks it was September
2 or 3. Shapiro states this cannot be because he was on vacation that
week. Neither Shapiro nor Woerner hazards a guess as to when the
incidents in question took place. I find they took place during the
preelection period after the August 8 approval of the election agree-
ment because the notice which drew Goldstein’s attention and in-
spired his distribution of literature on the day he met with Shapiro
and Woerner urges employees to vote no.
a Respondent security guard whose name is presently
unknown to the General Counsel, directed two employ-
ees to cease distributing Union literature on the Re-
spondent’s property.
(a) Mitchell Goldstein credibly testified that about a week
before the September 20 election he observed that there was
some antiunion literature bearing a ‘‘Raw Deal’’ heading13
in one of the casino pits which are designated areas for
games of chance. He then pointed out the presence of the lit-
erature to Dante Benevenuto, pit manager and statutory su-
pervisor, and asked permission to put union literature in the
pit. Benevenuto said he could not. Benevenuto recalls he has
seen both pro-and antiunion literature in the pits or the deal-
ers’ lounge, but denies Goldstein ever asked for permission
to distribute prounion literature in the casino pits.
Benevenuto’s denial is not credited.
Respondent correctly notes, citing St. Francis Hospital,
263 NLRB 834, 835 (1982), which cites NLRB v. Steel-
workers USW (Nutone, Inc.), 357 U.S. 357, 362 (1958), that
no-solicitation, no-distribution rules are not binding on em-
ployers, but this principle is not applicable in this instance
because the ‘‘Raw Deal’’ literature was prepared and distrib-
uted by an employee on behalf of ‘‘Workers against Local
137 Representation,’’ not the Employer. There is no evidence
that Benevenuto took any immediate steps to remove the
‘‘Raw Deal’’ literature from the pit when Goldstein brought
it to his attention. Here we have an instance of disparate
treatment, antiunion literature left undisturbed and similar
placement of prounion literature denied, but this is not an
isolated instance as discussion below of other instances dem-
onstrates.
With respect to (b) and (c), Goldstein credibly and in
some detail testified to contacts with statutory supervisors
Frank Shapiro and Marian Woerner14 on the same day.15
About 1 or 2 o’clock that day, Goldstein, in response to a
document posted in the dealers’ lounge, a nonwork area,
which urged a vote against union representation, taped a
prounion response to the edge of the scheduling board, put
one on the bulletin board where employees advertise items
and personal services they wish to sell, and laid copies on
the cigarette machine and a table in the lounge. Goldstein ac-
knowledges the scheduling board is where the supervisors
and rank and file go to ascertain their schedule, but explains
his posting on the edge of that board did not obscure the
posted schedule.
As Goldstein was performing this distribution, he noted
that Shapiro was behind him holding the six or seven pieces
of literature Goldstein had to that point posted and laid
about. As Goldstein turned toward him, Shapiro asked where
Goldstein was going next, which drew the reply that Gold-
stein was going ‘‘around the other side.’’ To this, Shapiro
said, ‘‘Well, I have to follow you.’’ Goldstein then said he
guessed he would stop. Shapiro then gave Goldstein the lit-
erature Shapiro had retrieved after Goldstein distributed it.
Shapiro agreed he did once remove one piece of literature
posted by Goldstein over a management sign in a glass
frame, does not recall taking a pile of prounion literature and
giving it to Goldstein, says he never told Goldstein he was
following him, never in fact followed Goldstein, and con-
cedes he did ask Goldstein where he was going next. Shapiro
explains he asked the question concerning Goldstein’s next
move because he had just taken a Goldstein posting down,
there was resulting tension, and Shapiro was curious con-
cerning whether Goldstein was going to post ‘‘on top of all
the other things.’’ This latter reference to the possibility of
subsequent posting on ‘‘all the other things’’ confirms Gold-
stein in fact had many copies of his posting in hand and sup-
ports Goldstein’s version he had been distributing many cop-
ies when confronted by Shapiro. Shapiro is not sure whether
he returned the paper he removed to Goldstein, but thinks he
put it in the trash. Shapiro was not a convincing witness and
he is not credited where his testimony contradicts that of
Goldstein, a current employee whose testimonial demeanor
was more impressive in terms of certainty, lack of hesitation,
and apparent candor.
Later that same day, reports Goldstein, about 4 o’clock, he
returned to the lounge and, as before, posted the same lit-
erature and laid copies about in the same places he pre-
viously had. The fact he redistributed the same amount of lit-
erature supports his testimony that Shapiro collected all he
had previously posted and laid out. This time Marian
Woerner removed the literature that he had posted and laid
on the tables.
Woerner agrees she removed about three pieces of
prounion literature Goldstein had scotch-taped to the sched-
uling board, to a glass-covered poster put up by Respondent,
and in the stairway to the casino from the dealers’ lounge.
She gives as reason for the removal that the items were post-
ed in a nonposting area. She does not recall if the schedule
was obscured by Goldstein’s posting, and concedes that em-
ployees occasionally post items on the stairway wall. Her
testimony does not speak to Goldstein’s claim she also re-
moved the copies he laid around in the lounge. Goldstein is
credited that she, as did Shapiro, also removed those docu-
ments.
No one explains how it happened that Shapiro and
Woerner were so close on Goldstein’s distribution which oc-
curred during his breaktime. The immediate removal by the
two supervisors of the Goldstein-placed documents suggests
close monitoring of Goldstein’s conduct because he was
known to be, as the record shows he was so known, a lead-
ing prounion activist in Respondent’s employ. Suspicion is
not evidence, but almost immediate retrieval of the literature
by Shapiro and Woerner strikes me as a most unusual and
unlikely coincidence suggesting preplanning and possible
surveillance of prounion activity. That the ‘‘following’’ of
Goldstein was not pure happenstance is shown to have been
a planned course by Shapiro’s statement that he had to fol-
low Goldstein.
In contrast, according to the unrebutted testimony of
Hilyard and Monroe, there were several ‘‘Raw Deal’’ leaflets
1169TRUMP PLAZA HOTEL & CASINO
16 Dorothy Shamrock Coal Co., 279 NLRB 1298, 1299 (1986). 17 Hale Container Line, 291 NLRB 1195, 1205 fn. 14 (1988).
placed in the dealers’ lounge. Similarly unrebutted testimony
of Buttari places numerous postings of ‘‘Raw Deal’’ docu-
ments on locker room and employee entrance-way walls.
There is no showing the placement of ‘‘Raw Deal’’ docu-
ments in these areas was in any way curtailed.
Respondent has a solicitation/distribution rule which reads,
in relevant part, as follows:
Solicitation at any time by employees in public areas
on Trump Plaza premises is prohibited. Solicitation or
distribution of any type of literature or products to em-
ployees in working areas during working time is pro-
hibited.
‘‘Working time’’ does not include break periods and
meal times or other specified periods during the work
day when employees are properly not engaged in per-
forming their duties.
The dealers’ lounge and the adjacent stairway have not
been shown to be public or work areas, and, as the use of
a bulletin in the lounge to advertise services and items for
sale shows, it has not been treated as a public or working
area.
Three issues are presented by items (a) and (b) and the
evidence relating thereto: (1) Was disparate treatment ac-
corded the attempts to circulate and/or post prounion lit-
erature? (2) Were Woerner and Shapiro engaged in unlawful
surveillance of prounion activity when they followed Gold-
stein? (3) Was Goldstein coercively interrogated by Shapiro
concerning his union activities? The answer to each question,
based on the evidence before me, must be affirmative. When
Benevenuto denied Goldstein’s request to place prounion lit-
erature in a pit where a ‘‘Raw Deal’’ document was present,
and there is no probative evidence Benevenuto made any ef-
fort to remove the ‘‘Raw Deal’’ document or caused it to be
removed, Benevenuto, and thus the Respondent,16 gave less
favorable treatment to prounion distribution than to antiunion
distribution and by this disparate treatment violated Section
8(a)(1) of the Act. Similarly, the conduct of Woerner and
Shapiro in removing prounion literature lying on a table and
a cigarette machine in a nonworking area where such dis-
tribution is permissible under Respondent’s written rule, and
by removing such literature from a bulletin board utilized by
employees for all sorts of sales of goods and service, all
without any evidence of uniform treatment of antiunion lit-
erature which appears from the record to have been permitted
on the walls in locker rooms and hallways and to have been
freely distributed in the dealers’ lounge without any disturb-
ance so far as the record shows, require a finding of dis-
parate treatment violative of Section 8(a)(1) based on a pre-
ponderance of the credible evidence. I further find Respond-
ent violated Section 8(a)(1) by the conduct of Shapiro and
Woerner in following Goldstein during his breaktime in
order to observe and frustrate his protected union activity,
and thus engaging in unlawful surveillance of that activity,
and by Shapiro’s conduct in telling Goldstein, after inquiring
where he was going next and thus unlawfully interrogating
him concerning where he would next carry out his prounion
efforts, that Shapiro had to follow him, a plain announce-
ment to Goldstein that his union activities were under sur-
veillance clearly tending to interfere with, coerce, and re-
strain Goldstein in the exercise of his rights guaranteed by
Section 7 of the Act.
Subparagraphs (d) and (e) have to do with alleged inter-
ference with the right of off-duty employees to distribute
union literature on Respondent’s property. At the end of Au-
gust or early in September, John Hilyard, an off-duty em-
ployee, stood with another off-duty employee on the side-
walk about 7 or 8 feet from the employee entrance to Re-
spondent’s facility and handed union literature and authoriza-
tion cards to incoming employees about 6 p.m. as they exited
the shuttle bus from Respondent’s parking lot and entered the
building to go to work. The sidewalk is on Respondent’s
property but is used by the public pursuant to an easement
held by the city of Atlantic City. Thomas Sparks, Respond-
ent’s director of security and the only witness other than
Hilyard testifying to this incident, states that although
Hilyard was standing so as to partially block egress from the
bus, he did not stop anyone from getting off. Sparks was in
the casino when he received a report some employees were
complaining of being solicited as they exited the shuttle bus.
He proceeded to the scene and there met Hilyard. Sparks told
Hilyard that Respondent had a no-solicitation policy and
Hilyard would have to move off the sidewalk. Hilyard, who
was wearing his dealer uniform, told Sparks he was off duty.
That did not change Spark’s instruction to leave the Re-
spondent’s property. Hilyard stepped into the street and dis-
tributed the union materials from that location.
On a later occasion, about the second week in September,
Hilyard, wearing his work uniform, badge, and license, and
another dealer again stood in the same spot on the sidewalk
from about 5:30 p.m. distributing a union letter. At about 7
p.m., one of Respondent’s security officers came out of the
employee entrance and told Hilyard he could not pass out the
letters on the sidewalk and would have to go out into the
street. It is not clearly stated in the record, but I conclude,
in the absence of any evidence of further confrontation be-
tween Hilyard and the officer, that Hilyard and his com-
panion stepped off the sidewalk as instructed. There is no
persuasive showing Hilyard blocked or tried to block the exit
from the bus or entrance to the building or caused any em-
ployee to be delayed in his or her exit and entrance, or
caused any other impediment to traffic, the public, or the em-
ployees of Respondent.
Respondent, in its posttrial brief, relies on that portion of
its solicitation/distribution policy reading: ‘‘Solicitation at
any time by employees in public areas on Trump Plaza’s
premises is prohibited.’’ Respondent has thus placed the va-
lidity of this rule at issue.17 Respondent also argues that
Sparks was justifiably motivated by several employee com-
plaints about solicitation as they left the bus. With respect
to the latter contention, Sparks received the information from
his subordinate who received it via radio from an unidenti-
fied source who reported there were such complaints. This
hearsay information is not supported by any other evidence
there were such complaints, how serious they were, or em-
ployees were harassed as they left the bus. Moreover, even
if the report be accurate, there is no evidence, even hearsay,
of similar employee complaints concerning Hilyard’s activi-
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 222 NLRB 1089 (1976); and see Ohio Masonic Home, 290
NLRB 1011 (1988).
19 Sears Roebuck & Co., 300 NLRB 804 (1990).
20 Ohio Masonic Home, supra at 1014.
21 Dual-rated dealers are full-time employees who are sometimes
utilized as supervisors but normally act as nonsupervisory dealers.
22 This hearsay testimony of Goldstein was entertained, over Re-
spondent’s objection, not for the truth of what he was told but only
to show what he says he was told and why he contacted Bradshaw.
23 NLRB v. Universal Camera, supra.
ties or of any blocking of egress or ingress by him on the
second occasion that he was ordered off the sidewalk.
What we have here is an issue concerning the exclusion
of off-duty employees from the employer’s premises. The
propriety of the exclusion must be gauged in accord with the
Board’s statement in Tri-County Medical Center,18 that a no-
access rule concerning off-duty employees is valid only if it:
(1) limits access solely with respect to the interior of
the plant and other working areas; (2) is clearly dis-
seminated to all employees; and (3) applies to off-duty
employees seeking access to the plant for any purpose
and not just to those employees engaging in union ac-
tivity. Finally, except where justified by business rea-
sons, a rule which denies off-duty employees entry to
parking lots, gates, and other outside nonworking areas
will be found invalid.
The portion of its solicitation/distribution policy that Re-
spondent refers to may not be used to justify the exclusion
of Hilyard and his employee companion from the sidewalk
for several reasons. The rule is ambiguous because it does
not specify whether it applies to on- and/or off-duty employ-
ees and does not define what public areas on the premises,
which could encompass the entire indoor and outdoor prem-
ises or might be construed as only the indoor gaming areas
where the public assembles to play. Moreover, the sidewalk
is truly a public area in the broadest sense by virtue of the
Atlantic City easement permitting the public, not only cus-
tomers of Respondent, to utilize it. There is no evidence Re-
spondent has any authority to eject anyone from the city’s
easement. The rule on its face and its application to Hilyard
and company fail the tests of Tri-County Medical by extend-
ing the limitation of access to outside nonworking areas, and
clearly denies off-duty employees access to such areas. There
is no valid business reason shown for this broad exclusion
and the rule and its application to Hilyard and off-duty em-
ployee companions clearly violate Section 8(a)(1) of the
Act.19 That the solicitation and/or distribution by Hilyard
may have briefly annoyed some employees is not a valid rea-
son20 to interfere with his protected activities on a truly pub-
lic sidewalk whether the ground under it is owned by Re-
spondent.
8. On or about August 1, 1991, the Respondent, act-
ing through William Bradshaw, in the Hotel/Casino,
threatened an employee that the Respondent would
eliminate the ‘‘dual-rate’’ position if the employees se-
lected the Union as their bargaining representative.
According to Goldstein, he was told by Sherrie
Shillingford and Ruth Cottrill, dual-rated dealers,21 in early
August that William Bradshaw, the senior shift manager and
statutory supervisor, had said ‘‘that if the Union got in, that
they would take away the dual-rate status. They were going
to get rid of them.’’22 Goldstein says he then went to Brad-
shaw and asked him if he had told the ladies that if the
Union got elected in the dual-rate status would be eliminated.
To which, says Goldstein, Bradshaw said, ‘‘Yea, I said it,
cause it’s true.’’
Bradshaw testified that, when Shillingford expressed a
concern about the status of dual-rated dealers, he told her
that if they voted the Union in it would be up to the manage-
ment and the Union to negotiate the status of dual rates. He
denies telling her there would be no dual-rated status. Brad-
shaw states he believed the dual-rate status might be nego-
tiated away because in his past union experience bargaining
agreements only covered line employees and not manage-
ment. Bradshaw recalls Goldstein approaching him the same
or following day and asking what he had told Shillingford.
To which he replied as he had to Shillingford. After this con-
versation, he went back to Shillingford to make sure she had
not misunderstood him. She had not. Bradshaw says she fur-
ther stated she had told Goldstein what Bradshaw testifies he
had told her, and did not want to get involved.
According to Goldstein, Shillingford and Cottrill later told
him that Bradshaw had corrected his earlier statement.
Neither Shillingford nor Cottrill testified. There is no
showing they were unavailable as witnesses by subpoena or
otherwise. What they told Goldstein is hearsay and of no evi-
dentiary weight. Whether he correctly understood them is
also impossible to ascertain. Moreover, Bradshaw was a
straightforward and believable witness whose testimony had
the ring of truth and is credited over that of Goldstein whom
I have credited on other matters, a not unusual situation.23
Accordingly, the allegation in paragraph 8 of the complaint
has not been proved by a preponderance of the evidence and
will be dismissed.
9. In the first two weeks of September, 1991, a more
precise date being presently unknown to the General
Counsel, the Respondent, acting through Dante
Benevenuto, solicited an employee’s complaints and
grievances thereby promising its employees improved
terms and conditions of employment in order to dis-
courage its employees from selecting the Union as their
bargaining representative.
A week or two before the September 20 election, Nat
Prattico was relieved from his work station and told to meet
with Pit Manager Dante Benevenuto. He did so. According
to Prattico, the two then had a conversation during which
Benevenuto asked him what he thought some of the prob-
lems were with the hotel and casino, to which Prattico re-
plied he thought sick pay, benefits, and insurance were prob-
lems and that employees were not receiving good enough
benefits for the amount of money it cost them.
Benevenuto generally testifies that he was asking Prattico
if he had any concerns ‘‘on any of the issues that were in-
volved with the Unions or any concerns basically he might
have had that I might have addressed,’’ but does not recall
what concerns Prattico raised except that one question had
something to do with the Union or the election campaign
1171TRUMP PLAZA HOTEL & CASINO
24 Compare St. Francis Hospital, 263 NLRB 834, 835 fn. 8
(1982).
25 Emphasis added. 26 Casteneda did not testify.
which Benevenuto said he did not know labor law and would
refer it to Keyser. Benevenuto denies telling Prattico he
wanted to address his concerns.
Crediting Prattico, who makes no mention of any promise
express or implied to remedy the problems, mindful of
Uarco, supra and its progeny, and noting that Benevenuto
made no statements indicating he would look into, review, or
do anything at all to correct Prattico’s concerns, and cred-
iting Benevenuto that he did not tell Prattico he wanted to
address his concerns, I am persuaded that inasmuch as
Benevenuto made no overt or implied promise to Prattico,
the mere fact Benevenuto asked Prattico to voice his con-
cerns was not unlawful even if viewed as part of an
antiunion effort.24 Accordingly, I find Benevenuto’s com-
ments did not violate Section 8(a)(1) of the Act.
10. On or about September 15, 1991, the Respondent
granted retroactive holiday backpay for dual-rate em-
ployees in order to discourage them from selecting the
Union as their bargaining representative.
Respondent’s employee manual contains the following
provision:
Full-time hourly employees who are required to
work on a holiday will receive holiday pay equal to
your normal shift at straight time plus time and one half
for hours actually worked on the holiday. Part-time em-
ployees receive time and one half when they work on
a holiday, but do not receive holiday pay for holidays
on which they do not work.
On July 17, 1991, Vice President Velardo issued a memo
to all floorpersons/boxpersons reading, in relevant part, as
follows:
It has come to our attention that there are concerns
with your hours worked against your shift rate of pay.
Some of these hours can’t be helped, due to 24 hour
gaming on the weekends. We would like your thoughts
on the following options:
Option I
Remain with shift/daily rate and continue being paid
for the 6th day.
Option II
Change from present shift rate to hourly rate.
* Time and one half (1-1/2) for hours worked over
8 hours in a day.
* Time and one half (1-1/2) for the 6th day.
* On Company Holidays you would receive Holiday
Pay plus time and one half (1-1/2) for hours worked on
the Holiday.25
Early Outs
If you request to leave, you would be paid for hours
worked that day. If the company asks you to leave
early (during the first four hours of the shift) you
would be paid for four hours. If the company asks you
to leave after the first four hours, you would be paid
for eight hours.
Floorpersons and boxpersons are full-time supervisors.
Velardo’s July 17 memo is not alleged to be unlawful, and
it clearly is not. When the dual-rate employees, who are full-
time employees and function at times as dealers and at other
times as floorpersons or boxpersons, saw this memo they
questioned why they had not been receiving the double time
and a half for working holidays. Within a couple of days of
the memo, Jose Casteneda26 who was then the casino man-
ager but left on September 29, had an information session
with six or seven dual-rated employees. During this meeting,
William Castorini asked if the dual-raters were going to be
paid double time and a half for holiday work like all other
hourly paid employees. Casteneda said he had no answer but
would check into it and get back to Castorini. Casteneda did
not get back to Castorini, but did discuss the matter with
Velardo. Velardo credibly testified that he had not known
dual-rated employees were not being paid double time and
a half for holiday work until the issue was raised after the
July 17 memo. This is not unusual when one recalls he had
only been Respondent’s employee for about 4 months by
July 17. Within the next several days he decided, even
though Casteneda argued that the dual-rate job was designed
to be paid only double time for such work, that all hourly
paid employees were entitled under the written company pol-
icy to the double time and a half. He also decided to start
paying at this rate commencing the next holiday, Labor Day.
A couple of days after Velardo reached his decision to pay
the double time and a half rate in the future, still in July,
he was approached by Anthony Ruggieri, an hourly paid
dual-rated employee, who asked why such employees were
not receiving retroactive pay for holidays worked in the past.
So far Ruggieri and Velardo are in essential agreement. They
differ somewhat over Velardo’s reply. According to
Ruggieri, Velardo agreed it was not fair that the dual-raters
had not been getting the higher holiday pay and added he
was not certain about the payment of backpay but the em-
ployees could pursue the matter. Velardo recalls that, on the
basis of Casteneda’s advice the dual-rate position had been
designed in the past to be paid only double time for holiday
work, that he asked Ruggieri why he thought retroactive hol-
iday pay should be forthcoming when the job had been de-
signed to be paid as it had been paid. Velardo continues that
Ruggieri denied the dual-rate position had been so designed.
Whichever is correct, it is plain that Velardo had not by this
time decided to pay retroactively the difference between past
holiday pay received and that set forth in Respondent’s em-
ployee manual. Velardo did, however, during this meeting
tell Ruggieri that the double time and a half rate would be
paid for holiday work in the future.
Several days later, about the first of August, give or take
a day or two, Velardo was presented with a petition prepared
by Ruggieri and Jimmy Ettore, another dual-rater, typed by
Goldstein, and bearing 65 signatures. It reads as follows:
We the undersigned hourly paid Dual Rates, con-
sisting of Dual Rate dealer/floor and dealer/box, are pe-
titioning for back pay that we feel is owed to us from
the first holiday when the above category of people
began being paid on an hourly basis. This petition con-
sists of anyone holding that position during the above
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Tr. pp. 340–346.
28 Tr. pp. 34–35.
time frame, regardless of their present position. We feel
that we were paid incorrectly for the holidays work. On
page 10 of the employee handbook it clearly states:
Full-time hourly employees who are required to
work on a holiday will receive holiday pay equal to
your normal shift at straight time plus time and one
half for hours actually worked on the holiday.
By being paid double time on holidays does not fol-
low company policy. Your cooperation on this matter
would be greatly appreciated.
Velardo explains that during the period between his talk
with Ruggieri and the receipt of the petition he had caused
the payroll and human resources employees to research past
documentation explaining how dual-raters were to be paid,
but no evidence of any past requirement that these employees
were to be paid any way other than that in the manual was
found. He therefore concluded, testifies Velardo, that there
had been no such rule, and he therefore set up a meeting
with 25 or 30 dual-raters to discuss the matter. This testi-
mony by Velardo concerning his conduct during the period
between his talk with Ruggieri and the subsequent meeting
with dual-rate employees is neither supported nor contra-
dicted by other testimony.
The meeting with dual-rate employees took place in mid-
August, probably within a day or two of August 19 when
Marie Haggerty issued a memo to George Papanier, Re-
spondent’s director of finance, directing the payment to all
active dual-rate dealers of backpay for holidays worked from
March 1988. Velardo testified as follows, in relevant part:
Q. What happened at that meeting?
A. Well, I asked them if they could reflect back to
when the job was formed, you know, if they could re-
member or recall anything about—about this pay,
and—I asked them why they hadn’t brought this issue
up for—for two years, and, unanimously, not a single
person in the room disagreed that it was brought up
from its very beginning and had occasionally been
brought up here and there but with no diligence, but
that—that they were—they were never given a reason
to why they were paid that way. It kept being deferred
and they brought up managers’ names I had never
heard of, that I had never worked with, shift managers,
casino managers, and evidently the issue kept getting
tabled and deferred until it finally came to light again.
Q. When you went into that meeting, had you al-
ready made a decision to pay them the retroactive
amount?
A. No.
Q. When did you make the decision?
A. After I asked them these questions. You know, I
asked them, you know, to tell me if they could remem-
ber back, and when I heard them speak in front of me,
I said okay.
Q. So, you made the decision during the meeting?
A. Right there at that moment, you know.
Velardo told the employees assembled they would be receiv-
ing the retroactive pay, and they did on September 15.
Velardo denies the Union or the election were mentioned at
the meeting. The foregoing account by Velardo is not contra-
dicted, is supported by Ruggieri’s testimony concerning what
happened at this group meeting, and is credited. Velardo and
Ruggieri agree, and I find, that Velardo told those present it
could take quite some time to issue the backpay checks.
Velardo says he said possibly 2 or 3 months. Ruggieri recalls
Velardo saying a few weeks. They agree the reason stated
by Velardo for the delay was the need to check the records
of all the dual-raters who had worked holidays since 1988,
which, I conclude, began the period during which this work
was performed.
At hearing General Counsel’s motion to amend the com-
plaint to allege the prospective grant of the double time and
a half rate violated Section 8(a)(3) and (1) of the Act was
denied. Counsel for the General Counsel renews that motion
in the posttrial brief. The pleadings show the original charge
filed on September 17, the amended charge of November 12,
and the amended charge of December 5 all broadly allege the
grant to be unlawful and are clearly broad enough to encom-
pass the requested amendment. The General Counsel, by the
Regional Director, decided to limit his allegation to the retro-
active payment when he issued the complaint on December
5. The complaint was subsequently amended in other re-
spects on March 27, 1992, but no effort was made to allege
the prospective payment of the double time and a half rate
until after General Counsel had rested (at midday on April
7, 1992) and Respondent had called Velardo and Keyser as
witnesses, both of whom completed their testimony that day.
The following day, at the opening of the record, counsel for
the General Counsel moved to amend the complaint to allege
the decision to pay the rate on or after September 1, 1991,
was made in order to discourage employees from selecting
the Union. Respondent objected. Counsel for the General
Counsel contended she had made the prospective grant an
issue as an unfair labor practice in her opening statement,
and she viewed the retroactive and prospective applications
as a single decision.27 The only comment by Counsel for the
General Counsel in her opening statement pertaining to what
was being alleged concerning the holiday pay is, ‘‘The evi-
dence will show that they made that decision to give them
retroactive backpay back to March ‘88 [on] August 19, 1991,
and that prior to that, they had not come forward with that.
And finally, the checks were distributed on September 15th,
several days before the election.’’28 This did not fairly advise
Respondent or me something other than that which the com-
plaint alleged was to be litigated. On April 7, 1992, during
counsel for the General Counsel’s cross-examination of
Velardo, Respondent’s counsel objected to questions con-
cerning the implementation of the prospective increase on the
ground it was not alleged in the complaint. Counsel for the
General Counsel responded that Respondent was correct the
complaint allegation did not go to the decision to pay the
rate prospectively, but argued the decisions were not nec-
essarily separate and, because the whole issue turned on tim-
ing, that the sequence of events is important. Pressed by me
counsel for the General Counsel expressly stated she was not
alleging the prospective change to be a violation, but viewed
the elapsed time between decision and the issuance of
1173TRUMP PLAZA HOTEL & CASINO
29 Tr. pp. 309–311.
30 NLRB v. Exchange Parts Co., 375 U.S. 405 (1964).
31 McCormick Longmeadow Stone Co., 158 NLRB 1237, 1242
(1966).
32 148 NLRB 970, 973 (1964).
33 See, e.g., Phillips Industries, 295 NLRB 717, 731 (1989), and
Playboy Hotel & Casino, 281 NLRB 1181, 1187 (1986).
34 Wm. T. Burnett & Co., 273 NLRB 1085, 1092 (1984).
35 The date of the issuance of the manual is not in evidence, but
it would seem to logically follow that if Respondent paid retroactive
pay to March 1988 as it did, the manual provision at issue was then
in existence.
Haggerty’s August 19 memo to be suspicious. The objection
was sustained.29 She moved to amend the following day.
Contrary to the General Counsel, neither the Respondent
nor I had been given any reasonable notice the prospective
grant was at issue. Counsel for the General Counsel in fact
gave notice to the contrary when she expressly stated on
April 7, 1992, it was not alleged as an unfair labor practice.
Evidentiary rulings were made in reliance on General Coun-
sel’s representations and it cannot fairly be said the issue was
fully or fairly litigated, noting that Respondent’s witnesses
who were particularly knowledgeable on this subject had
completed their testimony at a time General Counsel had ex-
pressly disavowed any allegation of unlawful conduct con-
cerning the prospective grant. Section 102.17 of the Board’s
Rules and Regulation provides that a complaint ‘‘may’’ be
amended at the hearing ‘‘upon such terms as may be deemed
just.’’ I do not believe permitting the requested amendment
at such a late stage of the hearing, after Respondent’s chief
witnesses on the subject of the holiday pay had testified, and
after General Counsel had agreed the prospective grant was
not in issue would be just, and it is again denied.
It is well settled that the granting of benefits to employees
while a representation election is pending violates Section
8(a)(1) of the Act if its purpose is to induce employees to
vote against the Union.30 As Judge Frederick U. Reel co-
gently observed in McCormick Longmeadow Stone:31
An employer’s legal duty in deciding whether to
grant benefits while a representation case is pending is
to determine that question precisely as he would if a
union were not in the picture. If the employer would
have granted the benefits because of economic cir-
cumstances unrelated to union organization, the grant of
those benefits will not violate the Act. On the other
hand, if the employer’s course is altered by virtue of
the union’s presence, then the employer has violated the
Act, and this is true whether he confers benefits be-
cause of the union or withholds them because of the
union.
The assessment of whether an employer’s grant of
preelection benefits is consistent with its legal duty as de-
scribed by Judge Reel begins with the established presump-
tion stated by the Board in Baltimore Catering Co.32 in the
following terms and has applied consistently to date:33
In the absence of evidence demonstrating that the
timing of the announcement of changes in benefits was
governed by factors other than the pendency of the
election, the Board will regard interference with em-
ployee freedom of choice as the motivating factor. The
burden of establishing a justifiable motive remains with
the Employer.
Velardo is credited that he was not aware the dual-raters
were not receiving the holiday pay prescribed in the em-
ployee handbook until after July 17. It seems clear they were
entitled to such pay. He recognized that fact and promptly
decided to make sure such wages were properly paid in the
future. He then so advised Ruggieri in late July. This was
prior to any request or agreement by the Union, or any other
reliable indication of record, that dual-rated employees were
to be included in the bargaining unit sought by the Union
which, until August 1, sought to exclude those employees
from the unit. This was the situation when Velardo advised
Ruggieri the two and one-half rate would be applied for fu-
ture holidays. The Respondent had a written document man-
dating such payment but, for some reason unknown by the
me, it had not been abiding by the written rule. Laying aside
the possibility the failure to pay the promised wage might
have been actionable in a court of law, it would be mani-
festly unreasonable to require the Respondent to forbear pay-
ing the proper rate to employees not then in the unit sought
commencing Labor Day 1991, or announcing that it would
so do, when the evidence is convincing that Velardo did not
act as he did in this instance because the election was pend-
ing or he had antiunion feelings. I am persuaded that here
he was acting in good faith to correct an erroneous practice
not of his doing simply because he discovered the practice
was at odds with Respondent’s published policy.
The decision and announcement that there would be a ret-
roactive payment to affected dual-raters is another matter.
This decision and announcement were both made after the
Union and Respondent agreed to a unit including the dual-
raters. There is no compelling evidence that the announce-
ment, and payment or even the decision, could not have been
delayed until after the election because the employees would
have received the same amount after the election as before.
As General Counsel fairly notes, the failure of Respondent
to show why the announcement could not have been delayed
indicates the announcement was improperly motivated.34
Velardo clearly was not convinced, when he advised
Ruggieri of the way holiday pay would be computed in the
future, that dual-raters were entitled to backpay for past holi-
days where the computation had been in error. Moreover,
when Velardo met with the dual-raters after the signing of
an election agreement he, by his own testimony, had not yet
made a decision on the retroactive payment, and only did so
after soliciting employee input on the matter. Why he would
so solicit when he well knew they were not being paid in
the manner prescribed by Respondent’s employee manual is
inexplicable. If employees should have been paid a certain
way, as Velardo recognized by announcing future adherence
to the manual formula, it is obvious that previous pay at a
lesser rate was wrong.35 In the circumstances, Velardo’s ex-
planation that he was still investigating past understandings
concerning how the holiday pay for dual-raters should have
been computed is not convincing in the absence of any evi-
dence, other than Casteneda’s advice which Velardo had pre-
viously rejected, that the holiday pay should ever have been
computed in a manner contrary to the manual’s clear instruc-
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 Velardo concedes that his research prior to his meeting with the
group of dual-raters did not find ‘‘a single shred of evidence’’ the
dual-raters should ever have been paid in any way expect that ap-
pearing in the company handbook.
tion.36 Respondent has not shown that the timing of the deci-
sion or announcement concerning the retroactive pay was re-
quired by factors other than the pendency of the election.
Accordingly, I find the decision and announcement were mo-
tivated by a desire to create a friendly feeling by the dual-
raters, then included in the bargaining unit sought, toward
Respondent and thus influence them to vote against union
representation in the upcoming election. This conduct vio-
lated Section 8(a)(1) and (3) of the Act.
THE OBJECTIONS
The objections to conduct affecting the results of election
filed by the Union read as follows:
1. On or about August 20, 1991, in meeting with
employees at the Hotel/Casino, the Respondent, acting
through William Velardo, (a) solicited its employees
complaints and grievances, thereby promising them im-
proved terms and conditions of employment in order to
discourage them from selecting the Union as their bar-
gaining representative; (b) promised to resolve an em-
ployee’s complaint concerning Pit Bosses ‘‘sweating
money’’ in order to discourage the employees from se-
lecting the Union as their bargaining representative; and
(c) promised to provide employees with better sched-
uling arrangements in order to discourage the employ-
ees from selecting the union as their bargaining rep-
resentative.
2. On or about September 9, 10, and 11, 1991, the
Respondent, acting through William Velardo and Craig
Keyser, in meetings with employees at the Hotel/-Ca-
sino: (a) threatened to institute a non-tipping policy for
its employees if they selected the Union as their bar-
gaining representative; and (b) threatened to discontinue
the Respondent’s practice of allowing part-time em-
ployees to ‘‘pick up days’’ from full-time employees.
3. During the period from July 17, 1991, to Sep-
tember 20, 1991, the Respondent interfered with em-
ployees’ distribution of Union literature by engaging in
the following acts and conduct:
(a) Acting through Dante Benevenuto, Marian
Warner, Frank Shapiro and other Pit Bosses whose
names are presently unknown to the General Coun-
sel, refused to allow Union literature in the pits
while permitting anti-Union literature to remain in
the pits.
(b) On or about September 3, 1991, acting
through Frank Shapiro, (i) followed an employee
who was distributing Union literature in the dealers’
lounge; (ii) removed Union literature left by the em-
ployees in the dealers’ lounge; (iii) removed Union
literature from the bulletin board in the dealers’
lounge while permitting anti-Union literature to re-
main the dealers’ lounge; and (iv) interrogated an
employee concerning the employee’s Union activi-
ties.
(c) In early September, 1991, a more precise date
being presently unknown to the General Counsel,
acting through Marian Warner, removed Union lit-
erature from the dealers’ lounge while permitting
anti-Union literature to remain in the dealers’ lounge.
(d) On or about September 10, 1991, acting
through Thomas Sparks and one of the Respondent’s
security guards whose name is presently unknown to
the General Counsel, on two occasions, directed em-
ployees who were on the sidewalk near the employee
entrance to the Hotel/Casino to cease distributing
Union literature.
4. On or about August 1, 1991, the Respondent, act-
ing through William Bradshaw, in the Hotel/Casino
threatened an employee that the Respondent would
eliminate the ‘‘dual-rate’’ position if the employees se-
lected the Union as their bargaining representative.
5. In the first two weeks or September, 1991, a more
precise date being presently unknown to the General
Counsel, the Respondent, acting through Dante
Benevenuto, solicited an employee’s complaints and
grievances, thereby promising its employees improved
terms and conditions of employment in order to dis-
courage its employees from selecting the Union as their
bargaining representative.
6. On or about September 15, 1991, the Respondent
granted retroactive holiday backpay for dual-rate em-
ployees in order to discourage them from selecting the
Union as their bargaining representative.
I have found matters covered by Objections 3(a), (b), (c),
and (d) and 6 to be unfair labor practices occurring during
the critical period between the petition and the election in
Case 4–RC–17676, Ideal Electric Co., 134 NLRB 1275
(1961); Goodyear Tire Co., 138 NLRB 453 (1962). Unfair
labor practices constitute objectionable preelection conduct,
Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962). Objec-
tions 3(a), (b), (c) and (d) and 6 are sustained and are suffi-
ciently serious, considering the narrow margin between the
ballots cast for and against the Union in that election, to re-
quire the election be set aside. The remaining objections to
election are overruled consistent with my findings on the al-
leged unfair labor practices paralleling these objections.
CONCLUSIONS OF LAW
1. Respondent 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. By maintaining and enforcing a rule prohibiting off-duty
employees from distributing union literature in nonworking
areas where there is no justifiable business reason therefor,
Respondent violated Section 8(a)(1) of the Act.
4. By monitoring the union activity of an employee, Re-
spondent violated Section 8(a)(1) of the Act.
5. By removing prounion literature from nonwork areas
while permitting antiunion literature distributed by employees
to remain in those areas, Respondent violated Section 8(a)(1)
of the Act.
6. By refusing to permit an employee to place prounion
literature in a work area where the placement of antiunion
1175TRUMP PLAZA HOTEL & CASINO
literature by employees was tolerated, Respondent violated
Section 8(a)(1) of the Act.
7. By interrogating an employee concerning where he was
going to engage in union activities, Respondent violated Sec-
tion 8(a)(1) of the Act.
8. By granting retroactive holiday pay to employees during
the pendency of a representation election for the purposes of
discouraging union support and inducing the employees to
vote against the Union, Respondent violated Section 8(a)(3)
and (1) of the Act.
9. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
10. Respondent engaged in objectionable conduct requiring
that the election conducted on September 20 and 21, 1991,
in Case 4–RC–17676 be set aside.
[Recommended Order and Direction of Second Election
omitted from publication.]