Bally's Atlantic City

National Labor Relations Board - Administrative Judge Opinions

Oct 18, 2007

04-RC-021286 (N.L.R.B. Oct. 18, 2007)

JD–68–07
Atlantic City, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BALLY’S PARK PLACE INC. d/b/a
BALLY’S ATLANTIC CITY,
Employer,
and Case 4–RC–21286
INTERNATIONAL UNION, UNITED AUTOMOBILE
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, AFL-CIO,
Petitioner
For the Employer:
Charles E. Sykes, Esq.
of Houston, Texas
Richard Tartaglio, Esq.
of Atlantic City, New Jersey
Gerald Einsohn, Esq.
of Las Vegas Nevada
For the Petitioner:
William T. Josem, Esq., Cassie R. Ehrenberg, Esq.
of Philadelphia, Pennsylvania
For the Regional Director:
William Slack, Esq.
of Philadelphia, Pennsylvania
ADMINISTRATIVE LAW JUDGE'S
REPORT ON OBJECTIONS
I. BACKGROUND
DAVID I. GOLDMAN, Administrative Law Judge. Pursuant to Section 9(c) of the National
Labor Relations Act (Act), the International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, AFL–CIO (UAW or Union) filed a representation
petition in the above-referenced matter on April 20, 2007.1 On April 27, the Regional Director
for Region 4 of the National Labor Relations Board (Board) approved a Stipulated Election
Agreement, in which the parties agreed to a Board-conducted representation election on June 2
and 3, for the following employees of Bally’s Park Place Inc. d/b/a Bally’s Atlantic City (Bally’s or
Employer):

1All dates hereafter refer to 2007 unless otherwise stated.
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All full-time and regular part-time dealers, keno and simulcast employees
employed by the Employer at its Park Place And The Boardwalk, Atlantic City, NJ
facility.2
An election in this unit was conducted on June 2 and 3. The tally of ballots showed the
following results:
Approximate number of eligible voters .......................................................................1129
Void Ballots..................................................................................................................... 6
Votes cast for Petitioner.............................................................................................. 628
Votes cast against participating labor organizations.................................................... 255
Valid votes counted .................................................................................................... 883
Challenged Ballots...................................................................................................... 141
Valid votes counted plus challenged ballots ..............................................................1024
After the election, on June 1, Bally’s filed objections to the election. On July 12, the
Acting Regional Director for Region 4 of the Board ordered a hearing on the objections.3 I
conducted the hearing in Philadelphia, Pennsylvania August 14–16. The parties filed briefs on
September 11. Based on the testimony at the hearing, my assessment of the credibility of the
witnesses and their demeanor, the documentary evidence, and the entire record before me, as
well as the briefs of the parties, I make the following findings, conclusions, and
recommendations.
II. THE OBJECTIONS
Bally’s originally filed 10 sequentially-numbered objections. In its posthearing brief (E.
Br. at 30) Bally’s withdrew objections 3–5 and 7. Accordingly, the following extant objections
remain:
1. To the refusal of the Regional Director to provide Notice(s) of Election
printed in various foreign languages that are spoken by hundreds of
eligible voters. The Petitioner did object to the Employer’s request that

2Excluded from the bargaining unit under the stipulation were “[a]ll other employees,
cashiers, pit clerks, clerical employees, engineers, guards and supervisors as defined in the
Act.” The stipulation further provided that “[a]ll full-time and regular part-time supervisors casino
games/dealers dual rate may vote subject to challenge by the parties.”
3On June 14 Bally’s moved to transfer these proceedings to another Region for adjudication.
This motion was denied by the Regional Director on June 19. Bally’s then filed a motion with
the Board appealing the Regional Director’s order. Bally’s motion was denied by order issued
July 12. On July 13, the Acting Regional Director ordered that the hearing in this matter be
consolidated with an unfair labor practice case involving the same parties. Bally’s subsequently
moved to postpone and reschedule the hearing. The UAW opposed Bally’s motion and moved
to sever the election objections hearing from the unfair labor practice case. In orders issued
August 1, Deputy Chief Administrative Law Judge C. Richard Miserendino granted the Union’s
motion to sever and denied Bally’s motion to postpone and reschedule the objections hearing.
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the Notice Election be printed in various foreign languages.4
2. To the conduct of at least one of the Petitioner’s Asian Election observers
who had a sample ballot visible for Asian voters to see before they
obtained their ballots. The Petitioner’s Asian observer would point to the
Sample Ballot’s “Yes” box, which was clearly visible to the Asian voters
prior to the casting of their ballots.
6. Agents, representatives and supporters of the Petitioner threatened,
coerced and intim[idated] various eligible voters who did not support the
Petitioner.
8. Agents and representatives of the Petitioner asked eligible voters how
they were going to vote prior to the election.
9. Agents and representatives of the Petitioner threatened eligible voters
that if they did not sign a document in support of the Petitioner that they
would be the first to go after the Petitioner won the election.
10. By the above, related and other acts and conduct, the Petitioner’s agents,
representatives and supporters interfered with the election.
In its brief, Bally’s describes (E. Br. at 40) objection 10 as a “catch all objection” and
states that “the evidence in support of it has been summarized in this brief.” No specific
evidence or argument is advanced. Such “catch all” objections lack the specificity contemplated
by the Board’s rules and must be (and is) overruled. The Smithfield Packing Co., 344 NLRB 1,
172 (2004), enfd. 447 F.3d 821 (D.C. Cir. 2006); Airstream, 288 NLRB 220, 229 (1988), enfd. in
relevant part, 877 F.2d 1291 (6th Cir. 1989).

In its brief, the Employer advances three issues as a basis to overturn the election
results. The first (Objection 1) challenges the Region’s failure to provide foreign language
translation of the Board’s notices of election. Second (Objection 2), is the conduct of a union
observer accused, essentially, of electioneering from his observer’s post during the election.
Third (Objections 6, 8, 9), is the alleged conduct of union organizers during a visit to the home
of an eligible voter.5 Herein, I consider each issue in turn.

4The original objection indicated that the Petitioner “did not” object the request for foreign
language notices. By letter dated June 12 Bally’s informed the Region and the parties that the
objection should read as set forth in the text.
5At the hearing the Employer presented evidence relating to several additional incidents.
These incidents are not urged as objectionable, or even mentioned in Bally’s posthearing brief.
I therefore find that they are covered by Bally’s withdrawn objections, or otherwise abandoned.
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Objection 1. The Region’s failure to provide translated notices of election
Bally’s objects to the failure of Region 4 to provide foreign language notices of
election.
a. The Employer’s request for foreign language notices
and ballots and the Region’s response
Board elections may involve ballots and/or notices of election prepared in languages
other than or in addition to English.6 Here, the issue was first mooted by Bally’s on April 17, in
response to an April 12 representation petition filed by the UAW over (essentially) the same
bargaining unit at issue in this case. That petition was withdrawn and refiled with the petition
assigned the instant case number on April 20.
In his April 17 letter, Bally’s Vice-President and Associate General Counsel Gerald
Einsohn requested that the notice of election and ballots for the election in this case be printed
in 9 languages in addition to English. The languages requested were Chinese (Mandarin and
Cantonese), Vietnamese, Hindi, Spanish, Bangladesh, Korean, Cambodian and Laotian. The
letter stated:
I am writing you at this time, far in advance of the election, regarding our
request to have the Notice of Election and Ballots printed in additional languages.
We have numerous dealers whose first language is not English. They are hired
to service our diverse clientele. The majority of the employees listed below, to
our knowledge, do not speak English well and do not read English. They receive
their instructions verbally in their native tongue from their supervisors or fellow
employees and any written communication necessary to perform their job is
verbally translated by a supervisor or fellow employee.
Set forth below is the languages and approximate number of employees:
Chinese (Mandarin and Cantonese) 180
Vietnamese 60
Hindi 80
Spanish 120
Bangladesh 15
Korean 8

6The Board’s official notice of election (form 707) is a one-piece document, 25-1/2 x 14”,
supplied by the Board’s Regional Office and posted prior to Board representation elections in
conspicuous places at the voting site. While the official notice of election is of a piece, it is
comprised of three distinct parts or panels. The left 1/3 of the notice (as one faces the notice)
sets forth recitations and explanations under the heading of “General" relating to topics such as
the "Purpose of This Election," "Secret Ballot," "Eligibility Rules," "Special Assistance,"
"Challenge[s] of Voters,” "Authorized Observers," and "Information Concerning Election." The
middle 1/3 sets forth the specific unit covered by the upcoming election and the date, time, and
place of the election, along with a sample ballot identifying the petitioner. This is the only
portion of the form that is not generic. It contains information specific to the election for which
the notice is being posted. The right 1/3 sets forth various rights of employees and
responsibilities of the Board, and provides examples of objectionable conduct by unions or
employers.
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Cambodian and Laotian each of which are
Approximately the same number as Koreans
Based on the above, we are formally requesting that the Notices and
Ballots be printed in each of the languages set forth above. It is our position that
the failure to do so will amount to disenfranchising over 400 votes which is a third
of the unit eligible to vote.
The Region responded the same day, April 17, in a letter from Field Examiner Mary
Leach to Einsohn. Leach wrote:
I am writing this letter requesting additional information and documentation
relating to your request to the Region today for translated Notices of Election and
ballots. Please respond to and provide the following:
1) When Chinese, Vietnamese, Hindi, Spanish, Bangladesh, Korean,
Cambodian, and Laotian employees apply for work, are they given
applications in their native language? If so, please provide copies of those
job applications. When the above groups are interviewed, are they
interviewed by employees who speak in their native tongue? Please
provide the name of the employee who performs the interviews, and the
language that the employee speaks.
2) When the above groups are hired, how does the Employer communicate
with them concerning their fringe benefits? For example, if the Employer
offers its employees health, dental, or life insurance, are those documents
in the above-listed languages? If so, please provide examples of benefit
materials in the above-listed languages.
3) When Chinese, Vietnamese, Hindi, Spanish, Bangladesh, Korean,
Cambodian, and Laotian employees are hired, are they trained by
employees who speak in their native tongue? Please provide the names
of the employees who train them, and examples of the training materials
that are provided to them.
4) When the Employer posts its Wage and Hour, EEOC, and OSHA-type
notices to employees, are those notices posted in Chinese, Vietnamese,
Hindi, Spanish, Bangladesh, Korean, Cambodian, and Laotian? If so,
please provide copies of the notices.
5) Does the Employer translate any of its internal or other memos or notices
to employees to Chinese, Vietnamese, Hindi, Spanish, Bangladesh,
Korean, Cambodian, or Laotian? If so, please provide a copy.
6) Has the Employer provided any of the Chinese, Vietnamese, Hindi,
Spanish, Bangladesh, Korean, Cambodian, or Laotian employees with
translated campaign materials? If so, please provide a copy. Or, has the
Employer hired any translators or interpreters who speak Chinese,
Vietnamese, Hindi, Spanish, Bangladesh, Korean, Cambodian, or Laotian
to communicate with employees about the Employer's campaign? If so,
please provide the name and phone number of the translator or
interpreter, and the agency from which they were obtained.
7) If any of the Chinese, Vietnamese, Hindi, Spanish, Bangladesh, Korean,
Cambodian, or Laotian employees are issued written disciplinary
warnings, does the Employer provide these warnings in Chinese,
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Vietnamese, Hindi, Spanish, Bangladesh, Korean, Cambodian, or
Laotian? If so, please provide examples.
8) If the Chinese, Vietnamese, Hindi, Spanish, Bangladesh, Korean,
Cambodian, or Laotian employees take licensing exams, are those
exams administered in their native tongue? Are these licensing exams
administered by the Employer or by the State?
9) If the Chinese, Vietnamese, Hindi, Spanish, Bangladesh, Korean,
Cambodian, or Laotian employees are assigned duties where they
interact with English-speaking patrons, how do they communicate with
them?
10) Please submit any other evidence which supports your position that
translated Notices of Election and ballots are needed.
Leach’s letter asked Einsohn to respond by noon on April 19. On April 19 Bally’s
Director of Labor Relations Richard Tartaglio wrote to the Region:
I have been asked to respond to the April 17, 2007 correspondence to
Gerald Einsohn, Esq. concerning the above referenced matter.

Translators are used on an ad hoc basis to explain policies and
procedures, applicable state and federal regulations, discipline, training and any
and all other applicable employment related issues.
Subsequently, on April 23, Union counsel William T. Josem wrote to the Region to
record the Union’s objection to Bally’s translation request. The Union, citing the Board’s
Casehandling Manual, stressed its view that the Region’s use of foreign language materials was
permissive, not mandatory, and asserted that the translation of the ballot and notices into 9
languages would present problems of readability. The Union also took issue with the need for
the translation, asserting that Bally’s communicates with its employees in English, and indicating
the Union’s understanding that Bally’s employee handbook and employee complaints were
written only in English. The Union declared: “That employees may communicate with each
other in a language other than English, as was pointed out in Mr. Einsohn’s correspondence, is
not relevant.”
On April 20, the Union’s representation petition was withdrawn, refiled that same day
and assigned its current case number. The new petition triggered a new round of
correspondence between Bally’s and the Region. On April 23, Bally’s reiterated its request for
foreign language notices and ballots in a letter from Tartaglio to Field Examiner Leach that was
essentially identical to the request sent by Einsohn on April 17. Tartaglio’s letter restated
Einsohn’s request and added the explanation about Bally’s ad hoc use of translators that he had
set forth in his April 19 letter. Leach responded to the new request for foreign language notices
and ballots with a letter tracking her April 17 letter, complete with a request that Bally’s respond
to the 10 questions set out in the previous letter. This time, she stated:
This is in response to your April 23, 2007 request that the Notices of Election and
ballots in the above-captioned case be translated into nine languages other than
English. In your letter you state, in part, that “Translators are used on an ad hoc
basis to explain policies and procedures, applicable state and federal regulations,
discipline, training, and any and all other applicable employment related issues.”
A review of your request indicates that it does not contain sufficient evidence to
establish that the Notices of Election and ballots require translation into
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languages other than English in order to permit non-English speaking voters to
exercise their rights in the election in this case.
Therefore, I am requesting your response to the attached questions. Please
answer each question and provide supporting documentation by Monday, April
30, as well as any other information that will demonstrate to the Region the need
for Notices of Election and ballots to be translated into nine languages. Please
note that I understand that you are very busy, and I do not wish to be overly
burdensome with my requests. However, in order for the Region to adequately
consider your request, specific detailed information must be provided. If the
requested information is not provided, it is possible that your request will be
denied.
Attached to the letter were the same ten questions (listed above) that Leach had sought
from Bally’s counsel Einsohn in her April 17 letter.
Tartaglio responded to Leach’s request by letter dated April 27. He stated:
In reiteration of my correspondence of April 23, 2007, it continues to be
Bally’s position that a substantial portion of our Dealer population do not fully
read or understand English. It is not relevant how communication is handled on
a day to day basis. What is relevant is that in order to avoid disenfranchising a
substantial portion of Bally’s non-English speaking Dealer population, the ballots
must be in a language which will permit each of them to properly exercise their
right to vote in the election in this case.
By letter dated May 3, Region 4 Regional Director Dorothy L. Duncan-Moore wrote to
Tartaglio informing him that “I have concluded that your request for foreign language
translations must be denied.” Regional Director Duncan-Moore noted that a Stipulated Election
Agreement providing for a June 2 and 3 election among the approximately 1200 employees in
the stipulated unit had been agreed to by the parties and approved by the Regional Director.
She referenced that “the Board Agent advised you by letter dated April 25 that the information
set forth in your April 23 letter was insufficient to establish that translations were required,” and
noted that the Board Agent had requested answers to questions “concerning the need for the
requested translations and the manner in which the Employer regularly communicates with non-
English speaking employees both orally and in writing, including the documents issued to
employees by the Employer.” In concluding that the translations would not be provided, the
Regional Director concluded:

I have carefully reviewed your letters of April 23 and April 27 and concluded that
you have not submitted sufficient evidence to establish that translations of either
the Notice of Election or the ballots are necessary in this case. In your letter of
April 23, you asserted that English is not the first language of more than 470
dealers, the majority of whom do not read English, and that supervisors and
fellow employees are used "on an ad hoc basis" to translate instructions and
some written communications. In your letter of April 27 you again asserted that a
substantial number of the unit employees "do not fully read or understand
English." However, you failed to answer any of the Board Agent's questions and
asserted that:
It is not relevant how communication is handled on a day to day basis.
What is relevant is that in order to avoid disenfranchising a substantial
portion [of the unit], the ballots must be in a language which will permit
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each of them to properly exercise their right to vote in the election in this
case.
In these circumstances, I find that you have failed to demonstrate that there
exists a need for either the Notice of Election or the ballots to be translated as
you request. Although a substantial portion of the bargaining unit employees
apparently speak English only as a second language, you have cited no NLRB or
court precedent requiring that election materials be translated based only on the
foreign birth of some of the voters. Although the Employer uses supervisors and
employees to verbally translate some oral and written materials for some of the
voters, you admit that such translation is done only on an ad hoc basis. Despite
our specific request, you also offered nothing to suggest that the Employer
routinely issues written communications of any sort in any of these foreign
languages. In addition, you have submitted no specific evidence to show that
voters would in fact be unable to understand the Notice of Election or the ballot
[footnote omitted], though such evidence could have established such a need.
Accordingly, I am denying your request to translate the Notice of Election and
ballots in this case. See Casehandling Manual Section 11315.1.
The election went forward on June 2 and 3, with English notices of election posted prior
to the election, and English ballots used in the election. Over 90 percent of eligible voters cast
ballots. More than 70 percent of the counted ballots were cast in favor of union representation.
b. Language issues and the Employer’s operation
At the hearing, the parties developed evidence regarding the use of foreign languages
at the Employer’s facility.
As background, the facility at issue is a large Atlantic City Casino opened more than 27
years ago and since 2005 owned by Harrah’s. There are approximately 5,000 employees,
including approximately 1200 bargaining unit dealers (including “dual rate” employees who
voted under challenge and whom the Employer takes the position are statutory supervisors).
The bargaining unit dealers operate a number of different games including blackjack, poker,
craps, and roulette. One area of the casino is called the “Asian Pit” and it is devoted to games
that are frequented (although not exclusively) by customers from Asian countries or
backgrounds. These games include a “tile game” (like dominoes but without the dots), Paicow
Poker, seven card poker, and mini-Baccarat. Dealers of Asian descent are employed primarily,
but not exclusively in the Asian Pit. Generally, dealers with thick accents are not encouraged to
work games such as craps that involve relatively more conversation and interaction with
customers, than some of the other table games, such as blackjack, in which the nature of the
game and the use of hand signals limit the necessity of extended conversation.
The evidence shows that a very significant (though unknown) number of dealers were
born in other countries. A significant number speak English as a second language. In recent
years in particular, the ethnic and national origin background of the dealers has become very
diverse. As Michael May, Bally’s vice president in charge of table games, who oversees dealer
hiring, explained, “from a cultural standpoint and ethnicity, it really is across the board.”
The testimony establishes convincingly, and not surprisingly, that on breaks, during
meals, and in social situations, employees who speak English as a second language prefer to
speak their native language with one another.
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On the floor of the casino, English is the standard language spoken by dealers. This
emanates, in part, from a rule, developed 20 years ago and still formally in effect, that forbids
dealers from speaking to customers in any language other than English. As May, explained, the
rule emanated from a concern about the potential for collusion between a dealer and a
customer. With an English-only rule, the supervisors watching the game are able to understand
any conversations. Formally, the rule remains in place. As May described it, “You're supposed
to speak—if you speak to a customer casually you're supposed to speak English.” However,
May also offered that the rule “has gone by the wayside” and “it is not something that is really
enforced across the board. If anything, in order to provide better customer service we've gone
the other path to allow dealers to speak in their native tongue to those customers that are in the
game.” Such foreign language conversations happen regularly and May suggested that they
are encouraged as part of Harrah’s emphasis on customer service. However, the relaxation of
the rule described by May has not been clearly communicated to lower level supervision. At the
hearing, three Bally’s supervisors offered language-related testimony and they provided mixed
testimony on whether non-English conversations with customers were permitted. Two, Chong
Wong and Douglas Vargas-Brenes were certain that dealers must speak English with
customers (see, e.g., Tr. 35, 46, 47, 52, 86), even in the “Asian Pit” (according to Wong).
Another, Wendy Chen, in agreement with May, suggested that it was acceptable for a dealer to
speak a foreign language with a customer who indicated or demonstrated a preference for that
language and that this occurred frequently in the Asian Pit (see, e.g., Tr. 170, 178–179).
Vargas-Brenes (fluent in Spanish and English and a native of Costa Rica) preferred talking
Spanish to native Spanish speaking dealers. In the event of a dispute between a Spanish-
speaking dealer and a customer he would intervene and ask the customer if it was ok for him to
speak Spanish to the dealer, a request to which customers routinely agreed.
Bally’s witnesses testified to assisting with translation of memos or directions on
occasion with dealers who did not readily understand English instructions. The frequency of this
varied. Wong testified that he would speak Vietnamese or Chinese with a dealer if they did not
understand something but asked how often this occurred, said “[n]ot much.”7 Generally at work
he speaks English to the Vietnamese or Chinese employees.8 However, there are “occasions”
when he translates for employees and he testified that of the “Asian dealer[s]” “some [have] very

7In response to questioning by the Employer’s counsel, Wong testified that he “interpreted”
for Chinese or Vietnamese employees “like maybe 10 time per year,” but when the Employer’s
counsel followed up by clarifying that by “employees” he meant to limit the question to
employees who were “dealers” Wong changed his answer and said it was “two or three time per
week.” These answers are inconsistent. As noted, above, Wong originally indicated that it was
“not much” that he spoke Vietnamese or Chinese with a dealer who did not understand
something. I believe that 10 times per year was the more accurate answer and the subsequent
answer an effort to accommodate the Employer at the hearing.
8I note that references at the hearing by witnesses, and by me in this decision to, “Chinese,”
“Vietnamese,” “Spanish” or other dealers is a general reference to the assumed ethnicity or
national origin of dealer. As would be expected, witnesses did not know if a particular dealer
who spoke, for instance, Chinese, was actually from China, Vietnam, or Jersey City. The
witnesses did not know (for the most part) whether a particular “Chinese dealer” (to use that
example again) was an American citizen, a longtime resident of the United States, or a recent
immigrant. The reference is used to denote the presumptive background of such dealers but
more accurately denotes their observed ability to communicate in a relevant non-English
language and, I am sure, the appearance of the individual.
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poor English.” Vargas-Brenes also described performing ad hoc translations for dealers, as
necessary, and indicated a preference for speaking Spanish to Spanish-speaking dealers.
Chen described talking Vietnamese or Chinese to dealers who spoke it, and acting as an
interpreter “all the time,” but said she communicated in English with Hindi, Spanish, and English
native speaking dealers.
Applications for employment are in English only. Dealers are hired through an application
process that includes an audition, “which means they come to table games department and we
actually put them on a live game to see if they can handle dealing in front of customers.”
Applicants who pass the audition “come downstairs and are spoken to with a representative of
the table games department. Normally it's shift manager who will ask them some simple
questions, and a decision is then made, with regards to them being hired.” Asked, “are
interpreters ever used in talking with applicants who have passed the audition?” May answered
that “I have never used an interpreter.”
Bally’s utilizes an extensive employee handbook, which is provided to each employee,
and is written only in English. Its first page is titled “Acknowledgement[,] Receipt of Employee
Handbook” and provides for the employee to sign a page that includes the acknowledgment that
I understand I am responsible for compliance with these regulations, policies and
procedures. I understand it is my responsibility to read the Handbook carefully
and ask questions of my supervisor or the Human Resources Department if there
is information I do not understand.
Similarly, Bally’s distributes benefits handbooks, employee evaluation, and employee
complaint forms that are in English. Muscalino thought that there were some benefits books in
languages other than English but he did not provide examples. Safety training is generally in
English only, but some OSHA training is done in Spanish. Written discipline is given in English
only and employees are required to sign an acknowledgement that they have received the
discipline.
Bally’s Labor Relations Manager Patricia Fineran is involved in the nonunion grievance
procedure established by Bally’s for employees. She has had occasion to need to use a
Spanish translator for one of the dealer grievance hearings but doesn’t have a recent
recollection of using other language translators. Generally, she was unable to recollect many
such recent situations with dealers, and stated that she had not had many “lately, over the last
several months prior to the election, I haven't really dealt with too many dealers.”
In the last couple of years Bally’s has begun offering English as a second language
classes for interested employees. No evidence was presented as to the number of employees
attending the classes, or what portion were dealers.
Frank Muscolina, Bally’s vice president of human resources testified that Bally’s held
numerous mandatory meetings for employees in conjunction with the union election and
campaign. Each dealer was to attend roughly five meetings, each of which Muscolina estimated
lasted an hour to an hour and 15 minutes. Muscolina described the purpose of the meetings as
being “to inform people as to pros and cons” of union representation. The meetings included a
description of the election process and information on how the election would be conducted.
The Employer used a sample ballot at the meeting to go over with employees the “Yes” and
“No” notations to be marked on the ballot by voters. At these meetings Bally’s provided
translation services for employees in a number of languages. When employees signed in for
the meeting they could get translation equipment consisting of a transistor and headphone. The
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transistor was the size of an ipod and the employee could set the transistor to play one of
several languages. Muscolina testified that Bally’s decided to provide the translation services
because in a prior election at another facility they had not done so and, according to Muscolina,
employees there had felt they were at a disadvantage and could not understand everything
discussed in the meeting. At the meetings that Muscolina attended (approximately 12–13)
Bally’s handed out all the translation sets, which was between 75–82 sets. There were between
100–150 employees at the meetings Muscolina attended and not enough translation sets for
those approaching the tables where the sets were kept. No records were kept of how many
people used the translation equipment. Muscolina estimated that Bally’s spent between
$250,000.00 and $300,000.00 on translation services for the campaign.
In addition, some of the Employer’s (and some of the Union’s) campaign literature was
translated into various languages, including Spanish, Hindi, Cantonese, Mandarin, and
Vietnamese. This included a Spanish language Board-created “Notice to Employees” indicating
that a petition seeking an election had been filed and reciting various rights of employees and
examples of unlawful conduct under the Act. This document was distributed in English and in
Spanish by Bally’s. Literature was both mailed to dealers’ homes and distributed by hand.
Bally’s also placed campaign ads with the local media (such as TV, radio, and newspapers) but
these were only in English.
Harrah’s encourages its employees (which since 2005 include Bally’s employees) to
complete opinion surveys to ascertain the employees’ views on the company and their views on
supervisors. The surveys are available in 15 languages. They are used throughout Harrah’s
owned properties which employees 95,000 people around the country at 48 properties. No
evidence was offered regarding the extent to which the surveys were completed, or the
language in which they were completed, by Bally’s employees generally, or by dealers
specifically.
c. Analysis
The Employer contends, essentially, that foreign translations of Board notices of
elections must be provided on request. It also contends that the Region’s failure to do so in this
case warrants the overturning of the election. I reject the Employer’s contentions for the
following reasons.
i. The Board’s policy on translation of notices
While a request for foreign language notices in Board elections is often accommodated,
the Employer’s contention that foreign language translations must be provided upon the request
of a party rests upon no Board or Court precedent, and no Board rule or regulation.
Bally’s cites Marriott In-Flite Services Div.of Marriott Corp. v. NLRB, 417 F.2d 563 (5th
Cir. 1969), cert. denied, 397 U.S. 920 (1970), and NLRB v. Precise Castings, Inc., 915 F.2d
1160 (7th Cir. 1990), cert. denied, 499 U.S. 959 (1991), but neither compel a result in the
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Employer’s favor.9 Indeed, the salient holding is that of Precise Castings, 915 F.2d at 1164,
which approved the Board’s policy of allowing regional directors discretion to decide on the use
of translated ballots and notices:
“Precise Castings observes that the Board has not established a national policy
but has left to its regional directors the choice among multi-lingual ballots in
different languages, and English ballots plus election notices in other languages.
. . . Nothing in the National Labor Relations Act prevents the Board from giving
its subordinates discretion in matters of this kind.”
This (and not the Employer’s proposition that translations of notices of elections must be
provided on request) is the Board’s policy. The regional directors’ discretion is circumscribed by
the need to ensure that the use of only English election materials does not result in interference
with the employees’ free choice. Northwestern Products, Inc., 226 NLRB 653 (1976) (“The
Board’s decision [on the objection to the use of English only notices and ballots] must be based
on a showing that there was interference with the election, resulting from the use of notices and
ballots printed only in English”). This policy of leaving the matter to the discretion of the regional
directors is consistent with the Board Casehandling Manual, which, as the Employer points out,
is not binding authority,10 but adherence to which is desirable as it is “intended to safeguard a
free and fair election.” Kirsch Drapery Hardware, 299 NLRB 363, 364 (1990).
The casehandling manual contains significant guidance for agency staff on the utilization
of foreign language materials in Board elections. Sec. 11315.1 of the Manual clearly makes use
of foreign language notices, and other materials, a matter of discretion based on a showing of
need:

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

11See, e.g., Northwestern, 226 NLRB 653, 654 (1976) (“Here we note that all of the
Intervenor’s previous collective-bargaining agreements with the Employer have been printed
only in English. As contracts with, notices to, the employees by both the Employer and the
Intervenor have been in English only. The Intervenor’s dues-checkoff authorizations have been
printed in English only. These facts tend to show that the use of notices and ballots in English
only could not have had an adverse impact on the election, and hence the record does not
establish any basis for setting the election aside”); King's River Pine, 227 NLRB 299 fn. 2 (1976)
(“As to the Employer's objection that the Regional Director failed to furnish bilingual notices and
ballots for the election, we find that the Employer has failed to present evidence that a
substantial number of Spanish surnamed employees could not read or understand English, and
therefore, the absence of bilingual ballots did not constitute sufficient grounds for setting aside
the election”).
Bally’s contended to the Region that “[i]t is not relevant how communication is handled on a
day to day basis.” Bally’s bases it position on a misreading of Kraft, Inc., 273 NLRB 1484
(1985), where a Board majority overturned an election due to erroneous translations and a
layout so flawed it “makes for difficult reading even for the English-reading voters.” In Kraft, the
Board found that “the multilanguage ballot furnished by the Region is so seriously defective on
its face as to interfere with the employees’ ability to exercise their election choice” and rejected
the regional director’s conclusion that use of English in campaign literature, a succession of
labor agreements, and the dues checkoff cards, “somehow justified the poorly translated Board
ballot.” In this context, the Board stated,
[w]e attach no weight to the fact that non-English reading employees may be
forced to deal with only English translations in the workplace. Rather, it is the
Board’s responsibility when a multilanguage ballot is deemed appropriate to
supply a ballot that can be comprehended in all the languages appearing on the
ballot.
Bally’s quotes the above language and suggests that it shows that use of English is irrelevant to
whether the region should have provided translated notices or ballots. This is a misleading and
out-of-context reading of Kraft. The Board’s conclusion in Kraft was that when a multilanguage
ballot is deemed appropriate because of the acknowledged presence of non-English reading
employees, it is the Board’s responsibility to create and use an intelligible ballot, with legible
layout and translations. With an illegible or confusing document, it is no defense to an objection
to maintain that English is so heavily relied upon that the garbled nature of the ballot is
irrelevant.
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the period January 1, 2006 to June 1, 2007. In response the regions (there are 32 regions,
some with offices in more than one city) provided hundreds of foreign language notices,
overwhelmingly but by no means exclusively in Spanish.12
Bally’s followed its request with another seeking correspondence from the regional
offices during this same period in which the region had rejected a request to provide a notice of
election in a language other than English.13 This yielded the production of one instance of
correspondence between a regional office and a union attorney in which a request for Spanish
language ballots was denied because of a failure of the attorney to provide evidence of the need
for such ballots. (E. Exh. 9 at 2404–2406). It also included Region 4’s March 14 rejection of a
request by another casino for translation of notices of election and ballots into Chinese five
working days before the scheduled election. (E. Exh. 9 at 2354–2356). In that case, the
Regional Director concluded that the request was untimely, and, in addition, found that the
Employer had “failed to demonstrate that there exists a need for Chinese translations,” basing
her conclusion on the employer’s communication with employees only in English and reliance
on bilingual employees for assistance as needed on an informal basis. The employer’s special
appeal to the Board of this decision was denied “for essentially the same reasons noted by the
Regional Director.” (E. Exh. 9 at 2356). Finally, at the hearing in this case, the Regional
Director’s representative introduced into evidence an April 30 letter from another representation
case, in which the Regional Director denied a request that notice of elections be translated into
Mandarin Chinese and Vietnamese or, alternatively, that translators attend the election. (B.
Exh. 4). Similar to her conclusion in the instant case, in that case the Regional Director found
that the employer had failed to demonstrate a need for translations, by showing only that the
employer used foreign language interpreters during its campaign and that for 35–45 percent of
the unit English was a second language. In that case, the employer, according to the Regional
Director, had refused the region’s request that it provide evidence of how the employer
communicates with employees in its operation of the facility.14

12According to information and computer data provided by the Office of the General Counsel
at NLRB headquarters there were over 600 such cases during the period at issue. (E. Exh. 9 at
98–139), although 107 were petitions filed prior to that period. The list appears to include cases
in which elections activities occurred after January 1, 2006. The number submitted by each
region varied dramatically. Of course, so does the number of elections in each region during
the period and, certainly, the incidence of non-English speaking work forces within the
geographic area administered by a regional office. According to these records, two of these
cases involved the translation of notices into 6 languages. None involved translation into more.
The overwhelmingly majority involved translation of 1, and sometimes 2 languages. Region 4
submitted notices for 8 cases for this period, none translated into more than one language.
13This request was followed by one to each region seeking the same information but
appending a list of case names and numbers, received from the Board’s headquarters that had
originated in the region during the requested period. This enabled the regions to search for the
requested information with reference to specific cases.
14Bally’s objected at trial, and objects in its brief to the introduction of this document, which
was not supplied to it in response to its FOIA request. Bally’s contends that the document
should be stricken as a penalty for not producing it pursuant to the FOIA request. The Region
took the position at trial that the document fell within a FOIA exemption privileging its
nonproduction. I admitted the document at trial because it is relevant—at least, it is as relevant
as the Employer’s evidence in Exh. 9 as a whole—and because it fell within the time period for
which the Employer had already introduced hundreds of similar documents in an effort to offer a
Continued
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The remainder of responses from regional offices (including from Region 4) indicated
that there was no further correspondence during this period responsive to the request. A few
added that no requests had been rejected during this period, others stated that no records are
kept of such requests but the region had no recollection of rejecting any such requests. 15
At the hearing, I expressed skepticism about the relevance of these documents, and
about the Employer’s view that they showed either arbitrariness or discrimination by the Region
against it (or the casino industry). But given the Employer’s view of the centrality of the
documents to its arguments, I accepted these documents (over the Union’s objection) into the
record to permit consideration of the issues raised by the Employer after briefing.
Having further considered the matter, I conclude that the documents do not advance the
Employer’s objection. They do not prove, as Bally’s claims that the Region acted arbitrarily or
discriminatorily in denying the request for translations in this case. They show, for sure, that
translated notices of elections are used by regions throughout the country.16 And the lack of
correspondence rejecting requests for foreign notices does suggest that the requests are
granted (and perhaps, even rejected) without much ado. But these documents tell us nothing
about the reasonableness of the request, or the Region’s response, in this case.
It is not just that none of the elections referenced in Exh. 9 appear to have resulted, or
been the product of a request for the translation of 9 (or 8, or 7) foreign languages, as was
requested here. Two cases involved 6 languages, but we have no idea what factors were relied
upon for that extensive a translation to be deemed warranted. But even beyond that obvious
distinction, we know nothing about the circumstances in each case. We do not know if there
was an objection to the translation as was interposed by the Union here. We do not know if
there were oral discussions between the parties reaching an agreement with the Region on
whether and to what extent translations were warranted. We do not know whether in the cases
where translations were undertaken, the lack of English in the bargaining unit was manifest and
known to all parties. We simply do not know anything about the election cases in other regions
(or the other cases from Region 4) that prompted the translation request. This is, as a practical
matter, not subject to ascertainment. Each case may have different factors and those cases
were not litigated, so reliance on these documents means reliance on matters that were never
_________________________
complete picture of the issues raised by the Employer. Given the Employer’s contentions, the
record was better served by including all pertinent documents for this time period. Whether the
Region or the Employer is right with regard to FOIA obligations, I leave to the parties to pursue,
should they choose, under FOIA’s enforcement mechanisms. See, 5 U.S.C. 552 (a)(4)(B). In
any event, I do not think inclusion or exclusion of this document is critical to any party, or to the
resolution of this case.
15I grant the Employer’s Amended Motion to Admit Supplement to Employer’s Exhibit 9 (to
which no opposition was filed) seeking to introduce further responses, received posthearing to
this second round of requests. As marked on the bottom right corner of the submitted
documents these pages are admitted into the record as pages 2462–2465 of Emp. Exh. 9.

16A database of active representation cases provided by Board headquarters to the
Employer (Emp. Exh. 9 at 2196–2200) showed 4800 such cases. Nearly 300 of those were
filed prior to January 1, 2006, but were active cases, often with an election scheduled, between
January 1, 2006 and June 1, 2007. Thus, based on the data supplied by the Board
headquarters, approximately 11–13 percent of representation cases during this period involved
foreign language notices.
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sharpened, challenged, or defended in litigation. Perhaps, it is Bally’s request, under the
circumstances here, that is extraordinary, and not the Region’s response. The documents from
other cases tell us nothing about this case.
The appropriateness of the Region’s determination in this case is measured by whether
that determination is consistent with Board policy on the translation of notices. That policy is
found in Board precedents, not in a review of the unlitigated and uncontested decisions of
individual regions in response to requests for translation in cases around the country. In order
to succeed with its objection to the failure of the Region to translate the notices of election, the
Employer must show that this failure resulted—in this case—in the undermining the election
process. That is the standard or “rule” that the Board requires the region to satisfy in conducting
an election. Whether, in other cases, the regions have provided translated notices of election is
irrelevant. See, Superior Truss & Panel Inc., 334 NLRB 916, 919 (2001) (in view of regions’
discretion, “[t]herefore, the Employer’s argument addressing other Regions use of foreign
language ballots is simply irrelevant”).
iii. The Union’s contention that the
Employer’s objection should not be considered
As discussed, in response to the Employer’s request for translation of the notices and
ballots into nine foreign languages, the Region sent Bally’s a list of ten detailed questions in an
attempt to assess the need for the translation. One could contend that fully answering all ten
questions would be unduly burdensome but Bally’s did not. Instead, it simply asserted in
response to the Region’s inquiry that,
In reiteration of my correspondence of April 23, 2007, it continues to be
Bally’s position that a substantial portion of our Dealer population do not fully
read or understand English. It is not relevant how communication is handled on
a day to day basis. What is relevant is that in order to avoid disenfranchising a
substantial portion of Bally’s non-English speaking Dealer population, the ballots
must be in a language which will permit each of them to properly exercise their
right to vote in the election in this case.17
The lack of cooperation with the Region’s inquiry is manifest. It is consistent with the
position taken postelection that Bally’s is entitled upon request, with nothing more, to receive
foreign language translations of notices for use in the election, a position that, as I have
discussed, is without support in logic or precedent. Indeed, it is notable that the Region’s denial
of Bally’s request on May 3, explicitly cited Bally’s failure to provide sufficient evidence to
demonstrate that translations were necessary or any evidence to show that voters would be
unable to understand the notices or ballots. Although this explanation was sent to the Employer
a full month before the election, Bally’s took no steps to provide the requested information,
preferring, apparently, to reserve any evidence for postelection objections.

17I note but will otherwise ignore for purposes of the analysis that the above-response to the
Region says nothing about notices of elections, but insists only that translated ballots must be
provided. However, I will consider this an inadvertent error. I believe the Region understood
that Bally’s maintained its original request that ballots and notices of election be translated.
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The Union contends (U. Br. at 9–10) that Bally’s refusal to cooperate with the Region’s
inquiries should bar it from introducing evidence postelection that “should—and could—have
been presented when the Region originally made its requests for information.” As the Union
puts it, “[a]ny other result would reward a party for refusing to provide requested information to
the Region in such circumstances.”18
This argument is not without force. As every practitioner (on every side of the labor-
management divide: union, employer, and government) knows, cooperation is the lifeblood of
the administrative law system. Penalties for noncooperation abound. Charges are dismissed,
complaints are withdrawn, and summary findings are made based on a lack of cooperation by a
party. Issues are waived before the Board if not brought to the attention of the ALJ. Issues not
raised before the Board may not be raised in court challenges. The reasons are obvious and
profound. At each stage of the administrative process the agency must be permitted to resolve
issues that could stand in the way of efficient, timely, and just administration of the agency’s
mission. Permitting the litigation of issues that could have and should have been considered
earlier in the administrative process comes at great cost in terms of expenditure of resources,
time, delay, and justice. This situation is illustrative. The Region requested the Employer to
provide support for its claims that translated election materials were necessary. Had the
Employer cooperated, it may have convinced the Region to accede to its request, and the
election would have gone forward in the manner urged by Bally’s. By not cooperating, Bally’s is
complicit in creating circumstances that it now claims warrants a new election. And of course,
perhaps perversely, the stronger Bally’s case at the hearing that the absence of translations
undermined the employees’ free choice, the more it should be deemed responsible for the
elections’ failings. To overturn the election on these grounds now would, in fact, reward Bally’s
for its noncooperation, to the detriment of the Board’s election process. I am sympathetic to the
argument that Bally’s should not be permitted to overturn this election, forcing over 1100
employees back to the polls, because of arguments and evidence it could have presented in
response to the Region’s questions on this very subject.
There would be, however, costs to a rule that prohibits Bally’s from litigating an objection
on an issue as to which it was requested but refused to provide information preelection. If
Bally’s concerns about the notice of election are warranted, then it is the employees’ free choice
that has suffered because of Bally’s noncooperation. The non-English speaking and reading
employees are left to the willingness and competence of the union and employer to request and
then support the request for translated election materials. However, it is also true that this is the
case in nearly every representation case and most unfair labor practice cases. The union and
employer parties make decisions that impact the rights of employees in all aspects of the
representation process. That reliance on the employer and union to identify and shape some
issues, and ignore others, is a normal part of the process.
Were I writing on a blank slate, I might be inclined to reject Bally’s effort to litigate this
issue. However, I think that the Board’s decision in Northwestern Products, Inc., 226 NLRB 653
(1976) precludes the approach urged by the Union.
In Northwestern Products, an incumbent union intervenor raised postelection objections
to the use of English only ballots and notices. Prior to the election the parties (including the

18At the hearing, the Union raised and preserved this objection to the introduction of any
evidence by the Employer offered on language-related issues among the workforce. I decided
to take the employer’s evidence without prejudice to the Union’s argument (in effect,
conditionally overruling the Union’s objection) but invited the Union to raise this issue in its brief.
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employer, the union petitioner, and the intervenor union) had stipulated that the notices and
ballots would be in English only. In an argument similar to that advanced by the Union here, the
Board explained that “[t]he Petitioner contends that the Intervenor’s objections must be
overruled on the ground that the parties had agreed to conduct the election solely in English and
stipulated that they would not challenge the election because of this fact.” Indeed, in
Northwestern Products, the intervenor had been asked whether it was requesting bilingual
ballots and notices and had indicated it was not. The Petitioner further objected on grounds that
the language difficulties of employees failed to establish that they did not understand the ballot.
In Northwestern Products, the regional director had granted the objection and overturned the
election because of the language problems in the bargaining unit. The Board rejected the
regional director’s recommendation, but in doing so stated that
we do not place total reliance on the stipulation of the parties. Any such
stipulation, even one for bilingual ballots, is a factor, but nevertheless, is not
controlling. The Board’s decision must be based on a showing that there was
interference with the election, resulting from the use of notices and ballots printed
only in English. . . . Although, as indicated above, a stipulation such as involved
here may not be the decisive factor in determining whether there has been
interference with an election, it is entitled to consideration and some weight.
The implications of the Board’s view for this case are inescapable. If a preelection
stipulation to use English-only notices and ballots does not bar a postelection objection to the
use of English only notices and ballots, Bally’s failure to cooperate in establishing the need for
them cannot bar its posthearing objection over the failure to grant its request. Therefore,
although I am sympathetic to the union argument, I think that Northwestern Products represents
the Board’s precedent on this question. I therefore reject the Union’s position that Bally’s
objection and evidence in support of it should not be considered.
iv. The Employer has failed to demonstrate that the
failure of the Region to translate the notices had a
tendency to interfere with employees’ freedom of choice
Provided the opportunity at the postelection hearing, the Employer has failed to show
that the Region’s refusal to translate the notices of election resulted in interference with the
employees’ free choice. That is the nub of the issue presented by this objection. Northwestern,
supra, (“the use of notices and ballots in English only could not have had an adverse impact on
the election, and hence the record does not establish any basis for setting the election aside”);
Superior Truss & Panel Inc., 334 NLRB 916 (2001) (refusing to overturn election in unit where
10-15 of 28 eligible voters did not understand, speak, or read English, despite claims that
English only ballot and deficient translation of notices warranted rerun, where there was no
showing of confusion among voters regarding election).
At the hearing, Bally’s convincingly demonstrated that many of the dealers speak
English as a second language, and that when given an opportunity, they prefer to speak their
native tongue to one another. Supervisors who share a native tongue with someone they
supervise share in this preference and practice. As, Douglas Vargas-Brenes explained, “[i]t
comes natural” and leads to “[b]etter understanding.” None of this demonstrates that dealers
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are unable to understand written English or are unable to understand voting instructions in
English. That is a threshold issue for Bally’s case and it is unproven on this record.19
As to evidence in support of that proposition, the evidence is very limited. In the first
place, as an employer, Bally’s overwhelmingly operates in English and English only. Its
handbook, which is an extensive compendium of rules and regulations governing all aspects of
employment, includes an acknowledgement which each employee must sign indicating that “I
am responsible for compliance with these regulations, policies and procedures. I understand it
is my responsibility to read the Handbook carefully and ask questions of my supervisor or the
Human Resources Department if there is information I do not understand.” It is fair to assume
that Bally’s considers this acknowledgement as grounds for holding employees responsible for
compliance with the rules in it. Clearly, Bally’s intends for dealers to read the handbook and
expects that they can.
As discussed above, Bally’s operates in English. Its applications for employment are
taken in English and there is no evidence that translation is used in hiring or the interview
process, although the hiring of foreign born dealers is quite common. Written employee
discipline is meted out in English only. While the strict “English-only” rule of years past barring
the speaking of any language but English with customers has been relaxed, this demonstrates
only a willingness to allow dealers to speak a foreign language with like-skilled customers. It
does not demonstrate the inability of dealers to communicate in English. The assertions in its
initial request to the Region that hundreds of the dealers cannot read or understand English is
entirely unproven on this record.
Bally’s relies upon the showing that translation is used in the facility on an “ad hoc”
basis. However, I agree with the Regional Director (who entertained this argument preelection)
that this is insufficient to demonstrate the need for foreign language notices to enable
employees to participate meaningfully in the election. The ability of Bally’s to operate in English,
with reliance only on “ad hoc” translation if and when available, suggests that the language
problem is extremely limited in scope and severity. It shows that there are employees who
prefer to have some information translated. But, since it is ad hoc, these same dealers must
also be able to perform their work, maintain their jobs, and go about their business without
translation. Obviously, the dealers have the ability to operate games and interact with
customers in a company that, according to Bally’s executives, makes customer service a
priority. Obviously the dealers are able to get hired and maintain employment in a workplace
where management hires, manages, disciplines, and reports in English. Indeed, because of the
lack of showing that any bargaining unit employees cannot read enough English to cast ballots
meaningfully, this case does not require reaching the issue of whether, among employee who
cannot read English, foreign language accommodations are necessary.

19Bally’s position on brief appears to be that the assertions about the limited English ability
of hundreds of employees contained in Tartaglio’s correspondence to the Region must be
accepted as true. That is not the case. Indeed, Tartaglio’s letters, which, in any event, are
hearsay for purposes of the truth of matters asserted therein, are carefully phrased in a manner
that reveals their foundational problems. For instance, he writes on April 27 that “it continues to
be Bally’s position that a substantial portion of our Dealer population do not fully read or
understand English.” His initial April 23 request to the Region stated that “[t]he majority of the
employees listed below, to our knowledge, do not speak English well and do not read English.”
This phrasing reflects the author’s lack of first-hand knowledge regarding these declarations.
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In any event nothing in the record provides the slightest evidence that any employee
language limitations suggested by Bally’s interfered with the exercise of free choice by
employees. Bally’s claims to the contrary are speculation, backed by no evidence. “The Board
has held in numerous cases that it requires more than mere speculative harm to overturn an
election.” Transportation Unlimited, 312 NLRB 1162 (1993). Moreover, Bally’s extensive use of
interpretation services in its preelection employee meetings significantly undercuts Bally’s
postelection speculation that employees did not understand balloting procedures. Prior to the
election, each dealer was required to attend roughly five meetings, each lasting at least an hour,
at which translation equipment in multiple languages was available. These meetings included
information on balloting and election procedures and specific descriptions using a sample ballot
about how to cast a ballot. Bally’s decision to provide translated explanations of the election
process further erodes even Bally’s speculative claim that the election process suffered from
employee confusion or inability to participate meaningfully due to the Region’s failure to
translate the notices.
In sum, in this case the Regional Director exercised the discretion afforded her by the
Board to determine whether translated notices were necessary for the integrity of the election.
She decided they were not, in part, because of Bally’s refusal, upon the Region’s request, to
provide substantiating information for its request for translated notices. The Employer has failed
to show—either preelection in response to the Region’s inquiry, or postelection through
evidence presented at the objections hearing—that the use of only English notices of election
resulted in any voter confusion or in any way adversely impacted the election. Accordingly, I
overrule the Employer’s Objection 1.
Objection 2: The Conduct of Union Observer Suisung Wong
Bally’s dual rated floor person Sangita Patel served as an observer for Bally’s in the
representation election. (At the time of the election she was a dealer, but since the election has
been promoted to dual rate floor person). Her union observer counterpart was Suisung Wong.
During their election shift, Patel and Wong sat side-by-side behind a table. Three other pairs of
observers sat farther down the length of the table. The observers sat behind the table—
described as about four feet wide—and checked in voters by last name as they came to vote.
The Board’s notice of election with a sample ballot was on the table in front of Patel and Wong
facing voters, upside down to Patel and Wong. A sign hanging vertically in front of them on the
table indicated that voters with last names beginning with T–Z were to register with Wong and
Patel. Other sets of observers to Wong and Patel’s right sat in front of signs designating other
portions of the alphabet. When a voter approached the table one of the observers would ask for
the voter’s name, find it on the list of eligible voters, check off the name, and then the voter
would be given a ballot by a Board agent and directed to the voting booth.20 Wong sat to
Patel’s right. Standing off to the left, between the voting booths and Patel, was an agency
employee, Field Examiner Mary Leach, who was in charge of running the election.

20In accordance with the Employer’s position (and the stipulated election agreement) Patel
would challenge any voters who held dual rate floor positions. In accordance with typical Board
procedures their ballots were segregated from those of unchallenged voters.
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Patel testified that she noticed Wong21 reaching across the table and pointing to the yes
box on the sample ballot with the eraser end of his pencil when a voter would come into the
room. Patel testified:
I noticed the dealer next to me was—he—we both had a pencil in one hand and
he was sitting next to me and the paper was little far away and he was pointing to
the "Yes" box because the people's [a] little far and he kept pointing [at] it every
time that he see dealers coming in and I observed that he kept doing it. I didn't
t[ell] her right away, I observed him for more than 10 times and then I told Mary
Leach, tried to get her attention to it that he's doing this and which is not right.
So she went to him, told him he can't do it, took the paper and moved it away.
Patel testified that when Leach approached Wong, Wong denied Patel’s accusation and
told Leach that he was not pointing to the yes mark on the sample ballot but was pointing to the
T–Z notice to show a voter which line they should get in. According to Patel, Leach moved the
notice of election, and that “was [the] end of [the] story” and the issue was closed.
Wong also testified. For the most part his account of the voting procedures and events
were the same as Patel’s. But he vigorously disputed that he had pointed to the yes box on the
sample ballot, or even to the notice of election. In accordance with Patel’s testimony, Wong
explained that after Patel told Leach that Wong had pointed to the ballot Wong protested, telling
Leach that he had pointed at the alphabet and not at the sample ballot. Wong explained that
some voters, tired and coming from work, had gotten in the wrong line and he was pointing
them to the correct line. Wong insisted that he pointed to the T–Z once, using the pen that he
and Patel each had to check in voters. At that point Patel told Leach he was pointing to the yes
box, Leach talked to him, moved the notice of election, and that was the end of it.
Patel and Wong’s stories cannot be reconciled, although there is reason to believe that
neither account is entirely accurate. Wong was a voluble, excitable witness, who, it seemed to
me, felt unjustly accused of wrongdoing and was determined to protest his innocence
regardless of the particular question put to him.22 I do not accept his testimony that he only
pointed once to the alphabet in an effort to direct voters to the right line. It is hard to imagine
him sitting quietly if a voter appeared the least uncertain about what direction he was to go in.
Having said that, I am not convinced by Patel’s testimony either. Patel testified with a
great deal of certainty and assuredness, yet I was left wondering if the story had not hardened
in her memory with greater clarity than there was at the time. Her testimony was that “more

21Patel was not sure of the name of this union observer, she described an “Asian man” and
was unsure of his name. However, Wong’s testimony leaves no doubt that he was paired with
Patel and that he is the union observer to whom she was referring.
22Wong spoke with a thick accent, and he often mixed up the pronouns he and she,
especially when he spoke excitedly (which was often). But I do not believe he had any
significant difficulty understanding the questions posed to him. On brief, Bally’s contends that
“Wong has a very limited understanding of English” and was “English-challenged” but I think
that misstates the matter. If I agreed it might explain some of the agitated behavior of Wong on
the witness stand, and his testimony that he did not meet with anyone to discuss his testimony
in advance, when union counsel made clear that he did. But I do not think these problems were
attributable to language difficulties.
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than ten times” Wong pointed to the yes box in the sample ballot with the rubber of his pencil.
She declared (when I asked, although she had not stated this previously) that in each of the
approximately 10 instances the eraser end of the pencil touched the paper of the sample ballot.
I doubt this. First, and although it is not a particularly critical point, I wonder about these pencils
(Patel was sure it was a pencil, and not a pen). Patel claimed both she and Wong had pencils
in their hand. Wong’s testimony, that each observer held a pen (one blue, one red, with the
union observers using one color and the Employer observers using another) is consistent with
the testimony of other observers (see, testimony of Employer observer Kenneth Sarnes), and it
is more plausible as method to check in voters. I do not suggest that Patel was “lying” about the
pens and pencils, but if she was mistaken, and I find that she was, it begins to suggest that the
certainty with which she presented her testimony warrants scrutiny. More important, I think that
it is a reasonable question why, if Wong’s conduct was so blatant, with his pencil (or pen)
touching the sample ballot paper ten times, Patel waited for him to do it in the case of 10 voters
before she raised it with the Board agent Leach, who was standing next to Patel. The answer is
found, I believe, in Patel’s response to this very question. She said, “[i]ts not like I waited, I
wanted to make sure that’s what [he wa]s doing.” Patel waited, I believe, because it was not, in
fact, obvious or clear what Wong was doing. It would have been had his pencil been touching
the yes box or anywhere near it, but his pointing in the vicinity of the notice of election and T–Z
designation (just beyond the notice of election) would not have been so clear. In other words, if
Wong’s actions had been as blatant as described by Patel, I do not believe she would have
waited. She waited, by her own admission, because it was not clear that Wong was pointing to
the yes box, or even to the sample ballot.23
Under these circumstances, I do not believe the evidence establishes that Wong
engaged in the misconduct alleged, i.e., repeatedly pointing to the yes box on the sample ballot
as voters approached the table. I find that he pointed in the vicinity of the sample ballot and the
T–Z designation. I believe he did this more than once, perhaps as many as 10 times. I find he
stopped when instructed to stop by the Board agent. I think that the evidence does not
establish that he intended to or did point to the yes box on the sample ballot. There is no
evidence that any voter was under that impression. Accordingly, I overrule the objection as
unsubstantiated factually.
Objection 6, 8, 9: The incident at Joseph Wanek’s home
Joseph Wanek is employed as a parttime dealer for Bally’s. He testified to the following:
on May 29, the Tuesday before the upcoming weekend election, at approximately 3:15 to 3:20
p.m., he was leaving his home to pick up his children from their school bus stop. Wanek
testified that as he came out of his house a white pickup truck plastered with UAW stickers and
placards pulled up to his house. Two men exited and asked him if his name was Joseph
Wanek. Wanek asked, “who wants to know?” and the men presented ID’s and said they were

23Bally’s explains Patel’s delay in bringing Wong’s conduct to the Board agent’s attention as
“consistent with the culture in which she was raised.” I reject that wholly unsubstantiated
explanation. Without reference or regard to the cultural norms of her native country, my
impression of Patel was that she would not have been reticent or hesitant in the least in carrying
out her observer duties. If she were to err, my impression is that she would be over not under
zealous, and indeed, that may have been what happened here. Wong, describing Patel’s work
as an observer, said that “her actions is very quick and smart. . . . [S]he handled the book, the
names, she's tough for everything.” I suspect Wong is accurate on this. I find that Patel’s delay
in approaching Leach reflects the ambiguousness of Wong’s actions, not any tendency
(personal, cultural, or otherwise) on Patel’s part to delay reporting perceived violations.
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representatives of the UAW. One said he was from Buffalo and the other might have said he
was from Pittsburgh. One of the men, who had a clipboard with him with a list of names, told
Wanek that his name was on the list and “we’re going around to find out how you’re going to
vote on Saturday for the vote. And we don’t want to happen to you what happened to the
dealers at . . . Hilton.” Wanek understood this as a reference to the fact that the Hilton dealers
voted down UAW representation. Wanek refused to tell them, and the one said “well, you have
to tell us.” Wanek again refused to tell them, declaring that “that’s my business and my
business alone.” The second individual then said, “I guess you have to go on the list.” Wanek
asked “what list” and the second organizer said “you’re going to be one of the first ones to go.”
Wanek accused them of threatening him and ordered them off his property. They initially
refused to leave, but then Wanek punched 911 into his cell phone, held it up to reveal the
numbers and threatened to call the police if they failed to leave. The men returned to their
truck. Wanek left to pick up his children at the bus stop only about 100 yards away. While
waiting at the bus stop Wanek said he looked in his mirror and saw that the UAW
representatives were parked behind him at the bus stop. Then a police car happened to drive
by and the truck left. At that point Wanek called Michael May and told him what had happened.
The conversation was short, 2 minutes according to the cell phone records. In his testimony,
May confirmed that Wanek called him “around Memorial Day . . . extremely upset that he had
been visited by the UAW folks, and basically ran through a little bit of what occurred.” May told
him to “see me tomorrow and we’ll talk about it then.” In his testimony, May did not corroborate
Wanek by offering details of the events conveyed by Wanek.
When Wanek went to work the next day he discussed the issue with a number of people.
He testified that he “told every pit boss” about the incident. He also discussed it with voting-
eligible dealers, although he could name very few with whom he spoke about the incident. He
listed pit bosses, and then 3 individuals that he did not identify as bosses or dealers, and then 1
individual he identified as a dealer that he told.
Wanek’s testimony was corroborated, to some extent, by a number of witnesses. Joe
Cella, a Bally’s pit manager, confirmed that on the Thursday before the election, May 31, Wanek
and he were talking while waiting for customers at a game Wanek was dealing. Cella testified
that Wanek told him that a couple of UAW representatives had come to his property in a pickup
truck and made “threatening remarks” and acted in a “threatening manner.” Cella reported that
Wanek said he had been shown a list or paper and that when he asked the UAW
representatives to leave they did not. Cella testified that Wanek had told him how he opened up
his cell phone and dialed 911. Bally’s pit manager Sam Lagrotteria testified that in the week
prior to the election, Wanek approached him and “grabbed me and he says do you believe this
shit. . . . He said these guys from the Union grabbed me the other day in front of my house,
they were camped out in front of the house.” Lagrotteria testified that Wanek told him that the
union representatives wanted to know how he was voting in the election, that they did not want
what happened at the Hilton to happen here, and that “they told him that he would be among the
first to go, if they did take control.” Lagrotteria testified that this conversation was between just
Wanek and himself but that it occurred on the casino floor so there are always other people
around. Lagrotteria testified that he did not know if anyone overheard the conversation.
Lagrotteria discussed the incident with other pit bosses and floor people as “more or less
cafeteria talk.” Asked whether he discussed it with any people eligible to vote in the election
(i.e., dealers) Lagrotteria said he could not recall doing so but that it was possible.
Dealer Joyce Kelly testified that on Saturday June 2, while taking a smoking break with
Wanek, he told her that the UAW had come to his house “and that they had threatened him, and
he was not very happy about it. And that he had told them to get off his property.” Kelly could
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not recall the nature of the threats or whether Wanek described them but she said “I just know
that in my mind it was that he had been threatened. I don’t remember what he said specifically.”
Wanek’s testimony was sharply disputed by UAW staff official John Garvey. He testified
that he and another UAW staffer made a house call to Wanek on May 30 (the day after Wanek
said the visit occurred). Garvey testified that when he and the other UAW organizer, Scott
Adams, knocked on the door there was no answer. As they started to leave Wanek came out of
the house. According to Garvey, Wanek had his phone to his ear and motioned for them to
wait. When he finished on the phone he said “I know who you are.” Garvey said they explained
that “we are just out talking to card signers to see if there are any last minute questions about
the election.” Wanek said that he did not have time to talk because he had to pick up his child.
They said “thank you” and Garvey thinks Adams said “Well I hope you do the right thing.”
According to Garvey, the entire encounter lasted about a minute. Garvey denied that there was
any reference to the Hilton, that they asked Wanek how he would vote, or that they suggested
he would be the first to go if the Union won. He denied having any such list. Garvey denied
following Adams to the bus stop. Garvey denied seeing Wanek dial 911. Garvey denied seeing
any police cars in the vicinity. He testified that they last saw Wanek as they were driving away
and Wanek was getting into his car. Garvey said that he and Adams were driving a rented SUV
and that there were no UAW insignia or stickers on it. He testified that he had a folder, but no
clipboard, and wore a UAW shirt. Garvey testified that Wanek was on their list to visit because
he had signed an authorization card in support of union representation but they had been
unable to contact him by phone. In response to Bally’s captive audience meetings the UAW
was making house calls and seeking to confirm that card signers were still supportive.
This is not an easy credibility determination. I detected no obvious problems with the
demeanor of either Wanek or Garvey. Wanek’s affidavit stated that the UAW organizers arrived
in a van, not a pickup truck, as he testified, but he convincingly asserted that the affidavit was in
error, and it is a small discrepancy in any event. It does strikes me as somewhat odd that
Wanek failed to mention (or that counsel failed to adduce) that he had signed an authorization
card, a fact that might be expected to set a different tone for the house visit than a “cold call” to
an employee.24 I do not accuse Wanek of overreacting, but one detects a certain vigor to his
assertions and reactions that give pause. This is an employee who admits that he called the
UAW to complain of “harassment” because they sent him—a card-signer no less—union
literature in the mail. This shows he is exquisitely sensitive to union solicitation, and not passive
about asserting himself and his views. In assessing his credibility it is noteworthy, at least, that I
believe the mere appearance of UAW representatives at his house would have been
upsetting,25 and therefore, raises the question of whether his account was influenced
accordingly. I also note that there is no evidence that any other employee was subjected to
such threats. It is possible, of course, that it occurred and was not reported, but if, as Wanek
says he was told, Garvey had a list of such people, and was out visiting them, it seems likely
that there would have been some evidence (or even rumors) about it. But there was not. It
detracts from the plausibility of the incident if I must conclude that Garvey and Adams picked
Wanek out of hundreds of employees to make this threat to him and only him.

24Garvey’s assertion that Wanek signed an authorization card was not, but easily could have
been, rebutted by recalling Wanek. I credit Garvey’s undisputed testimony on that score.
25Although, entirely unobjectionable under longstanding Board precedent, at least when
unaccompanied by threatening or other coercive conduct. Canton Carp’s, Inc., 127 NLRB 513
fn. 3 (1960).
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Garvey’s testimony was appropriate on its face. Yet, Garvey’s testimony is not without
its problems. Actually, its not Garvey’s testimony, but what is missing from the Union side of the
evidentiary conflict. Given the direct conflict between Wanek and Garvey’s
testimony, one does wonder why Adams, the other party to the conversation did not testify. No
explanation was offered. Garvey did explain that he could not find another piece of evidence—
his house call report—that, if filled out the way he claimed, would have corroborated his account
of the encounter. However, the adequacy of the search seemed limited. He also testified that
the secretary had typed in information on the report into the computer, but that he did not ask
her or anyone else to print that information out. I hasten to add that, as far as I know or the
record shows, none of this information was subpoenaed by the Employer, so the UAW was
under no obligation to produce it, and by the same token, the Employer was free to subpoena it.
But still, Garvey raised it and relied upon it in his testimony and this potentially corroborating
piece of evidence was not introduced. That, and Adams unexplained absence raise questions.
Ultimately, it is unnecessary to resolve this very pointed credibility dispute. I have
overruled all other objections advanced by the Employer. Assuming that this incident occurred
the way Wanek explained, I do not believe that this single incident can be the basis to overturn
an election of 1100 employees that was decided by a margin of well over 2 to 1.
“[T]he burden of proof on parties seeking to have a Board-supervised election set aside
is a heavy one. The objecting party must show, inter alia, that the conduct in question affected
employees in the voting unit and had a reasonable tendency to affect the outcome of the
election.” Delta Brands, Inc., 344 NLRB 252, 253 (2005) (internal quotations omitted). The
burden of proof is particularly heavy where the margin of victory is overwhelming. Avis Rent-A-
Car System, 280 NLRB 580, 581, 582 (1986); Millard Processing Services v. NLRB, 2 F.3d 258,
264 (8th Cir. 1993), cert. denied, 510 U.S. 1092 (1994). In evaluating whether a party’s
misconduct has “the tendency to interfere with employees’ freedom of choice,” the Board
considers: (1) the number of incidents of misconduct; (2) the severity of the incidents and
whether they were likely to cause fear among employees in the bargaining unit; (3) the number
of employees in the bargaining unit subjected to the misconduct; (4) the proximity of the
misconduct to the election date; (5) the degree of persistence of the misconduct in the minds of
the bargaining unit employees; (6) the extent of dissemination of the misconduct among
bargaining unit employees; (7) the effect, if any, of misconduct by the opposing party to cancel
out the effects of the original misconduct; (8) the closeness of the final vote; (9) the degree to
which the misconduct can be attributed to the party. See, e.g., Cedars-Sinai, supra; Taylor
Wharton Div., 336 NLRB 157, 158 (2001).
Here, we are considering a single incident with only meager evidence of dissemination.
The Employer’s prehearing evidence in support of the objections, cited by the Regional Director,
indicates that the employee involved in this incident “states that the following day he told at least
100 of his fellow employees about this incident.”26 The evidence does not support this. Wanek
told a lot of pit bosses. But the evidence shows that only a few, perhaps as few as 2, perhaps 5
voting eligible dealers heard about the incident. One testified, and she remembered no details
at all, just that Wanek felt he had been threatened. Assuming it occurred, the comments and

26I have not considered this “statement” in terms of considering credibility, as I do not know
the source of the Region’s information and neither Wanek nor anyone else was questioned
about it. I mention it only to point out that the dissemination did not live up to the billing it
received in the Region’s investigatory phase and which, presumably, was a part of the basis for
ordering a hearing.
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actions of the UAW organizers constituted misconduct. But there were no threats of violence.
The questioning of how Wanek was going to vote, was, by itself, of no consequence, although
the insistence that he must reveal his intent was clearly improper. The expressed concern that
Bally’s dealers would end up like the Hilton dealers was (and was understood as) only the view
of union advocates that it would be in the dealer’s interest for the Union to win the election. The
initial refusal to leave the property was quickly abandoned. The following of Wanek to the bus
stop was also, quickly abandoned. The assertion that Wanek and others would be “the first to
go” if the Union won the election is the nub of the objection. There is, however, no evidence
that anyone else was subjected to this threat. In this case, and given the isolated nature of the
misconduct, the limited dissemination to the voters (at least one of whom testified that she could
not remember the nature of the threats made to Wanek), the large size of the bargaining unit
and the substantial margin of victory, “it is virtually impossible to conclude that the election
outcome has been affected." Bon Appetit Management Co., 334 NLRB 1042, 1044 (2001)
(citations omitted). This high standard, applied where, unlike in this case, the misconduct is the
subject of an unfair labor practice finding, need not be, but is met here. Assuming, arguendo,
the misconduct occurred, the objection should be overruled.27
III. RECOMMENDATIONS
On these findings of fact and conclusions and on the entire record, I issue the following
recommendations:
The Employer's objections in the above matter should be overruled. As the tally of
ballots shows that the majority of valid votes counted have been cast for the Petitioner, it is
recommended that the Board certify the Petitioner as the collective-bargaining representative of
employees in the appropriate unit.28
Dated, Washington, D.C. October 18, 2007
____________________
David I. Goldman
Administrative Law Judge

27I recognize that a majority of the Board views a union’s threat to have an employee
discharged as a threat a reasonable employee could believe, notwithstanding that employees
work for the employer (not the union), and notwithstanding that the union’s threat could not be
carried out without the complicity of an employer, in this case one which has vigorously opposed
the union. Randell Warehouse of Arizona, 347 NLRB No. 56, slip op. at 4–5 (2006). But, at
least, given these mitigating factors, the threat cannot be viewed as being equal in seriousness
to an employer’s threat of discharge, which, in isolation, in a large bargaining unit, with a
decisive margin of victory, is not necessarily a basis for overturning an election. See, Werthan
Packaging, Inc., 345 NLRB No. 30 (2005); Caron Int’l Inc., 246 NLRB 1120 (1979).
28Any party may, under the provisions of Section 102.67 and 102.69 of the Board's Rules
and Regulations, file exceptions to this report with the Board in Washington, D.C., within
fourteen (14) days from the issuance of this report. Immediately upon filing of such exceptions,
the party filing the same shall serve a copy thereof on the other parties and shall file a copy with
the Regional Director. Exceptions must be received by the Board in Washington, D.C., by
November 1, 2007.