Bally's Atlantic City

National Labor Relations Board - Administrative Judge Opinions

Aug 21, 2008

04-CA-035304 (N.L.R.B. Aug. 21, 2008)

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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
v. Case 4–CA–35304
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, UAW
William Slack, Esq., (Region 4, NLRB)
of Philadelphia, PA, for the General Counsel
Charles E. Sykes, Esq., (Sandler and Sykes)
of Huston, TX, for the Charging Party
Gerald E. Einsohn, Esq., (Harrah’s Entertainment, Inc.)
of Las Vegas, NV, for the Respondent
DECISION
Statement of the Case
RICHARD A. SCULLY, Administrative Law Judge. Upon a charge filed by International
Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW
(the Union) on April 16, 20071 and an amended charge filed on June 15, the Regional Director
for Region 4, National Labor Relations Board (the Board), issued a complaint on June 27,
alleging that Bally’s Park Place, Inc., d/b/a Bally’s Atlantic City (Respondent), had committed
certain violations of Section 8(a)(3) and (1) of the National Labor Relations Act (the Act).
Respondent filed a timely answer denying that it had committed any violation of the Act.
A hearing was held in Philadelphia, Pennsylvania, on January 22 and February 20,
2008, at which all parties were given a full opportunity to examine and cross-examine witnesses
and to present other evidence and argument. Briefs filed on behalf of the General Counsel and
Respondent have been given due consideration. Upon the entire record and from my
observation of the demeanor of the witnesses, I make the following

1 All dates are in 2007 unless otherwise indicated.
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Findings of Fact
I. Jurisdiction
Respondent is a corporation engaged in the operation of a casino in Atlantic City, New
Jersey. During the 12 months preceding June 2007, in conducting its business operations,
Respondent received gross revenues in excess of $500,000 and purchased and received at its
Atlantic City casino goods valued in excess of $5,000 directly from points outside the State of
New Jersey. Respondent admits, and I find, that at all times material it was an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act and that the
Union was a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Section 8(a)(1) Allegations
The complaint alleges that Respondent violated Section 8(a)(1) of the Act on three
occasions when supervisors told an employee that he could not talk about the Union on the
casino floor and on another occasion when a supervisor solicited employees’ complaints and
promised them increased benefits and improved conditions of employment if they refrained from
supporting the Union.
Jose Justiniano was employed by Respondent as a table game dealer at Bally’s Atlantic
City casino from June 2000 until he was terminated on April 9, 2007. He testified that he
learned that the Union was attempting to organize dealers in various Atlantic City casinos in
November 2006. He attended numerous meetings held by the Union, became a supporter of
the Union, and signed an authorization card. He spoke to other Bally’s employees on a daily
basis about the need for representation by the Union, in the employees’ lounge, in the cafeteria,
and as they were coming and going to work. He appeared in a DVD prepared and distributed
by the Union to all dealers in Atlantic City.
Dealers at Bally’s casino are assigned to work games in varying numbers, depending on
the nature of the game. Blackjack for example requires only a single dealer, while craps has
three dealers as well as two supervisors, a “floor person” and a “pit boss.” A game in which
customers are present and playing is referred to as a “live game,” while a “dead game” is one in
which no customers are present and playing the game. The evidence establishes that it was
common practice for dealers working on a dead game to carry on social conversations with
other dealers and/or supervisors and that there were no limitations on the subjects they could
discuss.
Justiniano testified that during January 2007 he was working a crap table and during a
dead game he had a conversation with another dealer named Camille. They talked about the
UAW organizing effort at the Hilton Casino, saying, that it was doing well, that a lot of cards had
been signed, and that an election was due soon. Floor person Brian Hinchey told them that
they were not allowed to talk about the Union on the casino floor. They stopped talking about
union activity and changed to a different subject.
Justiniano testified that on March 19 he began work at 6:00 a.m. He was assigned to Pit
7, which was subsequently shut down, and he was moved to Pit 8 to relieve another dealer at
about 6:40 a.m. At about 6:50 a.m., Justiniano told floor person Irina Grau that he was due for a
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break in 10 minutes.2 Grau told him that he could take a break at 7:20 a.m., when the person
he had relieved was scheduled for a break, or he could take a 10-minute right away. Justiniano
said that was unacceptable, as he was entitled to a 20-minute break, and wanted to have it.
Grau said that he could “take it or leave it.” Justiniano said he would “leave it and Grau said he
should take his break at 7:20 a.m. Justiniano responded that if he had to take a late break, he
would come back late from his break. Grau said that if he did she would write him up.
Justiniano told her not to threaten him on a live game and Grau repeated that she would write
him up. Justiniano told her that was why they needed a union, because people like her were
always harassing and threatening people. Grau began yelling at him, saying, that he wasn’t
allowed to talk about “union” on the casino floor and that he could be “fired for talking about
unions.” A short while later, Justiniano was relieved by another dealer and told to report to
supervisor Barbara Jolly at Pit 4. Jolly asked what had happened between him and Grau and
he told her. Jolly said that he was “not allowed to talk about the Union on the casino floor
whatsoever.” On March 22, Justiniano was escorted to speak with shift manager Jeffery Hunter
who asked him about the incident with Grau. Hunter told Justiniano he had acted
unprofessionally and that if he had a similar problem with a floor person he should say nothing
and report it to a pit boss. In discussing Justiniano’s unprofessional conduct, Hunter said that
Justiniano should not be talking about the Union on the casino floor. Hunter gave Justiniano a
written warning for acting “in an unprofessional manner in front of patrons and fellow employees
on a live game.” The warning states that Justiniano should “never speak of company business
in front of patrons.”
Justiniano testified that in late March or early April while in the employee cafeteria he
went over to talk to some Latino employees with whom he “always” sat, including, floor person
Felicia Catala and a couple of dealers. During the conversation, Catala said that floor persons
had just had a meeting with pit bosses and other “higher up management” in which the floor
persons were asked “the best way we can satisfy dealers” so they would not join the Union.
Justiniano told her there was nothing to do because “the damage is already done.”
Analysis and Conclusions
Justiniano’s detailed, credible, and uncontradicted testimony establishes that in January,
when he discussed union activity with another dealer during a dead game, they were told by
supervisor Brian Hinchey that they could not talk about union activity on the casino floor. There
is no dispute that during dead games dealers are allowed to have social conversations with one
another. Respondent argues that there was no violation because Justiniano was not prevented
from discussing the Union as a result of Hinchey’s statement and he was not disciplined for
engaging in this conversation. In fact, Justiniano and the other dealer ceased conversing about
union activity when told to do so by their supervisor. It is a violation of Section 8(a)(1) of the Act
to prohibit employees from discussing union topics when they are permitted to talk about other
nonwork-related matters while they are working. E.g., ITT Industries, 331 NLRB 4 (2000);
Rock-Tenn Co., 315 NLRB 670, 681-682 (1994); Jennie-O Foods, Inc., 301 NLRB 305, 316
(1991). The Board uses an objective standard to determine whether an employer’s action is
coercive and a violation of the Act. The test is not whether the coercion succeeded but whether
the employer engaged in conduct which may reasonably tend to interfere with the free exercise
of employee rights under the Act. Williamhouse of California, Inc., 317 NLRB 699, 713 (1995).

2 Dealers get a 20-minute break every hour.
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The fact that the employees here complied with the supervisor’s directive to stop talking about
the Union shows that the statement was coercive. It may also explain why the employees were
not disciplined for engaging in the conversation. I find that Hinchey’s statement that the
employees could not talk about the Union on the casino floor was unlawful.
The allegations involving Grau initially arose from a dispute about Justiniano’s break
time. An argument ensued between the two and Grau eventually threatened to discipline
Justiniano. This prompted Justiniano’s comment, that this was why the dealers needed a union,
and Grau’s response, that he was not allowed to talk about the Union on the casino floor and
could be fired for doing so. Jolly, the next level of supervision, also told Justiniano he was not
allowed to talk about the Union on the casino floor. A few days later, when shift manager
Hunter discussed the written warning he gave Justiniano in connection with this incident, he
said that Justiniano should not be talking about the Union on the casino floor. I accept
Justiniano’s credible descriptions of the conversations with Grau, Jolly, and Hunter. None of
those supervisors was called as a witness at the hearing and Justiniano’s testimony is
uncontradicted.3
It appears that, regardless of whether Justiniano was right or wrong on the break issue,
he may have acted in an unprofessional manner when he argued with Grau in front of
customers on a live game. However, the issue here is not whether Justiniano acted
unprofessionally but whether, under the circumstances, the statements of Grau, Jolly, and
Hunter, that Justiniano could not talk about the Union on the casino floor and could be
disciplined for doing so, violated the Act. While there is no credible evidence in this record that
Justiniano made his comments about dealers needing a union to the customers at the game he
was dealing, rather than to Grau, that is also irrelevant.4 The supervisors’ statements in issue
involve a blanket prohibition against discussing union matters on the casino floor, which as
discussed above, is coercive and unlawful under the circumstances presented here, as
employees are permitted to discuss other nonwork-related subjects with one another on the
casino floor. None of the supervisors purported to limit the prohibition on discussing union
matters to live games or to discussions with customers. Consequently, their comments violated
Section 8(a) (1) of the Act. 5

3 I do not credit the ex-parte, unsworn, hearsay statements in the record, which Grau and
Jolly apparently gave to the employer about their conversations with Justiniano, or find them
sufficient to discredit Justiniano’s testimony at the hearing. Similarly, the written warning Hunter
gave Justiniano makes no mention of any comment about the Union. Respondent gave no
explanation for its failure to call these supervisors as witnesses and I find its reliance on such
evidence leads to an adverse inference. Reliance on weaker evidence when purportedly
stronger evidence is available warrants such an inference. Jennie-O Foods, 301 NLRB 305,
333 (1991). I find no merit in Respondent’s argument that Justiniano’s refusal to sign the written
warning or to add any exculpatory comments about talking about the Union somehow
undermines his credibility.
4 Contrary to the assertion in Respondent’s brief, Justiniano did not testify that he “spoke to
customers on a live game regarding the union.”
5 I do not agree with Respondent’s contention that in his testimony Justiniano admitted that
Jolly told him “he could not talk about the Union on a live game.” The referenced testimony, at
Tr. 95, l. 25 – Tr. 96. l. 2, an answer to a single leading question, is ambiguous at best with no
detail or context.
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An employer interferes with employee rights and violates Section 8(a)(1) of the Act when
it solicits grievances from employees during a union organizing campaign with a promise to
correct grievances, increase benefits, or improve their terms and conditions of employment.
Triec, Inc., 300 NLRB 743,747 (1990). Justiniano’s credible and uncontradicted testimony
establishes that during a break floor person Catala told him and two other dealers that she had
been in a meeting in which floor persons were asked by management officials how they could
“satisfy dealers” so that they would not join the Union.6 It is true, as Respondent points out, that
Catala made a statement about what occurred at the meeting and did not ask the dealers any
questions. However, under the circumstances, where Catala raised the subject and said that
she was “very happy” about what occurred at the meeting, she was obviously seeking a
response from the dealers, which in fact she got from Justiniano. While Catala did not
specifically say that Respondent would remedy the dealers’ grievances, when an employer
undertakes to solicit employees’ grievances during an organizational campaign, there is a
“compelling inference” that it is implicitly promising to remedy those grievances and thereby
influence the employees to vote against union representation. Traction Wholesale Center Co.,
328 NLRB 1058 (1999). That is exactly what Catala told the dealers the Respondent wanted to
do. I find that Catala’s comments violated the Act.
B. Section 8(a)(3) and (1) Allegations
Justiniano was terminated for allegedly violating a work rule requiring employees to be
”honest and forthcoming in all communications.” Specifically, he was accused of telling
Respondent that he was taking leave pursuant to the Family and Medical Leave Act (FMLA) to
care for his daughter but instead attended a Union rally during the time he was on such leave.
The General Counsel asserts that Justiniano was terminated for engaging in union activity or,
alternatively, because Respondent mistakenly believed that Justiniano had abused FMLA when
he engaged in the protected activity of attending the Union rally.
As a part of its effort to organize dealers in Atlantic City, the Union conducted a rally at
the Trump Plaza casino on March 31, the day of a representation election involving dealers
employed there. The purpose of the rally was to show support for the dealers voting in that
election as they arrived for or left after their shifts. It involved about 60 people carrying pro-
Union signs who stood outside the entrance to the Trump Plaza which is located nearby
Respondent’s casino. The rally was to last from about 10:30 a.m. until about 12:15 p.m.7
Justiniano testified that he arrived at the rally about 10:00 a.m. and stood across the street from
the Trump Plaza carrying a pro-Union sign.
Justiniano has a 13-year old daughter who suffers from severe asthma which requires
her to use a device for treatment every 4 hours during the day. He had previously taken FMLA
leave to care for his daughter while employed by Respondent without any problems. On March
31, he was scheduled to work as a dealer from 12 noon to 8 p.m. At about 9 p.m. on March 30,
his daughter’s mother, Awilda Concepcion, with whom she lives, called Justiniano and asked
him to care for their daughter at his residence on the following day and he agreed. At about 6

6 Catala was not called as a witness. There is no evidence rebutting that such a meeting
was held or establishing a past practice of Respondent soliciting employee grievances.
7 According to Union organizer Thomas Ashton, that was the usual schedule for daytime
rallies conducted by the Union at various casinos on the day an election was to be held and on
other occasions.
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a.m. on March 31, Justiniano called Bally’s and left a message on an answering machine that
he would be taking FMLA leave that day. He called back about 3 hours later and spoke to
someone named Judy in the scheduling office who confirmed that his message had been
received.
Justiniano testified that he went to the union rally outside the Trump Plaza at about
10:00 a.m. he left the rally at 11:30 or 12:00 noon. After leaving, he rode less than a mile to the
Union hall with UAW representatives Tom Ashton, Ron Adams, Joe Robinson, and Cassandra
Wade in Adams’ vehicle. From there he went home, which is about one block away and arrived
there at about 5 or 10 minutes after 12. His daughter was dropped off at about 12:30 and
remained with him until about 5:30 or 6 p.m. when her mother picked her up. Shortly after he
began work on April 9, he was told to go see Vice President of Table Games Michael May in his
office. May escorted Justiniano to the office of Director of Operations Richard Tartaglio.
Tartaglio asked Justiniano if he had called out on FMLA leave on March 31 to care for his
daughter and Justiniano said that he had. Tartaglio asked if he had attended the Trump Plaza
rally on that date and Justiniano said that he had. Tartaglio said he was not allowed to use
FMLA leave to attend a rally and had abused FMLA. Justiniano said that he had attended the
rally on his time not company time. May said that he should have come into work at noon and
left at 12:15 to care for his daughter at 12:30. Tartaglio told Justiniano that he was suspended
pending investigation and they would get back to him in a couple of days. On April 11, May
called Justiniano and told him he was terminated. Justiniano subsequently received a
termination notice in the mail.
Joseph Mangiaracina is employed by Respondent as a pit manager. He testified that, as
he was driving to work at Bally’s casino at 11:45 a.m. on March 31, he saw a crowd of people in
front of the Trump Plaza. Among them was Justiniano holding a union sign. When he arrived at
his work area, he encountered May who asked him if he had spoken to Justiniano about an
incident that had happened the day before. May had observed Justiniano, who was on a dead
game talking to another dealer on a live game. May had told Mangiaracina to tell him that he
was not supposed to do that. Mangiaracina told May that he had not had a chance to talk to
Justiniano about the incident but that he had just seen him in front of the Trump Plaza holding a
UAW sign. May told him that Justiniano had called off on FMLA leave that day.
May testified that on March 30 he had seen Justiniano speaking to another dealer who
was working a live game.8 He told Mangiaracina to speak to Justiniano about this. When he
saw Mangiaracina heading to his pit on March 31, he asked if Mangiaracina had spoken to
Justiniano about talking on a live game. Mangiaracina responded that he had not had a chance
to do so and also said that he had seen Justiniano out in front of the Trump Plaza with a UAW
sign. May told Mangiaracina that Justiniano had called in for FMLA leave that day.
May said he undertook to investigate whether Justiniano had used FMLA leave in order
to be present in front of the Trump Plaza on March 31. On April 9, he escorted Justiniano to
Tartaglio’s office where Tartaglio asked Justiniano if he understood what FMLA leave is for and
what the law was. Justiniano responded that he did. Tartaglio said that Justiniano had been
seen at the rally outside the Trump Plaza at quarter to 12. Justiniano said that he was at the
rally until it ended at about 12:20 p.m. and then went to take care of his daughter. Tartaglio told
Justiniano that he was suspended for abusing the FMLA policy and that they would make a

8 Dealers are not supposed to speak to one another on a live game since it may distract
them from taking care of the customers on the game.
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decision and let him know what the decision was. May and Tartaglio discussed that Justiniano
had misused FMLA leave, that every employee who had been found to have abused FMLA had
been terminated, and that they should be consistent in how this problem was handled. May
subsequently telephoned Justiniano and told him he was terminated.
Tartaglio testified similarly that when he asked Justiniano what time he left the union
rally, his response was 12:20. He said that he considered that the critical question and that, if
Justiniano had said that he left the rally at any time prior to the start of his shift at 12 noon, he
would not have been subject to disciplinary action. However, since Justiniano had requested
FMLA leave to care for his daughter and had used it for a different purpose, attending the union
rally, albeit, for only 20 minutes, he determined that Justiniano should be terminated. Both May
and Tartaglio denied that May told Justiniano he should have come into work on March 31 and
left at 12:15 to care for his daughter.
Analysis and Conclusions
The complaint alleges that Justiniano was terminated because he supported and
assisted the Union, specifically, for attending the rally on March 31, and to discourage
employees from engaging in such activities in violation of Section 8(a)(3) and (1) of the Act.
Respondent asserts that Justiniano was terminated for violating its strict policy prohibiting
employees from abusing FMLA, by using leave provided under that statute for unrelated
purposes.
In cases where an employer’s motivation for a personnel action is in issue, it must be
analyzed in accordance with the test outlined by the Board in Wright Line, 251 NLRB 1083
(1980) enf’d 662 F. 2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983). Under Wright Line, the General
Counsel must persuade the Board that animus toward protected activity on the part of
employees was a substantial or motivating factor in the employer’s decision. Once that has
been done, the burden shifts to the employer to demonstrate that it would have taken the same
action even in the absence of protected activity on the employees’ part. Sears, Roebuck Co.,
337 NLRB 443 (2002); Manno Electric, 321 NLRB 278, 280 fn. 12 (1996). The General
Counsel’s initial burden is met by proof of protected activity, employer knowledge of that activity,
and employer animus toward it. W.R. Case & Sons Cutlery Co., 307 NLRB 1457, 1463 (1992).
There is no dispute that at the time of Justiniano’s discharge Respondent was aware
that the Union was attempting to organize its employees as a part of an effort to organize
dealers at casinos throughout Atlantic City. There is also no dispute that it was aware of
Justiniano’s support for the Union as his discharge was a direct result of Respondent’s learning
that he was attending a pro-Union rally on March 31.9 Direct evidence of unlawful motivation is
seldom available and it may be established by circumstantial evidence and the inferences
drawn therefrom. E.g., Abbey Transportation Services, 284 NLRB 698, 701 (1987); FPC
Moldings, Inc. v. NLRB, 64 F. 3d 935, 9942 (4th Cir. 1994); Shattuck Denn Mining Corp. v.
NLRB, 362 F. 2d 466, 470 (9th Cir. 1966). The timing of an employer’s action can be
persuasive evidence of its motivation. Masland Industries, 311 NLRB 184, 197 (1993);

9 Knowledge of the pro-Union statements by Justiniano which led to the Section 8(a)(1)
violations found herein by its supervisors is also imputable to Respondent. Glasforms, Inc., 339
NLRB 1108, 1118 (2003).
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Limestone Apparel Corp., 255 NLRB 722, 736 (1981). Justiniano was discharged shortly after
he was observed attending the union rally. The violations of Section 8(a)(1) found herein
constitute evidence of animus on Respondent’s part. Farm Fresh, Inc., 301 NLRB 907 (1991).
Accordingly, I find that the General Counsel has established a prima facie case that the
discharge of Justiniano was discriminatory.
I also find that Respondent has established that it would have discharged Justiniano
even in the absence of the union activity on his part. This issue turns on when Justiniano left
the union rally on March 31. Prior to the April 9, Respondent knew only that Justiniano was at
the rally at 11:45 a.m., based on the report by Mangiaracina. The credible and mutually
corroborative testimony of May and Tartaglio was that, at the meeting in Tartaglio’s office on
April 9, Tartaglio told Justiniano he had been seen at the union rally at 11:45 a.m. and asked
him what time he left. Justiniano responded that he left the rally at 12:20 p.m. Based on that
information, they concluded that Justiniano was at the rally 20 minutes after his shift was to
have started that day and meant that he had spent 20 minutes of FMLA leave time attending the
rally.
At the hearing, Justiniano first testified that he left the rally “around 11:30 or 12:00
o’clock” and got home 5 to 10 minutes later. He also said that, on April 9 when Tartaglio asked
him what time he was at the rally, his response was “in the morning time.” Union
representatives Ashton and Robinson, with whom Justiniano rode to and from the rally, testified
that they and Justiniano left the rally at around 11:45 a.m. According to Ashton, this type of rally
usually runs until 12:15 p.m., after the grave shift comes out of the casino. He said that on
March 31 they left “a little bit early” because Justiniano had to get home.
Having observed the witnesses and considering all of the evidence, I credit the detailed,
consistent testimony of Mangiaracina, May, and Tartaglio. Mangiaracina said that he was sure
of the time that he observed Justiniano at the rally as he was running late that morning and was
looking at the clock on his dashboard of his vehicle. He said that at 11:45, he observed
Justiniano at the rally holding a UAW sign. The testimony of Ashton and Robinson appeared
contrived to support Justiniano. Neither was precise about the time they arrived at or left the
rally and there does not appear to be any reason why they would have a specific recollection of
those times. Ashton’s direct testimony that they left the rally because Justiniano had to go
home appeared to be an afterthought. Justiniano’s testimony about when he arrived at and left
the rally was no more precise. He said they arrived at 10:00 a.m., a half-hour earlier than
Ashton and could not pinpoint when they left.
Justiniano’s testimony about what took place during the meeting with May and Tartaglio
on April 9 was vague and inconsistent.10 He first testified that there was a discussion about
FMLA and that he was accused of taking FMLA leave to attend the rally, which he denied,
saying, that he attended the rally on his own time. After hearing the testimony of May and
Tartaglio that he told them he left the rally at 12:20, he testified on rebuttal that he was asked
what time he left and he answered “around 11:30 to 11:45.” As noted above, his original
testimony was that he left “around 11:30 to 12:00 o’clock.” Although I credit his detailed
testimony about the incidents with Hinchey, Grau, Jolly, and Catala, there was no credible
testimony to the contrary. It is well-settled that crediting a part of a witness’ testimony does not
preclude the trier of fact from not crediting other parts. E.g., PBA, Inc., 270 NLRB 998 fn. 7

10 I did not believe his self-serving claim that May told him he should have come to work on
March 31 for 15 minutes and then gone home on leave, which appeared designed to portray
May and Respondent’s FMLA policy as unreasonable.
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(1984); Maxwell’s Plum, 265 NLRB 211, 216 fn. 14 (1981). Here, the pertinent contradictory
testimony by May and Tartaglio was consistent and credible and establishes that Justiniano
admitted that he was at the rally for 20 minutes after his FMLA leave had begun. The General
Counsel’s attacks on the credibility of May and Tartaglio, based on alleged inconsistency
because Tartaglio said Justiniano did not say that he had cared for his daughter on March 31,
are not persuasive. The issue during the April 9 meeting was not whether Justiniano had cared
for his daughter at some time on March 31, a legitimate use of FMLA leave, but whether he was
at the union rally after the start of his shift while he was on such leave. His admission that he
was at the rally until 12:20 (without his daughter) established that he had used a portion of the
FMLA leave improperly.
Respondent has established that it has long had a zero tolerance policy with respect to
employees who are found to have abused FMLA leave by doing something other than for what
the leave was requested while on such leave, even for a relatively brief period. Its consistent
policy and practice has been to discharge anyone found to have abused such leave. The
evidence shows that Respondent has terminated an employee found to have abused FMLA
leave by claiming it in order to arrive at work 45 minutes late when in fact she was using the
time to work at another casino. Another employee was terminated for claiming such leave in
order to leave work early work because she was ill when in fact she left to go to work at another
casino. An employee who claimed such leave in order to provide care for his sick wife was
terminated after Respondent found out he used the time to operate a bed and breakfast
business at his residence and that his wife did not need constant care. Two employees were
terminated for claiming such leave in order to operate a canoe rental business. The
seriousness of Respondent’s concern over abuse of FMLA leave is demonstrated by the
credible testimony of May and Tartaglio and by evidence that it has spent thousands of dollars
to investigate cases of suspected abuse by its employees, in some cases using private
detectives to investigate them.
I find that Respondent has established that Justiniano abused the FMLA leave he had
requested to care for his daughter by using at least 20 minutes of such leave to attend the UAW
rally on March 31.11 I also find that it has established that it terminated Justiniano because of
that abuse in accordance with an established, nondiscriminatory policy and not because of his
support for the Union. While Justiniano’s attendance at the Union rally while on FMLA leave
obviously was the reason for his discharge, under these circumstances, I find that his activity
was outside the protection of the Act. See NACCO Materials Handling Group, 331 NLRB 1245
(2000). I shall recommend that this allegation be dismissed.
The General Counsel argues in the alternative, citing NLRB v, Burnup & Sims, Inc., 370
U.S. 21 (1964), that even if Justiniano’s discharge was not discriminatory and based on
Respondent’s union animus, it violated Section 8(a)(1) of the Act because even if it had a good
faith belief that Justiniano abused FMLA leave by attending the UAW rally, it was mistaken.
I find this argument fails here because Justiniano did in fact abuse FMLA leave by using a
portion of it to attend the rally and not for the reason he requested it, to care for his daughter.
I find that Gulf & Western Mfg. Co., 232 NLRB 61 (1977), cited by the General Counsel, is
distinguishable although, perhaps, subtlely. There, an employee called off work because of an
asthma attack and later the same day felt well enough to be driven to an NLRB regional office to
file a charge against the employer. The employer suspended the employee because it believed

11 There is no evidence that Respondent based its decision to terminate Justiniano to any
extent on the fact that he used less than the 8 hours of FMLA leave he had requested while
actually involved in caring for his daughter.
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he had falsified the reason for his absence from work. Citing Burnup & Sims, the Board found a
violation, concluding, that the employer’s good faith but mistaken belief that the employee had
lied about his physical condition. Here, Respondent’s belief that Justiniano had abused FMLA
leave was not mistaken. He admitted that he had attended the Union rally and was there for at
least 20 minutes while he was on the FMLA leave he had requested to care for his daughter.
According to the certificate in the record (GC Ex. 10), to care for his daughter because of her
“serious health condition” was the only reason Justiniano was authorized to take FMLA leave in
the first place. He clearly was not doing that while at the rally. Unlike the employer in Gulf &
Western, Respondent did not discharge Justiniano because it mistakenly believed he had lied
about the reason he requested FMLA leave. It discharged him because he used that leave for a
purpose other than for what he was permitted to use it. In doing so, Justiniano abused FMLA
leave and he was disciplined in accordance with Respondent’s long-standing policy. I shall
recommend that this allegation be dismissed.
Conclusions of Law
1. Respondent, Bally’s Park Place, Inc., d/b/a Bally’s Atlantic City, is an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Union was a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by telling employees that they could
not talk about the Union or union matters on the casino floor and by soliciting grievances from
employees and promising to remedy those grievances in order to dissuade them from
supporting the Union.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent did not engage in unfair labor practices alleged in the complaint not
specifically found herein.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended
ORDER12
The Respondent, Bally’s Park Place, Inc., d/b/a Bally’s Atlantic City, Atlantic City, New
Jersey, its officers, agents, successors, and assigns, shall

12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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1. Cease and desist from
(a) Telling employees that they that they cannot talk about the Union or union
matters on the casino floor.
(b) Soliciting grievances from employees and promising to remedy those
grievances in order to dissuade them from supporting the Union.
(c) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facility in Atlantic City,
New Jersey, copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms
provided by the Regional Director for Region 4, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since January 2007.
(b) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found herein.
Dated, Washington, D.C. August 21, 2008
____________________
Richard A. Scully
Administrative Law Judge

13 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT tell our employees that they cannot talk about International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America, UAW, or any other
union on the casino floor.
WE WILL NOT solicit grievances from our employees and promise to remedy those grievances
in order to dissuade them from supporting the Union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
BALLY’S PARK PLACE, INC.
d/b/a BALLY’S ATLANTIC CITY
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, One Independence Mall, 7th Floor
Philadelphia, Pennsylvania 19106-4404
Hours: 8:30 a.m. to 5 p.m.
215-597-7601.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 215-597-7643.
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