Bally's Atlantic City

National Labor Relations Board - Board Decisions

Sep 30, 2010

355 N.L.R.B. 1319 (N.L.R.B. 2010)

BALLY’S ATLANTIC CITY
355 NLRB No. 218
1319
Bally’s Park Place, Inc. d/b/a Bally’s Atlantic City
and International Union, United Automobile,
Aerospace and Agricultural Implement Work-
ers of American, UAW. Case 4–CA–35304
September 30, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On August 21, 2008, Administrative Law Judge Rich-
ard A. Scully issued the attached decision. The General
Counsel and the Charging Party each filed exceptions
and a supporting brief. The Respondent filed an answer-
ing brief, and the General Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this decision and to
adopt the judge’s recommended Order as modified and
set forth in full below.2
The judge found that the 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 dis-
suade them from supporting the Union. In the absence of
exceptions, we adopt those findings.
The judge dismissed the General Counsel’s allegation
that the Respondent violated Section 8(a)(3) and (1) by
discharging Jose Justiniano after he used the first 20
minutes of a shift for which he had requested leave pur-
suant to the Family and Medical Leave Act (FMLA) to
attend a union rally prior to meeting his asthmatic child.
Applying Wright Line,3 the judge found that the General
Counsel had established that Justiniano’s union activity
was a motivating factor in the Respondent’s decision to
discharge him. The judge further found, however, that
the Respondent met its Wright Line rebuttal burden by
establishing that it would have discharged Justiniano,

1 The General Counsel and Charging Party have implicitly excepted
to some of the judge’s credibility findings. The Board’s established
policy is not to overrule an administrative law judge’s credibility reso-
lutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
2 We shall amend the judge’s conclusions of law and remedy to con-
form to our findings. We shall also substitute a new Order and notice
for that of the judge.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
even absent his protected activity, under its “zero-
tolerance policy” of discharging employees who used
FMLA leave for unauthorized purposes.
We reverse the judge’s dismissal of that allegation.
We find, for the reasons explained below, that the Re-
spondent did not demonstrate that it would have dis-
charged Justiniano even absent his protected conduct.
Accordingly, the discharge violated Section 8(a)(3) and
(1).
I. RELEVANT FACTS
The Respondent employed Justiniano as a table game
dealer at its casino in Atlantic City. Justiniano attended
numerous meetings held by United Auto Workers (the
Union) during its attempt to organize dealers at various
Atlantic City casinos, including the Respondent’s.
Justiniano also signed an authorization card, spoke to
other employees about the need for union representation,
and appeared in a DVD prepared and distributed by the
Union.
Justiniano spoke openly of his support for the Union
while working at the Respondent’s casino.4 In January
2007,5 Justiniano was speaking with another employee
about the Union’s organizing effort while working a
“dead” table game, i.e., one in which no customers are
present and playing. Although it is undisputed that deal-
ers are allowed to have social conversations with one
another during dead games, Justiniano’s supervisor told
the two employees that they could not talk about unions
while on the casino floor.
On March 19, Justiniano got into a dispute with a
manager over his break time. After the manager threat-
ened to discipline him, Justiniano responded that the dis-
pute showed why the employees needed a union. The
manager began yelling at Justiniano, saying that he was
not allowed to engage in such talk on the casino floor
and that he could be “fired for talking about unions.” A
short while later, a supervisor told Justiniano that he was
“not allowed to talk about the Union on the casino floor
whatsoever.” On March 22, a shift manager told Justin-
iano that he should not be talking about the Union on the
casino floor and gave him a warning for acting “in an
unprofessional manner.”
On March 31, Justiniano was scheduled to work from
12 noon until 8 p.m. At about 9 p.m. on March 30,
Justiniano received a call from the mother of his 13-year-
old daughter, with whom his daughter lives, asking him

4 The following discussion of Justiniano’s union activity and the Re-
spondent’s reaction thereto, which the judge found to violate Sec.
8(a)(1) of the Act, is set forth for background and for the support it
lends to the judge’s animus finding, infra. As noted above, the Re-
spondent did not except to those findings, i.e., they are undisputed.
5 All dates are in 2007.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1320
to care for the daughter at his residence the following day
beginning at 12:30 p.m. Justiniano’s daughter suffered
from severe asthma that required treatment every 4
hours. Justiniano had previously taken FMLA leave to
care for her under similar circumstances. At about 6 a.m.
on March 31, Justiniano called the Respondent and left a
message that he would be taking FMLA leave that day.
He called back 3 hours later to confirm that his message
had been received. The Respondent does not suggest
that Justiniano failed to comply in any way with the pro-
cedure for taking FMLA leave or that caring for his
daughter was not a proper use of such leave.
Later that day, the Union conducted a rally outside the
Trump Plaza casino as part of its campaign to organize
Atlantic City’s casino dealers. The rally lasted from
about 10:30 a.m. until about 12:15 p.m. Justiniano at-
tended the rally, testifying that he arrived there about 10
a.m. and stood across the street from the Trump Plaza
carrying a prounion sign. At 11:45 a.m., Joseph Man-
giaracina, a manager for the Respondent, drove by the
rally on his way to work and observed Justiniano holding
the sign.
When Mangiaracina got to work, Michael May, the
Respondent’s vice president of table games, asked him if
he had spoken to Justiniano about an unrelated event that
had occurred the previous day. Mangiaracina told May
that he had not had a chance to do so but that he had just
seen Justiniano in front of the Trump Plaza holding a
UAW sign. May responded that Justiniano had called in
to take FMLA leave that day.
Nine days later, on April 9, May escorted Justiniano to
the office of Richard Tartaglio, the Respondent’s director
of operations. There, Tartaglio told Justiniano that he
had been observed at 11:45 a.m. on March 31 at the rally
outside Trump Plaza. Justiniano acknowledged that he
was at the rally until it ended at about 12:20 p.m. and
then went home to care for his daughter. Justiniano testi-
fied that May told him he should have reported for work
at 12 and left at 12:15 p.m. to care for his daughter, but
both May and Tartaglio denied that May made such a
statement and the judge credited their testimony.
Based on the information provided by Justiniano, Tart-
aglio and May concluded that Justiniano had been at the
rally for 20 minutes after the start of his scheduled shift
and, therefore, that he had spent 20 minutes of FMLA
leave time attending the rally. Tartaglio told Justiniano
that he was suspended for abusing the FMLA policy. On
April 12, the Respondent terminated Justiniano for “vio-
lation of Work Rule Number 3 in the employee hand-
book stating that employees will be honest and forthcom-
ing in all communication.” At the hearing, Tartaglio
testified that Justiniano would not have been subject to
discipline if he had told him that he left the rally at any
time before the start of his shift at 12 noon.6
The Respondent does not have a written policy directly
dealing with the misuse of leave. Nor is there any evi-
dence that the Respondent had announced such a policy
to employees. The Respondent nevertheless claimed that
its past practice established a “zero-tolerance policy”
regarding abuse of FMLA leave.
The Respondent produced evidence showing that it
had discharged nine employees after discovering that
they had used family or medical leave inappropriately.

 One employee requested 45 minutes of FMLA
leave to care for her own serious health condition
but used the leave to work at another casino and
avoid being considered late for her shift with the
Respondent.

 One employee requested FMLA leave to depart
work early after claiming to be ill but used the
leave to avoid being late for a shift at another ca-
sino.

 One employee requested extended FMLA leave to
provide care for his wife’s serious health condition
but used the leave to operate a bed and breakfast.

 One employee requested medical leave to care for
his own serious health condition but used the leave
to perform construction work.

 One employee requested a 3-month medical leave,
claiming that he could not work because of his se-
vere osteoarthritis, but used the leave to work as a
massage therapist.

 Two supervisors requested intermittent family
leave but used the leave to operate a canoe rental
business.

 One employee requested family leave to care for
her daughter’s medical condition but used the
leave to attend her daughter’s birthday party.

 One employee requested FMLA leave to care for
the serious health condition of her father but re-
mained on leave for a month after her father died.

6 In its exceptions brief, the Respondent points out that it is undis-
puted that Justiniano’s daughter was picked up from his house at 5:30
p.m., meaning that he was also not caring for her from 5:30 until 8 p.m.
There is no evidence, however, that the Respondent was aware of that
fact at the time it terminated him.
BALLY’S ATLANTIC CITY 1321
II. THE JUDGE’S DECISION
Applying Wright Line, supra, 251 NLRB at 1089, the
judge found that the General Counsel had established a
prima facie case that the Respondent discharged Justin-
iano because of his union activity. The judge observed
that it was undisputed that the Respondent was aware of
Justiniano’s support for the Union, as his discharge was a
direct result of the Respondent’s learning that he had
attended a union rally on March 31. The judge also
found that the General Counsel established the requisite
union animus through the timing of Justiniano’s dis-
charge and the Respondent’s two violations of Section
8(a)(1), both of which were directed at Justiniano.
The judge concluded, however, that the Respondent
would have discharged Justiniano even in the absence of
his union activity for “abus[ing] 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.” The judge found that the Respondent had a “zero-
tolerance policy” with respect to employees who were
found to have abused FMLA leave. The judge also
found that Justiniano’s “admission that he was at the
rally until 12:20 p.m. (without his daughter) established
that he had used a portion of the FMLA leave improp-
erly.” Accordingly, he dismissed the allegation.7
III. DISCUSSION
Contrary to the judge, we find that the Respondent did
not meet its burden of proving that it would have dis-
charged Justiniano even in the absence of his union ac-
tivity. Accordingly, we find that the Respondent violated
Section 8(a)(3) and (1).
Under Wright Line, supra, the General Counsel has the
burden of establishing that the employee’s protected ac-
tivity was a motivating factor in the adverse employment
action. Once the General Counsel makes that showing,
the burden of persuasion “shift[s] to the employer to
demonstrate that the same action would have taken place
even in the absence of the protected conduct.”
Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961

7 The judge rejected the General Counsel’s alternative argument,
made under NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964), that
Justiniano’s discharge violated Sec. 8(a)(1) because the Respondent’s
belief that he abused FMLA by attending the rally was mistaken. The
judge found that the Respondent did not discharge Justiniano based on
a mistaken belief that he had lied about his reason for requesting FMLA
leave, as the General Counsel contended. Rather, the judge found that
the Respondent discharged him for using a portion of his leave to attend
the rally.
We agree with the judge that there is no merit to the General Coun-
sel’s Burnup & Sims argument. The credited evidence supports the
judge’s finding that the Respondent did not discharge Justiniano be-
cause it believed—mistakenly or otherwise—that he had lied about his
reason for requesting leave.
(2004) (quoting Wright Line, supra (other internal cita-
tions omitted)).
Here, the evidence of a discriminatory motive is
strong. The Respondent discharged Justiniano, an out-
spoken union supporter, within days of observing him
engaging in protected activity at a prounion rally at a
neighboring casino. As shown, the Respondent’s man-
agers had unlawfully told Justiniano on three previous
occasions that he could not discuss the Union with other
employees on the casino floor, and he received a written
warning for doing so. Accordingly, the General Counsel
proved that the Respondent had antiunion animus and, in
particular, an animus towards Justiniano’s union activity.
Where, as here, the General Counsel makes out a strong
showing of discriminatory motivation, the respondent’s
rebuttal burden is substantial. See, e.g., Eddyleon
Chocolate Co., 301 NLRB 887, 890 (1991) (employer’s
economic defense for layoffs “falls far short of the sub-
stantial burden [it] shoulders in overcoming the General
Counsel’s powerful prima facie showing of discrimina-
tion,” including previous threats to lay off known union
supporters and evidence that the layoffs were acceler-
ated). The judge, however, did not consider the strength
of the General Counsel’s case in finding that the Re-
spondent met its Wright Line rebuttal burden. For the
reasons explained below, we find that the Respondent
did not establish that it would have discharged Justiniano
even absent his protected conduct.
To begin, the Respondent’s rebuttal rests almost en-
tirely on its assertion that it discharged Justiniano pursu-
ant to a “zero-tolerance policy” for dealing with FMLA
misuse. The Respondent, however, had no written pol-
icy—zero tolerance or otherwise—dealing with the mis-
use of leave, and there is no evidence that it ever an-
nounced such a policy to employees. Accordingly, the
Respondent’s defense actually rests on the purported
existence of a past practice of discharging employees for
misuse of FMLA leave.
Unlike the judge, we find that the evidence does not
show that the Respondent had an established past prac-
tice of discharging employees for conduct parallel to or
even similar to that engaged in by Justiniano. As de-
tailed above, the Respondent presented evidence that it
had terminated nine employees who requested family or
medical leave, but then used the leave for improper pur-
poses. In eight of the nine cases, the entirety of the re-
quested leave was used for an improper purpose. In the
ninth case, while the requested leave was originally used
for a proper purpose (the care of an ill father), the last
month of the leave was used for improper purposes after
the father died. At most, this evidence establishes that
the Respondent had a practice of terminating employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1322
who fraudulently requested or extended FMLA leave,
i.e., telling the Respondent that they required leave to
fulfill family responsibilities or out of medical necessity
and then using the leave for a completely different pur-
pose. None of the prior cases is even remotely similar to
that of Justiniano, who used his requested leave for a
proper purpose after leaving a union rally that extended
20 minutes into his shift in order to meet his daughter at
the time when she needed care. The evidence does not
establish a “zero tolerance policy” reaching conduct such
as that engaged in by Justiniano and thus does little to
rebut the strong evidence of discriminatory motive.
Justiniano did not intentionally and fraudulently re-
quest FMLA leave for a purpose not covered by the
FMLA. Rather, he requested leave and used the leave
for a proper purpose—to care for his daughter. To the
extent that Justiniano engaged in arguable misconduct
here, it was taking FMLA leave for the first half hour of
his 8-hour shift, as his daughter did not need care until
12:30 p.m. There is no evidence, however, that the Re-
spondent was concerned about Justiniano’s not using the
first 30 minutes of his leave to care for his daughter.
Indeed, the judge found that the Respondent had not ter-
minated Justiniano for that reason,8 and May and Tart-
aglio specifically denied that May told Justiniano that he
should have reported to work for the brief period before
his daughter needed him. Clearly, then, the Respon-
dent’s real concern was not that Justiniano spent 30 min-
utes doing something other than caring for his daughter,
but that he spent 20 minutes of that time at the union
rally.9 That conclusion is supported by Tartaglio’s testi-
mony that Justiniano would not have been subject to dis-
cipline if he had told him that he left the rally at any time
before 12 noon, even though Tartaglio knew that Justin-
iano did not need to care for his daughter until 30 min-
utes later. This testimony suggests that the Respondent
discharged Justiniano for a reason other than that he
spent 20 minutes of his FMLA leave on something other
than family or medical necessity.

8 The Respondent, in its answering brief to the Board, suggests that
Justiniano could have requested less than a full 8 hours of FMLA leave
in order to correspond with the time he expected to spend caring for his
daughter. While that is obviously correct, the question is whether the
Respondent demonstrated that it would have terminated Justiniano for
not doing so (based on a reasonable belief that the Respondent would
not have wanted him to report to work for 15 minutes) absent his union
activities.
9 For example, if Mangiaracina had run into Justiniano in the grocery
store and Justiniano had explained, as he did here, that he did not need
to care for his daughter until 12:30 p.m., we do not believe that the
evidence suggests that the Respondent would have terminated Justin-
iano.
The record as a whole demonstrates that the Respon-
dent has not carried its substantial burden of establishing
that it would have terminated Justiniano even in the ab-
sence of his protected activity. See Igramo Enterprise,
351 NLRB 1337, 1337–1342 (2007) (employer must
prove that it would have discharged employee for lawful
reason, not merely that it could have); see also Eddyleon
Chocolate, 301 NLRB at 890. Accordingly, we find that
the Respondent’s discharge of Justiniano violated Sec-
tion 8(a)(3) and (1).
AMENDED CONCLUSIONS OF LAW
1. The 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 solicit-
ing grievances from employees and promising to remedy
those grievances in order to dissuade them from support-
ing the Union.
2. The Respondent violated Section 8(a)(3) and (1) of
the Act by discharging employee Justiniano in order to
discourage union activities and union membership.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(3) and
(1) by discriminatorily discharging Jose Justiniano, we
shall order it to offer him reinstatement and make him
whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from the date of discharge to
the date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest, as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).10
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Bally’s Park Place, Inc. d/b/a Bally’s Atlan-
tic City, Atlantic City, New Jersey, its officers, agents,
successors, and assigns, shall
1. Cease and desist from

10 The General Counsel seeks compound interest computed on a
quarterly basis for any backpay or other monetary awards. Having duly
considered the matter, we are not prepared at this time to deviate from
our current practice of assessing simple interest. See, e.g., Rogers
Corp., 344 NLRB 504 (2005).

BALLY’S ATLANTIC CITY 1323
(a) Telling employees that they cannot talk about the
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, or
any other labor organization, on the casino floor.
(b) Soliciting grievances from employees and promis-
ing to remedy those grievances in order to dissuade them
from supporting the International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers
of America, UAW, or any other labor organization.
(c) Discharging or otherwise discriminating against
any employee for supporting the International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, or any other labor or-
ganization.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Jose Justiniano full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Jose Justiniano whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him in the manner set forth in the
amended remedy section of the decision.
(c) Within 14 days from the date of the this Order, re-
move from its files any reference to the unlawful dis-
charge of Jose Justiniano, and, within 3 days thereafter,
notify him in writing that this has been done and that the
discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Atlantic City, New Jersey, copies of the
attached notice marked “Appendix.”11 Copies of the
notice, which shall be printed in English and Spanish on
forms provided by the Regional Director for Region 4,

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT tell our employees that they cannot talk
about the International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America,
UAW, or any other labor organization, on the casino
floor.
WE WILL NOT solicit grievances from our employees
and promise to remedy those grievances in order to dis-
suade them from supporting the International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, or any other labor or-
ganization.
WE WILL NOT discharge or otherwise discriminate
against any employee for supporting the International
Union, United Automobile, Aerospace and Agricultural
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1324
Implement Workers of America, UAW, or any other la-
bor organization.
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.
WE WILL, within 14 days from the date of the Board’s
Order, offer Jose Justiniano full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority of
any other rights or privileges previously enjoyed.
WE WILL make Jose Justiniano whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Jose Justiniano, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.

BALLY’S PARK PLACE, INC. D/B/A BALLY’S
ATLANTIC CITY
William Slack, Esq., for the General Counsel.
Gerald E. Einsohn, Esq. (Harrah’s Entertainment, Inc.), of Las
Vegas, Nevada, for the Respondent.
Charles E. Sykes, Esq. (Sandler & Sykes), of Huston, Texas, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. On a
charge filed by International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America, UAW
(the Union) on April 16, 2007,1 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 Janu-
ary 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 con-
sideration. On 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.
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 $5000 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. The 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 em-
ployees’ 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 represen-
tation 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. Black-
jack 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 limita-
tions 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 a.m.
BALLY’S ATLANTIC CITY 1325
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 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 al-
lowed to talk about the Union on the casino floor whatsoever.”
On March 22, Justiniano was escorted to speak with Shift Man-
ager 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 Justin-
iano’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 un-
professional 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 conversa-
tion, 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 su-
pervisor 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 viola-
tion because Justiniano was not prevented from discussing the
Union as a result of Hinchey’s statement and he was not disci-
plined for engaging in this conversation. In fact, Justiniano and
the other dealer ceased conversing about union activity when

2 Dealers get a 20-minute break every hour.
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, 301 NLRB 305, 316 (1991). The
Board uses an objective standard to determine whether an em-
ployer’s action is coercive and a violation of the Act. The test
is not whether the coercion succeeded but whether the em-
ployer engaged in conduct which may reasonably tend to inter-
fere with the free exercise of employee rights under the Act.
Williamhouse of California, 317 NLRB 699, 713 (1995).
The fact that the employees here complied with the supervi-
sor’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 breaktime. 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 unprofes-
sional manner when he argued with Grau in front of customers
on a live game. However, the issue here is not whether Justin-
iano acted unprofessionally but whether, under the circum-
stances, the statements of Grau, Jolly, and Hunter, that Justin-
iano 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 irrele-

3 I do not credit the ex-parte, unsworn, hearsay statements in the re-
cord, 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 purport-
edly stronger evidence is available warrants such an inference. Jennie-
O Foods, above at 333. I find no merit in Respondent’s argument that
Justiniano’s refusal to sign the written warning or to add any exculpa-
tory comments about talking about the Union somehow undermines his
credibility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1326
vant.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
An employer interferes with employee rights and violates
Section 8(a)(1) of the Act when it solicits grievances from em-
ployees 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 Justin-
iano. While Catala did not specifically say that Respondent
would remedy the dealers’ grievances, when an employer un-
dertakes to solicit employees’ grievances during an organiza-
tional 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. The 8(a)(3) and (1) Allegations
Justiniano was terminated for allegedly violating a work rule
requiring employees to be “honest and forthcoming in all com-
munications.” Specifically, he was accused of telling Respon-
dent that he was taking leave pursuant to the Family and Medi-
cal Leave Act (FMLA) to care for his daughter but instead at-
tended 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 Respon-
dent mistakenly believed that Justiniano had abused FMLA
when he engaged in the protected activity of attending the Un-
ion rally.
As a part of its effort to organize dealers in Atlantic City, the

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.
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 Respon-
dent soliciting employee grievances.
Union conducted a rally at the Trump Plaza casino on March
31, the day of a representation election involving dealers em-
ployed 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 prounion
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 testi-
fied that he arrived at the rally about 10 a.m. and stood across
the street from the Trump Plaza carrying a prounion sign.
Justiniano has a 13-year old daughter who suffers from se-
vere 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
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 a.m. he left the rally at 11:30 a.m. or
12 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 1 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. Tart-
aglio 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

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.
BALLY’S ATLANTIC CITY 1327
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 speak-
ing 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 Man-
giaracina 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 Tart-
aglio’s office where Tartaglio asked Justiniano if he understood
what FMLA leave is for and what the law was. Justiniano re-
sponded 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. Tart-
aglio told Justiniano that he was suspended for abusing the
FMLA policy and that they would make a 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 p.m.
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 dif-
ferent 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 p.m.
to care for his daughter.
Analysis and Conclusions
The complaint alleges that Justiniano was terminated be-
cause 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 ter-

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.
minated 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 ac-
tion is in issue, it must be analyzed in accordance with the test
outlined by the Board in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (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 motivat-
ing 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 organ-
ize 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 dis-
charge was a direct result of Respondent’s learning that he was
attending a prounion rally on March 31.9 Direct evidence of
unlawful motivation is seldom available and it may be estab-
lished 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,
942 (4th Cir. 1995); 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); 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 re-
port 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

9 Knowledge of the prounion statements by Justiniano which led to
the 8(a)(1) violations found herein by its supervisors is also imputable
to Respondent. Glasforms, Inc., 339 NLRB 1108, 1118 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1328
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 Man-
giaracina, 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 a.m. he ob-
served Justiniano at the rally holding a UAW sign. The testi-
mony 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 Justin-
iano had to go home appeared to be an afterthought. Justin-
iano’s testimony about when he arrived at and left the rally was
no more precise. He said they arrived at 10 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 p.m., 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 origi-
nal 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
(1984); Maxwell’s Plum, 256 NLRB 211, 216 fn. 14 (1981).
Here, the pertinent contradictory testimony by May and Tart-
aglio 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 credi-
bility 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

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 Respon-
dent’s FMLA policy as unreasonable.
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 p.m. (without his daughter)
established that he had used a portion of the FMLA leave im-
properly.
Respondent has established that it has long had a zero toler-
ance 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 rela-
tively 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 termi-
nated 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 an-
other 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 busi-
ness 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 demon-
strated 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 termi-
nated 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., 379 U.S. 21 (1964), that even if Justin-
iano’s discharge was not discriminatory and based on Respon-
dent’s union animus, it violated Section 8(a)(1) of the Act be-
cause 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, per-
haps, subtlely. There, an employee called off work because of
an asthma attack and later the same day felt well enough to be

11 There is no evidence that Respondent based its decision to termi-
nate 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 car-
ing for his daughter.
BALLY’S ATLANTIC CITY 1329
driven to an NLRB Regional office to file a charge against the
employer. The employer suspended the employee because it
believed 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 em-
ployee had lied about his physical condition. Here, Respon-
dent’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 Exh. 10), to care for his daugh-
ter because of her “serious health condition” was the only rea-
son 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 permit-
ted 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 dis-
missed.
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 prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
5. Respondent did not engage in unfair labor practices al-
leged in the complaint not specifically found herein.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]