Bellagio, LLC

National Labor Relations Board - Board Decisions

May 31, 2013

359 N.L.R.B. 1116 (N.L.R.B. 2013)

1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 128
Bellagio, LLC and International Alliance of Theatri-
cal Stage Employees and Moving Picture Tech-
nicians, Artists and Allied Crafts of the United
States and Canada Local 720, AFL–CIO. Peti-
tioner. Case 28–RC–088794
May 31, 2013
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The National Labor Relations Board has considered
objections to an election held October 10, 2012,
1
and the
hearing officer’s report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 10
for and 9 against the Petitioner, with 1 void ballot and no
challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and brief and has adopted the hearing officer’s
findings
2
and recommendations only to the extent con-
sistent with this Decision and Direction of Second Elec-
tion.
The hearing officer found, among other things, that
Alphonse Torres, a freelance audio engineer who occa-
sionally worked for the Employer,
3
was not an agent of
the Union and, consequently, the Union did not engage
in objectionable conduct when Torres told an employee
in the petitioned-for unit that he “better not vote” and
that if the vote “went through” he would be “toast.”
Contrary to the hearing officer, and for the reasons set
forth below, we find that Torres’ conduct was attributa-
ble to the Union and, as such, his comments constitute
objectionable conduct.
4

The relevant facts are as follows. The Employer oper-
ates a hotel and casino in Las Vegas, Nevada. On Sep-

1 All dates are 2012, unless otherwise noted.
2 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have carefully
examined the record and find no basis for reversing the findings.
3 The Employer contends that Torres is a member of the Union.
Torres is a member of IATSE and receives referrals from the Union’s
hiring hall; it is not clear, however, whether he is a member of Local
720. In any event, determining Torres’ local membership status would
not affect our finding, discussed below, that he was vested with appar-
ent authority to act on the Union’s behalf. We therefore do not pass on
this contention.
4 Because we find that Torres’ comments warrant setting aside the
election, we find it unnecessary to pass on the hearing officer’s recom-
mendations concerning the remaining allegations of objectionable
conduct.
tember 7, the Union filed a petition to represent the au-
dio-visual technicians and stage hands in the Employer’s
Production Services Department. Torres had occasional-
ly worked for the Employer in the past, but he did not
work for the Employer at any time during the Union’s
organizing campaign. Sometime before the petition was
filed, Torres visited the Union’s union hall and met with
its business agent, John Gorey, to offer his help with the
Union’s effort to organize the Employer’s employees.
Gorey declined Torres’ offer. Torres, nevertheless, con-
tacted employee Douglas Spicka and arranged to meet
him at a restaurant. At the restaurant, Torres told Spicka
that Gorey had approached him because Torres had
worked at the Bellagio on several occasions, and asked
him to speak with Spicka because Gorey believed that
Spicka was a swing vote. Torres then spoke about the
benefits of union representation.
Thereafter, on about October 4 or 5, Spicka and sever-
al other employees attended an organizing meeting, host-
ed by the Union at the union hall. In attendance at the
meeting were employees in the petitioned-for unit, repre-
sentatives of the Union, and Torres. Gorey led the meet-
ing, distributed union literature, and answered questions
about union benefits. During the meeting, Gorey noticed
that Torres was in attendance, but did not ask him to
leave.
5

On October 4, the Employer held an employee meeting
regarding the upcoming election. After the Employer
opened the floor for discussion, several employees en-
gaged in a heated, angry exchange about the merits of
union representation. During this exchange, Spicka iden-
tified two employees as leaders of the Union’s organiz-
ing effort, and added that he was personally opposed to
that effort.
On October 8, less than 2 days before the election,
Torres sent Spicka a text message that read: “Really
bro? I never pegged u for a rat. Live & learn I guess.
That’s a tough road u chose doug, u could’ve just voted
no.” Upon reading the message, Spicka assumed it relat-
ed to the statements he made at the Employer’s October
4 meeting, and he immediately called Torres. Torres told
Spicka that he heard what Spicka did at the meeting and
it was “not cool.” At the end of the conversation, Torres
told Spicka, “Bro, you know, if this vote goes through,
you’re toast,” and “[t]he vote is going to go through . . .

5 The hearing officer’s report incorrectly stated that Spicka testified
that Torres spoke at the meeting. Spicka did not so testify, nor did any
other witness. Employee Robert Cohen testified, however, that Torres
attended one of the Union’s organizing meetings. Cohen stated that he
believed Torres was at the meeting as “a guy that we could talk to who
works for the Union” because employees had “a lot of questions about
what it’s like to work for the Union.”

BELLAGIO, LLC 1117

you better not vote.” Prior to the election, Spicka shared
the details of Torres’ comments with two other employ-
ees in the petitioned-for unit.
The hearing officer recommended overruling the ob-
jections relating to Torres’ October 8 comments to
Spicka. The hearing officer found that the credited tes-
timony failed to establish that Torres had actual or ap-
parent authority to act on behalf of the Union, and he
further found that his conduct was not objectionable
third-party conduct. Contrary to the hearing officer, we
find that Torres’ agency status is established under the
doctrine of apparent authority and, accordingly, his
comments to Spicka on October 8 constitute objectiona-
ble conduct warranting setting aside the election.
The Board applies common law principles when con-
sidering whether an individual is an agent of the union.
“Apparent authority results from a manifestation by the
principal to a third party that creates a reasonable basis
for the latter to believe that the principal has authorized
the alleged agent to perform the acts in question.” Great
American Products, 312 NLRB 962, 963 (1993).
“[E]ither the principal must intend to cause the third per-
son to believe that the agent is authorized to act for him,
or the principal should realize that this conduct is likely
to create such belief.” Service Employees Local 87 (West
Bay Maintenance), 291 NLRB 82, 83 (1988) (citation
omitted). In evaluating whether an individual is vested
with apparent authority to act as the principal’s repre-
sentative, the Board also considers “whether the state-
ments or actions of an alleged . . . agent [are] consistent
with statements or actions of the [principal].” Pan-Oston
Co., 336 NLRB 305, 306 (2001). As stated in Section
2(13) of the Act, when making the agency determination,
“the question of whether the specific acts performed
were actually authorized or subsequently ratified shall
not be controlling.”
Application of these principles here warrants a finding
that Torres acted with apparent authority when he spoke
to Spicka on October 8. Specifically, we find that, under
the totality of the circumstances, Gorey should have real-
ized that employees in the petitioned-for unit reasonably
would have believed that Torres was an agent of the Un-
ion. As set forth above, Torres had approached Gorey,
offering to assist in the Union’s campaign. Gorey ob-
served Torres, an IATSE member who was not in the
petitioned-for unit, in attendance at the subsequent union
organizing meeting. Although Gorey testified that he
assumed another employee had invited Torres to the un-
ion-sponsored meeting, he did nothing to confirm that
assumption or to otherwise clarify for the employees the
purpose of Torres’ attendance. Rather, he simply al-
lowed Torres to remain present at the organizing meet-
ing. In these circumstances, Gorey should have realized
that, without such clarification, Torres’ presence at the
meeting would reasonably create the impression among
the employees that Torres—like Gorey himself—was
working on behalf of the Union in this organizing effort.
Further, Torres’ prepetition statement to Spicka—that
Gorey had asked that he contact Spicka—although false,
was conduct consistent with the impression created by
Gorey in allowing Torres to attend the union meeting.
This action, too, supports a finding of apparent authority.
See Mercedes Benz of Orlando Park, 333 NLRB 1017,
1018 fn. 8 (2001), enfd. 309 F.3d 452 (7th Cir. 2002)
(consistency between alleged agent’s threats and threats
made by the respondent supported finding of apparent
authority).
6

In finding that Torres did not have apparent authority,
the hearing officer relied on the lack of evidence that
Gorey allowed Torres to speak on behalf of the Union
during the meeting at the union hall. While the existence
of such evidence would certainly weigh in favor of find-
ing that Torres was vested with apparent authority,
7
the
absence of such evidence does not necessarily warrant a
contrary conclusion. Indeed, the relevant inquiry re-
quires a broader consideration of “all the circumstances”
to determine whether the principal’s conduct created a
reasonable basis for a third person to believe that the
purported agent was authorized to act on behalf of the
principal. Great American Products, supra, 312 NLRB
at 963. When all the circumstances are considered, the
lack of evidence that Torres spoke at the meeting is not
dispositive. Accordingly, we disagree with the hearing
officer that a finding of apparent authority necessarily
requires evidence that Torres spoke on behalf of the Un-
ion at the union meeting.
Having found that Torres’ conduct is attributable to the
Union, we further find that his comments to Spicka on
October 8 were objectionable. Specifically we find that
Torres’ statements, “if this vote goes through, you’re

6 The hearing officer declined to draw an adverse inference from the
Union’s failure to call Torres as a witness, finding that Torres was not
favorably disposed to the Union. We disagree. The record shows that
Torres offered to help the Union with the organizing effort, spoke fa-
vorably about the Union when he met with Spicka, and attended the
Union’s organizing meeting. These circumstances demonstrate that he
was indeed favorably disposed to the Union, and thus the Union’s
failure to call him as a witness warrants an inference that his testimony
about “any fact[s] [of] which [he] is likely to have knowledge” would
have bolstered the apparent authority finding. International Automated
Machines, 285 NLRB 1122, 1123 (1987), enfd. mem. 861 F.2d 720
(6th Cir. 1988).
7 See, e.g., Bio-Medical of Puerto Rico, 269 NLRB 827, 828 (1984)
(apparent authority found where the union allowed prounion employees
to speak on its behalf at meetings held by the union for unit employ-
ees).
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

toast,” and “[t]he vote is going to go through . . . you
better not vote,” threatened Spicka with an unspecified
reprisal, attributable to the Union, which would reasona-
bly tend to interfere with the employees’ free choice in
the election. See generally Baja’s Place, 268 NLRB
868, 868–869 (1984) (union representative’s statement,
that he would “get” an employee who opposed the union,
found objectionable as a threat of unspecified reprisal).
Significantly, Torres’ statements were made just 2 days
before the election, and they were disseminated to two
other employees in the petitioned-for unit, thereby affect-
ing a sufficient number of voters to have potentially
changed the outcome.
For these reasons, we find, contrary to the hearing of-
ficer, that Torres’ comments warrant setting aside the
election and directing a second election.
[Direction of Second Election omitted from publica-
tion.]